Lawrence v. Texas, 2003
-Chrissie
Listen here: https://www.spreaker.com/user/bqn1/hwts112
The idea for this episode comes from a less-than-usual source in that it was suggested by Supreme Court Justice Clarence Thomas in his concurring opinion regarding Dobbs v. Women’s Health, where he suggested that this case, among others, be reexamined in order that it might be overturned.
Laws governing morality have existed throughout human history. They range in their level of severity and intrusiveness from sumptuary laws dictating the type of cloth or jewelry one might wear or rationing during a war to dictates about how one might act in the privacy of one’s own home. Sexual activity is often the subject of moral legislation; the legalities of who is allowed to have sex with whom and under what circumstances is often related to how property is passed from one generation to another. For example, in societies in which inheritance is passed on the male line, the culture often requires virginal brides, in order to assure that a man’s wife only produces sons for him. These societies also tend to create social norms that suppress homosexual behavior, which can then become laws. This is the origin of modern laws that dictate sexual behavior.
The American colonies had many such laws, and these carried over into the United States. Under the auspices of the Second Great Awakening, state and local governments made sure to codify such laws. Despite being termed “sodomy laws,” they generally outlawed all sexual activity which was not potentially procreative, including oral and anal sex. These laws were supposed to apply irrelevant of the sex of those involved but were, in practice, used primarily against gay men. In the early 1960s, advocacy groups began taking on cases with the idea of seeing such laws deemed unconstitutional and then repealed. Over the next decade, the US Supreme Court (SCOTUS) heard cases regarding sexual matters between consenting adults and decided in favor of personal privacy. Griswold (1965) and Eisenstadt (1972) ended the criminalization of birth control throughout the country and Roe (1973) decriminalized abortion. The basis of these rulings was the Fourth Amendment prohibition against unwarranted search and seizure of private homes and property and on the guarantee of due process in the Fourteenth Amendment. However, the Court did not hear a case about sodomy laws until Bowers v. Hardwick in 1986, in which it upheld the criminalization of sodomy, with the majority opinion citing longstanding moral opposition to homosexual activity. The dissent cited Eisenstadt, stating that government intrusion on a person’s life is equally intrusive irrelevant of their sexual orientation.
In September 1998, in Houston, Texas, John Geddes Lawrence and Tyron Garner were arrested on charges of “deviant sex.” The law under which they were charged was one that specifically criminalized same-sex anal and oral sex, changed in 1973 from a blanket ban which had covered both hetero- and homosexual activity. The two men initially entered a not guilty plea, but changed it to no contest after consultation with lawyers from the Lambda Legal Defense and Education Fund. They were each fined $100 plus court fees, but requested that the fine be increased to $125 in order to place them above the threshold for an appeal.
The appeal was heard by the Harris Texas County Court. Lawrence and Garner’s lawyers requested that the charges be dropped on the basis of the Equal Protection Clause of the Fourteenth Amendment, because Texas law did not prohibit sodomy for heterosexual couples. Included in this request was a challenge against Bowers, arguing that it had been wrongly decided. The court refused to dismiss the case; Lawrence and Gardner were each fined $200 on another no contest plea. The next appeal was heard by a three-judge panel of the Texas Fourteenth Court of Appeals; in June 2000, they announced a two-one decision that the Texas law violated the state constitution. The case was then taken up by the entire bench of the Fourteenth Court, which reversed the previous decision without rehearing any arguments in March 2001. The attorneys for Lawrence and Garner then requested review by the Texas State Court of Criminal Appeals, but were refused, prompting them to petition the Supreme Court.
SCOTUS agreed to hear the case. Oral arguments were conducted in March 2003, with the decision announced on 26 June 2003: 6-3 that the Texas law violated both the Equal Protection Clause and the Due Process Clause. This decision decriminalized non-procreative sexual activity between consenting adults throughout the United States. It was also highly influential in the 2015 Obergefell v. Hodges decision which legalized same-sex marriage. We’ll be covering Obergefell in an upcoming episode.