52 RI Bar J., No. 3, Pg. 5 (November, 2003). A Victory for Gay Rights in Lawrence v. Texas.

• Author: JERRY ELMER, ESQ.

Rhode Island Bar Journal

Volume 52.

52 RI Bar J., No. 3, Pg. 5 (November, 2003).

A Victory for Gay Rights in Lawrence v. Texas

A Victory for Gay Rights in Lawrence v. TexasJERRY ELMER, ESQ.Jerry Elmer is a partner in Goldenberg & Muri LLP where he practices commercial litigation.On June 26, 2003, near the end of its spring term, in Lawrence v. Texas, (fn1) the United States Supreme Court, in an historic ruling, struck down Texas's anti-sodomy law. But the Court did much more. It affirmed gay rights, and grounded its ruling squarely in the substantive due process provisions of the Fourteenth Amendment; the Court's landmark ruling thus reversed a trend of recent decades that had seen substantive due process jurisprudence slide into desuetude as the Court's center of gravity moved steadily right. All three of the centrist Justices on the Court - Souter, Kennedy and O'Connor - voted to strike down the Texas anti-sodomy law; (fn2) only Justices Rehnquist, Scalia, and Thomas dissented.

BackgroundPart of what made the Supreme Court's ruling in Lawrence so remarkable is that it directly reversed a decision only 16 years old, Bowers v. Hardwick, (fn3) a dreadful ruling that easily earned its place in the pantheon of the all-time worst Supreme Court decisions, along with such other notable cases as Dred Scott v. Sanford, (fn4) holding that no Negro, free or slave, could be a "citizen" of the United States for purposes of asserting diversity jurisdiction; Plessy v. Ferguson, (fn5) upholding racial segregation so long as accommodations were separate but equal; and Lochner v. New York, (fn6) striking down New York's 60-hour limit on bakery employees' work week, and giving rise to the eponymously named era.

Bowers upheld a Georgia anti-sodomy statute that differed from the Texas law at issue in Lawrence in one crucial respect. The Georgia statute, Georgia Code § 16-6-2, criminalized "any sexual act involving the sex organs of one person and the mouth or anus of another . . ." (fn7) Thus, acts of fellatio or cunnilingus, by legally married heterosexuals, in the privacy of their own homes, were covered by the Georgia statute. (fn8) In contrast, the Texas statute at issue in Lawrence criminalized only homosexual sodomy. Texas Penal Code § 21.06(a) provided that "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." (fn9) "Deviate sexual intercourse" was defined as "any contact between any part of the genitals of one person and the mouth or anus of another person." (fn10)

The Bowers decision was notable for its bizarre language and even more bizarre reasoning. Writing for the majority, Justice Byron White made the following fatuous statement: "[R]espondent would have us announce a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." (fn11) White explained, "proscriptions against [sodomy] have ancient roots" (fn12) and "sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 states when they ratified the Bill of Rights." (fn13) In a concurring opinion, Chief Justice Warren Burger went back even further into the remote mists of time to find suitable precedent for upholding the Georgia statute at issue:

Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. (fn14)In other words, practices that were common at a time when Christians were fed to lions for the entertainment of the masses provide a sensible and reasonable basis for contemporary jurisprudence.Lawrence Comes to the CourtFrom this background, it can readily be seen that the petitioners in Lawrence - the ones seeking to challenge the Texas anti-sodomy statute - could plausibly have relied on two very different constitutional arguments: substantive due process and equal protection. In this respect, Lawrence finds a close analogy to the twin rulings the Supreme Court issued on the same day in 1997 on the issue of physician-assisted suicide, Vacco v. Quill (fn15) and Washington v. Glucksberg. (fn16) In Glucksberg, the argument was made that there is a substantive due process right to physician-assisted suicide. In Quill, the argument was that there was an equal protection right to physician-assisted suicide. (fn17) Indeed, in significant respects, the two separate prongs of the arguments in Lawrence that were presented to the Court (substantive due process and equal protection) tracked closely the same two sets of arguments presented in the suicide cases - with one notable difference: in Glucksberg and Quill, both the substantive due process and equal protection arguments were squarely rejected. In Lawrence, the substantive due process argument was accepted.

The substantive due process argument goes something like this. In Griswold v. Connecticut, (fn18) the Court struck down a Connecticut statute banning the sale of contraceptives, even by physician's prescription, even to legally married heterosexual couples. (fn19) In 1972, in Eisenstadt v. Baird, (fn20) the right to access to contraceptives was extended to unmarried persons. In Roe v. Wade, (fn21) the Supreme Court found that the substantive due process right to privacy extends to a constitutional right to abortion. The common thread running through these cases is the rule of governmental non-interference in intimate, personal decisions, especially those regarding sexuality. (fn22)

But there were multiple problems with the substantive due process argument, too. Most obviously, the appellees in Bowers had relied solely on substantive due process and they had lost. Moreover, in an almost unbroken series of rulings since Roe, the Court had seemed reluctant to expand further the ambit of substantive due process rights. (fn23) Over and over, in a variety of contexts, the Court had said that it was reluctant to "discover new fundamental rights embedded in the Due Process Clause" because to do so would be to bring the Court to the brink of "illegitimacy." (fn24)

The equal protection argument seems very simple at first and was powerfully suggested by the crucial difference between the Georgia statute...