See Lawrence v. Texas for the facts of the case and other background.


On June 26, 2003, the United States Supreme Court announced its decision in Lawrence v. Texas, 539 U.S. ___ (2003). This decision is a libertarian victory, the scope of which is suggested by the introduction to the majority opinion by Justice Kennedy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Maj.Op. at 1.

The Texas statute in question prohibited sodomy, but only between persons of the same sex. Other states have sodomy statutes which apply to everyone regardless of sexual orientation, but most states have repealed their sodomy laws. The Court thus had three (3) options here:

  • uphold the law (and somehow justify discriminating against homosexuals)
  • strike the law on "Equal Protection" grounds (because it discriminates against homosexuals)
  • strike the law on "Substantive Due Process" grounds (as a denial of liberty)

The "Due Process" grounds are by far the broadest reason for striking down the law, and would arguably extend to any law trying to regulate consensual sex between adults in private. Recognizing a "liberty interest" in sexual privacy would directly contradict a prior Supreme Court case --Bowers v. Hardwick, 478 U. S. 186 (1986)-- and would requiring overruling this precedent. Five (5) of the nine (9) justices agreed to this.

One (1) Justice, Sandra Day O'Connor, agreed that the law should be struck, but favored the narrower, "Equal Protection" grounds, and did not want to overrule Bowers v. Hardwick, a decision she had joined.

Three (3) justices, Chief Justice William Rehnquist, and Justices Scalia and Thomas, dissented and joined in an opinion authored by Justice Scalia, arguing that Bowers v. Hardwick should not be overruled and that moral disapproval was a constitutionally sufficient grounds for discriminating against homosexuals.


Texas statute, making it a crime for two persons of the same sex to engage in certain intimate sexual conduct, violates the Due Process Clause of the Fourteenth Amendment


The case which set this conflict up, Bowers v. Hardwick, is somewhat of an anomaly. As Justice Kennedy's majority opinion points out, it is hard to square with similar cases decided before and since.

Before Bowers there was a series of cases recognizing privacy rights in intimate matters of sex and reproduction. In Griswold v.Connecticut, 381 U. S. 479 (1965), the Court struck down a law prohibiting the use and distribution of contraceptives to married people, and in Eisenstadt v. Baird, 405 U. S. 438 (1972), that ruling was extended to unmarried people. In 1967, the Court struck down laws against miscegenation, asserting a fundamental right to marry, regardless of racial prejudice. Loving v. Virginia, 388 U.S. 1 (1967). These cases provided the background for the decision in Roe v. Wade, 410 U. S. 113 (1973), which legalzed abortion. Throughout this period, intimate sexual matters were said to be protected by a "right to privacy", not explicitly stated anywhere in the Constitution, but arguably implied by the Bill of Rights.

Then in 1992 (after Bowers) the Court reaffirmed the "right to privacy", only this time reviewing privacy as a substantive "liberty interest", protected by the Due Process Clause of the Fourteenth Amendment. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). “Our obligation is to define the liberty of all, not to mandate our own moral code.” Id. at 850. The central issue decided in Casey, however, was that Roe v. Wade should not be overrruled.

In Casey, the Court was able to articulate its privacy/liberty doctrine as a general principle, even a metaphysics of "personhood" (drawing upon the academic works of the Constitutional scholar and lawyer, Laurence Tribe), which it stated as follows:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Id. at 851

Against this background, the case of Bowers v. Hardwick (in which the losing side was represented by the aforenoted Professor Tribe) is almost entirely inexplicable and unjustifiable. In Bowers, Justice Byron White made certain sweeping historical pronouncements, arguing that sodomy could not be a fundamental right, because it had always been a crime in every civilized nation. Justice Kennedy's majority opinion now reports, however, that "sodomy", until very recently, was a catch-all term for a variety of sexual misconduct, including many violent and coercive acts which are still regarded as criminal conduct, such as child molestation. Up until the latter part of the 20th century, none of these laws singled out homosexuals as such. Laws targeting homosexuals are, in fact, a relatively recent innovation.

The Dissent

Justice Scalia's first argument (and generally a justice's first argument is the one they perceive to be the best argument) invokes stare decisis. If the Court is so willing to overrule Bowers v. Hardwick, Justice Scalia contends, then it should demonstrate the same enthusiasm for overruling Roe v. Wade. This appears to be nothing more than a flippant remark for the amusement of Justice Scalia's conservative fans. Both decisions have, indeed, been subject to extensive criticism (though usually not by the same people). Retaining Roe and jettisoning Bowers, however, was entirely consistant with the Court's sexual privacy doctrine.

Precedent does not get much weight in constitutional law. The strongest argument for "letting the decision stand" can be made when society in general, and government in particular, has conformed its conduct to the legal standard set forth in the case. A well known example would be Miranda v. Arizona, from which lower courts and law enforcement have crafted an entire set of rules and procedures for arrests, including the famous "Miranda warning", relying on the rule set down by the Court. In the case of Bowers v. Hardwick , the states have not relied on the case by enacting sodomy laws. To the contrary, far fewer states now have such laws than when Bowers v. Hardwick was decided, in 1986.

The second dissenting argument begins with the observation that "liberty" is restrained by many laws, including laws prohibiting "working more than 60 hours a week in a bakery", which is an allusion to the infamous 1906 case of Lochner v. New York, in which a "substantive due process" argument was used by the Court to strike down a state fair wage and hours law. The Court which decided Lochner was widely criticized for imposing its own preferred political and economic theories over the democratically-expressed opinion of the people of the State of New York. Justice Scalia thus suggests (and later explicitly states) that today's court is imposing its views (or the views of the legal profession) over the will of the people of Texas. Justice Scalia's own conservative activism --not to mention the case of Bush v. Gore-- would indicate that he defers to "the people" only when they agree with his own views.

Justice Scalia also observes that the doctrine of "substantive due process" applies only to fundamental rights, or "fundamental liberty interests". Justice Scalia belittles (as nebulous) the right to sexual privacy and insists that there is no fundamental right to commit sodomy. Pennsylvania Senator Rick Santorum similarly told the Associated Press in May, "If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything."

In fact, the majority doesn't recognize a "right to sodomy", it recognizes a "right to privacy". The majority acknowledges that early American law once restricted sexual privacy to procreational sex between lawfully married persons, but the Court long ago dispensed with such narrow, moralistic restrictions on sexual privacy. Before Bowers, the Court struck down laws which restrict sexual privacy to married persons Eisenstadt v. Baird, 405 U.S. 438 (1972), or only to persons of the same race, Loving v. Virginia, 388 U.S. 1(1967).

Senator Santorum may be right that this decision dooms any remaining adultery statutes on the books (not that there are very many left). Otherwise, it is not hard to discern criteria which can rationally (and constitutionally) justify making some kinds of sex criminal, for example: the use of force or coercion (rape) and the inability of the victim to consent (minors and animals). Nor is it hard to discern a rational basis for prohibiting bigamy and polygamy. These crimes are defined by multiple marriages, not by any private sex act, and so those laws are not affected by this decision.

Justice Scalia emphasizes the point made in Bowers v. Hardwick that sodomy cannot be a fundamental right because it is a crime. The same could be said of miscegenation (sex between people of different races) prior to Loving v. Virginia, 388 U.S. 1(1967). Thus Justice Thomas --who is married to a white woman-- cannot escape charges of hypocrisy when he joins in Justice Scalia's opinion.

Finally, Justice Scalia indulges in some truly astonishing conservative political rhetoric:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. *** Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.
Dis.Op. at 18-19

This is malarkey. The conservatives are perfectly willing to use the Court to override legislation when it suits their political agenda: they showed no deference to Congress or the will of the people when they struck down the Violence Against Women Act, or when they removed state employees from the protection of several different federal discrimination statutes.

The majority opinion made the limits of its decision crystal clear:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual people seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect in their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Maj.Op. at 18.