The Right Decision for the Wrong Reason: the Supreme Court Correctly Invalidates the Texas Homosexual Sodomy Statute, but Rather Than Finding an Equal Protection Violation in Lawrence v. Texas, the Court Incorrectly and Unnecessarily Overrules

• Publication year: 2022

37 Creighton L. Rev. 653. THE RIGHT DECISION FOR THE WRONG REASON: THE SUPREME COURT CORRECTLY INVALIDATES THE TEXAS HOMOSEXUAL SODOMY STATUTE, BUT RATHER THAN FINDING AN EQUAL PROTECTION VIOLATION IN LAWRENCE V. TEXAS, THE COURT INCORRECTLY AND UNNECESSARILY OVERRULES

Creighton Law Review

Vol. 37

THE RIGHT DECISION FOR THE WRONG REASON: THE SUPREME COURT CORRECTLY INVALIDATES THE TEXAS HOMOSEXUAL SODOMY STATUTE, BUT RATHER THAN FINDING AN EQUAL PROTECTION VIOLATION IN LAWRENCE V. TEXAS, THE COURT INCORRECTLY AND UNNECESSARILY OVERRULES BOWERS V. HARDWICK

INTRODUCTION

In 1986, in Bowers v. Hardwick,(fn1) the Supreme Court of the United States considered the constitutionality of a Georgia anti-sodomy statute as it applied to homosexuals.(fn2) The Supreme Court in Bowers refused to announce homosexuals had a fundamental right to engage in sodomy.(fn3) While recognizing the Court had previously construed a constitutional right to privacy with regard to child rearing, familial relationships, procreation, abortion and marriage, the BowersCourt determined the right to privacy did not extend to homosexual sodomy.(fn4) The Court declared there was no connection between homosexuality and other privacy rights.(fn5) The Court rejected the notion that prior cases stood for the idea that private consensual sexual conduct between adults was an area unreachable by state action, noting states had the right to prosecute such crimes as adultery and incest.(fn6)

Ten years later, in Romer v. Evans,(fn7) the Court invalidated an amendment to the Colorado Constitution that made it unlawful for cities to designate homosexuals as a protected class.(fn8) The Court invalidated the Colorado amendment on the basis of equal protection.(fn9) The Court quoted Justice Harlan, stating the Constitution "neither knows nor tolerates classes among citizens."(fn10) The Court determined the Colorado amendment put homosexuals in a separate class, by taking away specific legal protections from homosexuals that were afforded to others.(fn11) Rather than furthering a legitimate government interest, the Court determined the Colorado amendment made homosexuals unequal to others.(fn12)

In 2003, the Court again considered the constitutionality of an anti-sodomy statute in Lawrence v. Texas,(fn13) but this time the statute applied to homosexuals only.(fn14) In Lawrence, two men convicted of violating the Texas homosexual sodomy statute challenged the constitutionality of the Texas statute on equal protection and due process grounds.(fn15) Rather than deciding the case on the basis of equal protection as the Court had done in Romer, the Court chose to base its decision on due process.(fn16) For this reason, the Court determined it was necessary to reexamine its prior holding in Bowers that there was no fundamental right to engage in homosexual sodomy.(fn17) Although the Lawrence Court never expressly stated there was a fundamental right to engage in homosexual sodomy, it nevertheless overruled Bowers.(fn18)

This Note will first examine the facts and holding of Lawrence.(fn19) This Note will then provide an overview of prior cases that have interpreted equal protection and the right to privacy.(fn20) This Note will next analyze the holding in Lawrence.(fn21) In particular, this Note will explain the proper basis for invalidating the Texas statute was the Equal Protection Clause.(fn22) This Note will further show the Supreme Court of the United States incorrectly and unnecessarily overruled Bowers because Lawrence did not explicitly contradict the central holding in Bowers that there is no fundamental right to engage in homosexual sodomy.(fn23) This Note will also examine the proper analysis for overruling precedent and will show the Lawrence Court improperly applied this analysis when it chose to overrule Bowers.(fn24) This Note will conclude by demonstrating that although the Court made the correct decision when it invalidated the Texas statute, the decision was based on the wrong reasoning, thereby setting a dangerous precedent.(fn25)

FACTS AND HOLDING

On September 17, 1998, officers from the Harris County Police Department responded to a weapons disturbance report at the dwelling of John Geddes Lawrence ("Lawrence") in Houston, Texas.(fn26) An informant claimed a man was armed and "going crazy" in Lawrence's apartment; however, the officers instead found Lawrence participating in a sexual act with another male, Tyron Garner ("Garner").(fn27) The officers arrested Lawrence and Garner, and imprisoned the two men overnight in Harris County, Texas.(fn28) In an unreported opinion, the Justice of the Peace Court convicted the two men of engaging in homosexual sodomy, which violated section 21.06 of the Texas Penal Code.(fn29) Lawrence and Garner appealed to the Harris County Criminal Court for a trial de novo, seeking to overturn the convictions, arguing the Texas statute violated the Fourteenth Amendment's Equal Protection Clause and the Texas Constitution.(fn30) Lawrence and Garner also contended the Texas statute violated their rights to due process and privacy, and they suggested the decision in Bowers v. Hardwick(fn31) was incorrect.(fn32) Lawrence and Garner's challenge was unsuccessful, and Judge Sherman Ross fined each man two-hundred dollars plus court costs after the men pleaded nolo contendere.(fn33)

Lawrence and Garner next appealed to the Court of Appeals for the Fourteenth District of Texas, arguing the convictions violated their rights to equal protection and due process of law.(fn34) A threejudge panel of the court heard their case and agreed with Lawrence and Garner that the Texas statute violated Texas' Equal Rights Amendment.(fn35) The panel reversed Lawrence and Garner's convictions on June 8, 2000.(fn36) Following the reversal of Lawrence and Garner's convictions, the Court of Appeals for the Fourteenth District of Texas granted the state's motion for rehearing en banc.(fn37) After the case was heard en banc, the court reinstated the convictions on March 15, 2001.(fn38) The en banc court did not accept Lawrence and Garner's privacy argument, and the court determined the Texas statute survived rational review because it preserved public morals, which the court determined was a legitimate government interest.(fn39) Justice Harvey Hudson, writing for the majority, reasoned the Texas statute did not classify people according to sexual orientation; rather, the Texas statute dealt solely with conduct, making it facially neutral.(fn40) Because the court did not treat sexual orientation as a suspect class, the court subjected the Texas statute to rational review.(fn41) The court determined the state's desire to preserve public morals was a legitimate government interest, reasoning most Texas laws preserved morality by design.(fn42) The court rejected the appellant's argument that the court should subject the Texas statute to heightened scrutiny merely because it alluded to gender.(fn43) The court struck down this argument because the appellants failed to show the Texas statute disparately affected women and men; therefore, the court determined the Texas statute did not discriminate based on gender.(fn44) Finally, the court determined nothing in the Federal Constitution or the Texas Constitution created a zone of privacy that would protect homosexual sodomy.(fn45)

Justice John Anderson, joined by Senior Chief Justice Paul Murphy, wrote a dissenting opinion, agreeing with the majority on the appellant's due process claim of a right to privacy but disagreeing with the majority's treatment of the equal protection claim.(fn46) Justice An-derson agreed with the majority's conclusion that Bowers controlled the appellant's due process claim, and there was no fundamental right to engage in homosexual sodomy.(fn47) However, Justice Anderson determined the Texas statute would be unconstitutional even if the court applied the most deferential standard of review because preserving public morality did not constitute a sufficient state interest to justify the different treatment of homosexuals and heterosexuals.(fn48) Additionally, Justice Anderson contended the court should subject the Texas statute to heightened scrutiny because the classification drawn by the statute was not gender neutral, and the statute would not survive heightened scrutiny because the state failed to show an important governmental objective to justify the classification.(fn49) Because the statute based criminality of conduct solely on the gender of the individual participating in the conduct, Justice Anderson was unconvinced there was no gender discrimination simply because the Texas statute applied to both men and women.(fn50)

When Lawrence and Garner filed a petition for discretionary review, the Texas Court of Criminal Appeals refused to review the case.(fn51) Lawrence and Garner filed a petition for a writ of certiorari with the United States Supreme Court, which granted certiorari to consider whether Lawrence and Garner's convictions violated the Equal Protection Clause of the Fourteenth Amendment, whether the convictions violated Lawrence and Garner's rights to privacy and liberty, and whether the Court should overrule Bowers.(fn52)

The Supreme Court reversed the decision of the Court of Appeals for the Fourteenth District of Texas and remanded the case for further proceedings.(fn53) Justice Anthony Kennedy, writing for...