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Lawrence v. Texas, Essay Example

Pages: 6

Words: 1687

Essay

In the Lawrence v. Texas (2003) ruling, the U.S. Supreme Court ruled in favor of two Texas men charged with violating that state’s anti-sodomy law, thereby striking down all such laws in the states that retained them. Aided by Lambda Legal, petitioners Lawrence and Garner were able to successfully argue that the law violated both their fundamental rights to privacy and autonomy, since they were both consenting adults who had been acting in private, and also violated the Equal Protection Clause by targeting them as a same-sex couple. The opposing view, however, was that historic discrimination against homosexuals meant that same-sex relations could not constitute a fundamental right, and that states should be allowed to decide these matters for themselves. The Supreme Court’s ruling was properly decided, in accordance with previous rulings on substantive due process rights to privacy, and equal protection as afforded by the Fourteenth Amendment.

Firstly, the Lawrence decision explicitly overruled the Court’s ruling in Bowers v. Hardwick (1986), which upheld the constitutionality of sodomy laws (Messinger 430, Stephens and Scheb 425). The rationale the Supreme Court gave for overturning the Bowers v. Hardwick decision was that under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, states are prohibited from “making private consensual sexual conduct of adults a crime” (Stephens and Scheb 425). Two basic arguments against the statute were advanced by Lambda Legal’s Paul Smith during the hearing. First, there is the argument that adults have a fundamental right to make their own decisions, with other consenting adults, about expressions of sexual intimacy (Carpenter 222). No matter that the petitioners, Lawrence and Garner, were both consenting adults: the State of Texas arrogated to itself the power to police their private sexual expression (Lambda Legal 8). On top of this, Lambda Legal argued, the State of Texas was behaving in a fundamentally discriminatory way, by targeting homosexuals to the exclusion of heterosexuals (8).

In order to ascertain the right of it, the two key cases are Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972). In the Griswold decision, the Court ruled that a Connecticut law restricting access to birth control violated a right of privacy for married couples that was implicit in the Bill of Rights, and specifically embodied by “the concept of personal liberty protected by the Fourteenth Amendment” (Stephens and Schab 411). This case was a watershed in defining the substantive due process right to privacy under the Fourteenth Amendment; thus, it is essential to any understanding of the Lawrence verdict (412). In particular, Griswold established an important legal precedent, whereby the state must assume the burden of demonstrating when there is a sufficient interest to interfere in the private lives of citizens (Miller 714). It also established a doctrine of privacy concerned with individuals’ sexual and reproductive choices (714). For the majority opinion, Justice Douglas famously argued that the Bill of Rights and the “emanations” and “penumbras” of previous Court decisions collectively create a general right to privacy that can be inferred  (Stephens and Scheb 412).

However, it took Eisenstadt v. Baird to apply the protections established by Griswold to unmarried persons. In this decision, the Court struck down a Massachusetts law that criminalized the distribution of contraceptives to unmarried persons, and by any person other than a licensed physician or pharmacist (Miller 523, Stephens and Scheb 413). In this decision, the court drew on the Griswold decision: although Griswold concerns itself only with the right to privacy of a married couple, in the Eisenstadt ruling the Court found no rational reason for restricting contraceptives to married couples (Miller 523). What this in turn meant was that criminalizing the distribution of contraceptives to unmarried couples violated their rights under the equal protection clause of the Fourteenth Amendment (523). Of especial significance, the Court specifically recognized the right of consenting adults “to engage in sex as they saw fit, including sodomy” (523).

Thus, long before the Lawrence decision, there was ample judicial precedent for the notion of a zone of privacy encompassing the private sexual decisions of consenting adults. Because of this, the majority opinion in Lawrence rested on two main arguments: the right to privacy under the substantive due process clause of the Fourteenth Amendment, and the need for equal protection under that clause of the selfsame amendment. Justice Kennedy, writing for the majority opinion, said that the Texas statute “’furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual’” (qtd. in Stephens and Scheb 425). Following the rulings of the Court in both Griswold and Eisenstadt, Justice Kennedy was absolutely correct. In fact, although the protections elaborated in Eisenstadt implied heterosexual adults, they did not actually specify heterosexual adults.

Moreover, since both defendants were in a similar relation to each other as that of heterosexual lovers or cohabitants, the same Fourteenth Amendment protections properly apply to them as well (Miller 991-992). Justice Kennedy also addressed the law’s specific targeting of homosexuals, arguing that it invited discrimination against homosexuals both in public and private spheres (Messinger 430). And both Lawrence and Garner were able to show, in the Petition for Certiorari, that they had suffered harm because of their criminal convictions under the Texas law: “reputational harm, disqualification from practicing certain professions, and having to register as convicted sex offenders under the laws of four states” (Mootz 387).

For the dissent, Scalia argued that the Texas statute was “’well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change’” (qtd. in Stephens and Scheb 425). Scalia also pointed out that the historic laws in question, including anti-sodomy laws that applied to married (heterosexual) couples, did not permit same-sex activity, even between consenting adults (Carpenter 223). But, as noted by Smith, if the history of anti-sodomy laws were to be invoked to defend Texas’s statute, there would be no basis for discrimination against same-sex couples specifically: in fact, the law would have to be applied even to married couples, and the case Griswold v. Connecticut had already established the privacy rights of a married couple (223). Overall, Scalia’s argument ignores decades of jurisprudence in the tradition of both Griswold and Eisenstadt, not to mention the aspects of the Bill of Rights upon which they are based.  

Justice Rehnquist challenged Smith on historical grounds, arguing that there was no basis in history for a fundamental right to private homosexual conduct (Carpenter 223). The limitation of this point is obvious: it does not speak to the principle of the thing, and it begs the question as to why homosexual relations should be considered sufficiently different to not warrant the same protections as heterosexual relations. In any event, Smith demonstrated that Rehnquist’s understanding of the history was incomplete: in fact, going back to the nineteenth century, a number of laws attempted to regulate the sexual activities of consenting adults, but did not target same-sex couples (223).

Rosenthal’s brief in opposition to Lawrence’s and Garner’s petition recognizes that other states have struck down anti-sodomy laws on constitutional grounds, but claims that this is irrelevant, because every state should have the right to interpret the correct scope for protected liberty interests on its own (Rosenthal 9-11). On the same basis, Rosenthal’s brief also rejected the idea that the statute violates the Equal Protection Clause, since homosexuality has long been criminalized (11). Moreover, Rosenthal argued that the distinction between homosexual acts and homosexual persons is relevant, because it meant that the law targeted the former rather than the latter, i.e. bisexual persons and heterosexuals who might be tempted to engage in such acts would also be targeted (11-12). Finally, the brief argues that discrimination against gays in the military already provides a rational basis to consider them a suspect class of persons (12-13).

Both Scalia and Rosenthal adhered to a definition of fundamental rights based on established precedent, and Scalia at least held that the democratically-expressed will of the people should determine rights. This utterly fails to consider the established precedents of the Bill of Rights and such rulings as Griswold and Eisenstadt, which are taken to guarantee certain rights to privacy in every state precisely because the democratically-expressed will of the people does not always lead to a protection of freedoms, particularly for marginalized groups.

In the Court’s decision in the Lawrence v. Texas case, it quite correctly rejected arguments for state-legislated morality and interventionist policing, no matter how democratically-grounded (Supreme Court 560). The Court found no legitimate state interest to be advanced in Texas’s statute, since both men were consenting adults (560). Indeed, the majority opinion affirmed their rights on the grounds of personal autonomy and privacy (562). This is entirely in accord with the watershed rulings of Griswold and Eisenstadt both, which establish an important zone of privacy regarding what consenting adults may do in private. In essence, the Lawrence decision is the only one possible if the by then already well-established precedents of those earlier decisions were to be upheld, and the protections of the Fourteenth Amendment with them.

Works Cited

Carpenter, Dale. Flagrant Conduct: The Story of Lawrence v. Texas. New York: W. W. Norton & Company, 2012. Print.

Lambda Legal. Lawrence v. Texas, Writ of Certiorari. No. 02-102. N.d. Web. 31 Oct. 2013.

Lawrence v. Texas. 539 U.S. 558. Supreme Court of the US. 2003. US Supreme Court Center, 2003. Web. 31 Oct. 2013.  

Messinger, Lori. “Social Welfare Policy and Advocacy.” Sexual Orientation and Gender Expression in Social Work Practice: Working With Gay, Lesbian, Bisexual, and Transgender People. Ed. Deana F. Morrow and Lori Messinger. New York: Columbia University Press, 2006. 427-459. Print.

Miller, Wilbur R., ed. The Social History of Crime and Punishment in America. Thousand Oaks, CA: SAGE Publications, Inc., 2012. Print.

Mootz, Francis J. Law, Hermeneutics, and Rhetoric. Burlington, VT: Ashgate Publishing Company, 2010. Print.

Rosenthal, Charles A. Lawrence v. Texas, Writ of Certiorari—Respondent’s Brief in Opposition. No. 02-102. Lambda Legal, n.d. Web. 31 Oct. 2013.

Stephens, Otis H., and John M. Scheb. American Constitutional Law: Civil Rights and Liberties. 5th ed. Boston, MA: Wadsworth, 2012. Print.

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