Gay and Lesbian Rights
This section allows readers to investigate the facts, the arguments, and the legal reasoning that produced the Lawrence v. Texas decision. It also sheds light on the roles and required skills of attorneys and judges in resolving disputes.
As you read this section you may wish to consider the following issues:
How did the appellant's description of the issues before the Court, or questions presented, differ from the appellee's description?
How did the courts and the two parties differ in describing the meaning of particular prior cases to the present case?
How did the holdings (conclusions of law) of the appeals court differ from those of the Supreme Court?
On what points in the Supreme Court's majority opinion do the concurring and dissenting justices agree and disagree?
Lawrence v. Texas was a significant gain for the cause of gay and lesbian civil rights. In this decision, the Supreme Court held that state laws prohibiting sodomy were unconstitutional, arguing that any government interest in consensual sex between adults, either homosexual or heterosexual, infringed upon the right to liberty protected by the Due Process clause of the Fourteenth Amendment. This argument follows the analysis made in rulings such as Roe v. Wade and Griswold v. Connecticut, which struck down bans on abortion and birth control (respectively) on the basis that such bans infringed on a person's right to liberty, which has been determined to include the rights to privacy and autonomy. Lawrence essentially overturned the 1986 precedent of Bowers v. Hardwick, in which the Court upheld a Georgia law prohibiting sodomy similar to the one struck down in Lawrence. A central argument for the decision in Bowers was that a long history of laws existed in Western civilization that have sought to repress homosexual conduct. The majority in Lawrence noted, however, that many sodomy laws have been overturned since Bowers, reflecting a new trend. Only 13 states in 2003, as compared to all 50 in 1961, still had laws prohibiting sodomy.
The Lawrence ruling caused considerable controversy. Opponents to the ruling contended that the majority manipulated the due process clause to push the cause of gay rights. They also disagreed with the overturning of Bowers v. Hardwick, because it took away from the states the power to determine their own moral laws.
JOHN GEDDES LAWRENCE AND TYRON GARNER,
THE STATE OF TEXAS, APPELLEE
March 15, 2001, Substituted Majority, Concurring, and Dissenting Opinions Filed
PRIOR HISTORY: On Appeal from County Criminal Court at Law No. 10. Trial Court Cause Nos. 98–48530 and 98–48531. Harris County, Texas. Sherman A. Ross, Judge.
This Opinion Substituted on Grant of Rehearing for Withdrawn Opinion of June 8, 2000.
DISPOSITION: Judgment of trial court affirmed.
Mitchell Katine of Houston, TX, Susanne B. Goldberg of New York, NY, Ruth E. Harlow of New
York, NY, for appellants.
William Delmore, III of Houston, TX, for appellee. J. Harvey Hudson, Justice. Justices Yates, Fowler, Edelman, Wittig, Frost, and Amidei join this opinion; Justice Yates also filed a concurring opinion in which Justices Hudson, Fowler, Edelman, and Frost join; Justice Fowler also filed a concurring opinion in which Justices Yates, Edelman, Frost, and Amidei join. Justice Anderson filed a dissenting opinion in which Senior Chief Justice Murphy joins. Senior Chief Justice Paul C. Murphy and Former Justice Maurice Amidei sitting by assignment.
Appellants, John Geddes Lawrence and Tyron Garner, were convicted of engaging in homosexual conduct. They were each assessed a fine of two hundred dollars. On appeal, appellants challenge the constitutionality of Section 21.06 of the Texas Penal Code, contending it offends the equal protection and privacy guarantees assured by both the state and federal constitutions. For the reasons set forth below, we find no constitutional infringement.
While investigating a reported "weapons disturbance," police entered a residence where they observed appellants engaged in deviate sexual intercourse.1 It is a Class C misdemeanor in the State of Texas for a person to engage "in deviate sexual intercourse with another individual of the same sex." TEX. PEN. CODE ANN. § 21.06 (Vernon 1994). However, because appellants subsequently entered pleas of nolo contendere, the facts and circumstances of the offense are not in the record. Accordingly, appellants did not challenge at trial, and do not contest on appeal, the propriety of the police conduct leading to their discovery and arrest. Thus, the narrow issue presented here is whether Section 21.06 is facially unconstitutional.
In their first point of error, appellants contend Section 21.06 violates federal and state equal protection guarantees by discriminating both in regard to sexual orientation and gender.2
The universal application of law to all citizens has been a tenet of English common law since at least the Magna Carta, and our whole system of law is predicated on this fundamental principle. Truax v. Corrigan, 257 U.S. 312, 332, 66 L. Ed. 254, 42 S. Ct. 124 (1921). Nevertheless, our federal constitution did not originally contain an express guarantee of equal protection. While an assurance of equal protection could be implied from the Due Process Clause of the Fifth Amendment, this rudimentary guarantee was
complicated by constitutional distinctions between "free" persons and persons "held to service or labour." U.S. CONST. arts. I, § 2 & IV, § 2.3
Although the constitution did not establish or legalize slavery, it certainly recognized its existence within the states which tolerated it. See The Amistad, 40 U.S. 518, 551, 10 L. Ed. 826 (1841). This constitutional recognition of slavery undoubtedly facilitated a union of the original colonies, but it postponed until a later day a resolution of the tension between involuntary servitude and the concept of equal protection of laws implied by the Fifth Amendment.4 Reconciling the institution of slavery with the notion of equal protection ultimately proved to be impossible. In the end, a constitutional "clarification" was obtained by the force of arms, six hundred thousand lives, and two constitutional amendments.
In 1863, while the outcome of the civil war remained very much in doubt, President Lincoln issued his Emancipation Proclamation purporting to free slaves found within the confederate states. In 1865, just months after general hostilities had ended, the Thirteenth Amendment was adopted. It declared that "neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction." U.S. CONST. amend. XIII, § 1. The abolition of slavery, however, was not immediately effective in bestowing the equal protection of law upon all persons. Several centuries of slavery had instilled a deep cultural bias against people of color. Individual southern states began enacting the so-called Black Codes which were designed to repress their black citizens and very nearly resurrect the institution of slavery. City of Memphis v. Greene, 451 U.S. 100, 132, 67 L. Ed. 2d 769, 101 S. Ct. 1584 (1981) (White, J., concurring). In response to these events, the Republican Congress passed the Civil Rights Act of 1866 in an attempt to ensure equal rights for former slaves. General Bldgs. Contrs. Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). In 1868, the Fourteenth Amendment was adopted and its Equal Protection Clause enjoined the states from denying to any person the equal protection of the laws.
Thus, the central purpose of the Equal Protection Clause "is to prevent the States from purposefully discriminating between individuals on the basis of race." Shaw v. Reno, 509 U.S. 630, 642, 125 L. Ed. 2d 511, 113 S. Ct. 2816...