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social sciences

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Bowers v. Hardwick / Lawrence v. Texas  
page: 1  2  

By 2003, the number of states with sodomy laws had shrunk to 13--mainly in the South and the Midwest. Nine of these states prohibited both heterosexual and homosexual sodomy, while four prohibited only homosexual sodomy.

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.

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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.

Claude J. Summers
Craig Kaczorowski

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Bronner, Ethan. "Ex-Justice Powell Has 2d Thoughts on Sodomy Case." Boston Globe (October 26, 1990): A-3.

Dickerson, Jeff. "Not Government's Role; Sodomy Law Was Unenforced, Unenforceable." Atlanta Journal (November 24, 1998): A-12.

Eliasberg, Kristin. "Pride and Privacy as the Supreme Court Prepares to Hear Landmark Gay-Rights Case, Advocates Debate Strategy." Boston Globe (March 2, 2003): E-1.

Greenhouse, Linda. "Justices to Reconsider Ruling Against Sex Between Gays." New York Times (December 3, 2002): A-26.

_____. "Justices, 6-3, Legalize Gay Sexual Conduct in Sweeping Reversal of Courts '86 Ruling." New York Times (June 27, 2003): A-1.

Hickey, Adam. "Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy." The Yale Law Review 111.4 (January, 2002): 993-1030.

Murphy, Dean E. "Gays Celebrate, and Plan Campaign for Broader Rights." New York Times (June 27, 2003): A-20.

Sack, Kevin. "Georgia's High Court Voids Sodomy Law." New York Times (November 24, 1998): A-16.


    Citation Information
    Author: Summers, Claude J. ; Kaczorowski, Craig  
    Entry Title: Bowers v. Hardwick / Lawrence v. Texas  
    General Editor: Claude J. Summers  
    Publication Name: glbtq: An Encyclopedia of Gay, Lesbian, Bisexual,
Transgender, and Queer Culture
    Publication Date: 2004  
    Date Last Updated September 10, 2010  
    Web Address  
    Publisher glbtq, Inc.
1130 West Adams
Chicago, IL   60607
    Today's Date  
    Encyclopedia Copyright: © 2002-2006, glbtq, Inc.  
    Entry Copyright © 2004, glbtq, inc.  


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