Lawrence v. Texas

This was the situation when the United States Supreme Court revisited Bowers in June 2003. In Lawrence v. Texas, the Court soundly repudiated the reasoning in Bowers v. Hardwick, overruling a Texas sodomy law in the broadest possible terms. As a result of the court's broad declaration in Lawrence v. Texas, laws in the 13 states that made sodomy a crime were invalidated.

Sponsor Message.

The facts that led to Lawrence v. Texas were similar to Bowers, in that two men--John G. Lawrence and Tyron Garner--were arrested in the Houston home of one of them and charged with sodomy, a class C misdemeanor in Texas that could have resulted in jail time and a $5,000 fine. The men were held in jail overnight and were each fined $200.

The case reached the Supreme Court after the Texas Court of Appeals, relying on Bowers v. Hardwick, had upheld the Texas law. At the Supreme Court, Lawrence and Garner were represented by Paul C. Smith of the Lambda Legal Defense Fund and Texas was represented by the Harris County District Attorney, Charles Rosenthal.

In a ringing endorsement of due process and the right to privacy, Justice Anthony M. Kennedy, joined by Justices Breyer, Ginsberg, Souter, and Stevens, wrote that gay men and lesbians are "entitled to respect for their private lives. . . . The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Perhaps most significant, the Court recognized that what was at issue was not simply the prohibition of a particular sexual act, but liberty itself. Justice Kennedy wrote, "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons."

Moreover, the Court recognized the stigmatizing effect of sodomy laws and of Bowers v. Hardwick. Of the latter, Justice Kennedy wrote, "Its continuance as a precedent demeans the lives of homosexual persons."

The vote to overturn Bowers v. Hardwick was 5 to 4. "Bowers was not correct when it was decided, and it is not correct today," Justice Kennedy concluded. "Bowers v. Hardwick should be and now is overruled."

O'Connor's Concurring Opinion

Although Justice O'Connor (who in 1986 had been in the majority in Bowers v. Hardwick) did not vote to overrule Bowers, she did join the majority in Lawrence v. Texas in invalidating the Texas sodomy law. She did so on equal protection grounds, finding that, "The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction."

Had Justice O'Connor's reasoning been endorsed by a majority on the Court, the four sodomy laws that applied only to homosexual sodomy would have been struck down, but the nine laws that applied to both homosexual and heterosexual sodomy would not have been affected.

The Dissents

Justices Scalia, Rehnquist, and Thomas voted to uphold the Texas law (and the right of all states to criminalize consensual sodomy). In an intemperate dissent, more political than judicial in tone, Scalia, joined by Rehnquist, bitterly denounced the majority opinion as "the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

In a separate dissent, Thomas called the Texas law "uncommonly silly" and stated that he would vote for its repeal were he a Texas legislator, but he could not declare it unconstitutional because he did not find a right to privacy in the Constitution.

Aftermath of Lawrence v. Texas

The Court's ruling in Lawrence v. Texas is the most significant legal victory in the history of the gay rights movement. It has been likened to such seminal Supreme Court decisions as Brown v. Board of Education of Topeka, Kansas (which overturned Plessy v. Ferguson and banned school segregation) and Roe v. Wade (which legalized abortion).

Certainly, most gay men and lesbians--especially those in the 13 states that stubbornly retained sodomy laws--felt that with the ruling in Lawrence v. Texas a great psychological burden had been lifted.

Gay and lesbian rights activists predicted that the overturning of Bowers will embolden the movement for equality. By acknowledging the legitimacy of gay and lesbian relationships, the United States Supreme Court has given the glbtq movement a new credibility in debates about such issues as marriage, partner benefits, adoption, and parental rights.

Although there are frequently social and legal barriers to overcome, adoption is an important way in which lesbian and gay male couples create families.

The U.S. gay rights movement has made significant progress toward achieving equality for glbtq Americans, and in the process has become more inclusive and diverse, but much remains to be done.

Marches on Washington in support of the rights of glbtq people have been a significant part of the modern movement for equality.

The Uniform Code of Military Justice, adopted in 1950, is the fountainhead of the United States' military's discriminatory policies toward homosexual personnel.

Both parades and marches have served to render the glbtq community visible; whereas marches typically attempt to effect political change, parades and pride events affirm identity and community.

Lesbian and gay couples have been fighting for the freedom to marry since the dawn of the modern glbtq struggle for equality; despite some success abroad, progress toward same-sex marriage in the United States has been slow.

First used to refer only to anal intercourse, sodomy was progressively defined by the Church Fathers, and many later lawmakers, to include all sexual acts that could not result in procreation.

Sodomy laws, which provided the legal basis for police harassment of sexual minorities, were conclusively overturned by the United States Supreme Court in 2003, after more than half a century of efforts at reform.

For more than four decades, the ACLU has been at the forefront of litigation and education designed to secure glbtq rights on a variety of fronts.

The Defense of Marriage Act (DOMA) authorizes states to refuse to recognize same-sex marriages or domestic partnerships or civil unions and it requires that federal bureaus and agencies recognize only opposite-sex marriages.

The "Don't Ask, Don't Tell" policy, in effect from 1993 until 2011, was a compromise intended to end discrimination against gay men and lesbians in the U. S. military, but it failed to halt discharges based solely on sexual orientation.

New England's leading legal organization dedicated to equal justice for glbtq individuals and families, Gay & Lesbian Advocates & Defenders (GLAD) provides litigation, advocacy, and educational work in all areas of glbtq civil rights.

Log Cabin Republicans, a gay and lesbian organization, is dedicated to the principle that equal treatment under the law for gay men and women is consistent with the principles and values of the Republican Party.

The Republican Party of the United States has not been supportive of glbtq issues, despite the efforts of the Log Cabin Republicans.

Romer v. Evans (1996) marks the first time in its history that the U. S. Supreme Court recognized lesbians and gay men as worthy and deserving of equal rights.

In 2001, Anthony D. Romero became the first Latino and first openly gay man to lead the American Civil Liberties Union, the nation's leading public interest law firm.

Evan Wolfson has participated in some of the crucial legal battles in the struggle for glbtq rights, and has been particularly visible in the quest for marriage equality.