HEADINGi Lawrence v.

Texas

Date June 26, 2003 Case No. 539 US 558 Court SCOTUS
Petition A certiorari to the Circuit Court of Appeals of Texas, Fourteenth District

Opinion Votes C. J. Written (Justice) Joined (Justice)

Majority 5 Kennedy Stevens, Souter, Ginsburg and Breyer
Concurrence
1 O’Connor
(in judgement) Rehnquist
Dissent #1 3 Scalia Rehnquist and Thomas
Dissent #2 1 Thomas

FACTSii September 1998, in response to a reported weapons disturbance, officers of the Harris
County Police Department were dispatched to John Geddes Lawrence residence where
they found him engaging in a sexual act with Tyron Garner. The two petitioners were
arrested, held in custody overnight and charged and convicted before a Justice of the
Peace.1

PROCEDURAL POSTUREiii Justice of Peace2: Lawrence and Garner charged them with “homosexual conduct”
according to Chapter 21, Sec. 21.06 of the Texas Penal Code. They were found guilty,
fined, and released.

Harris County Criminal Court 3: Petitioners asked trial de novo4 challenging statute as a
violation of the Equal Protection Clause and Due Process Clause of the 14 th Amendment.
Those contentions were rejected. The petitioners entered again a plea of nolo
contendere5. Basically, this means they did not challenge the facts, they would challenge
the Law.

The Court of Appeals for the Texas Fourteenth District: The Petitioners appealed. The
Court of Appeals (divided) rejected the constitutional arguments and affirmed the
convictions by upholding the SCOTUS decision of Bowers v. Hardwick.

Texas Court of Criminal Appeals: Who had the final appellate jurisdiction for criminal
matters, refused jurisdiction over this matter and the Petitioner’s appeal.
1
According to Lawrence recollection, they didn’t even search for a gun.
2
Section 19 of the Texas Constitution: JURISDICTION OF JUSTICE OF THE PEACE COURTS; EX OFFICIO NOTARIES PUBLIC. Justice of the
peace courts shall have original jurisdiction in criminal matters of misdemeanor cases punishable by fine only, exclusive jurisdiction
in civil matters where the amount in controversy is two hundred dollars or less, and such other jurisdiction as may be provided by
law. Trials in justice courts are not “of record.” Appeals from these courts are by trial de novo in the constitutional county court, the
county court at law, or the district court.
3
County courts generally have appellate jurisdiction (usually by trial de novo) over cases tried originally in the justice and municipal
courts.
4
Trial do novo is "new trial" by a different tribunal. Trials in the justice courts and most municipal courts are not of record and
appeals therefrom are by new trial (“trial de novo”) to the county court, except in certain counties, where the appeal is to a county
court at law or to a district court. When an appeal is by trial de novo, the case is tried again in the higher court, just as if the original
trial had not occurred.
5
“I do not wish to contend.” The rights to appeal said results in Texas are highly restricted, only if the judgement is based on written
pretrial motions ruled upon by the court.
 US Supreme Court: In petition for certioriari the petitioners asked SCOTUS to review the
constitutionality of the Texas’ “Homosexual Conduct” law based on equal protection and
the rights of privacy and liberty. SCOTUS granted certiorari to consider three issues ( see
below), taking into consideration the petitioners were adults, and the conduct was
private and consensual.

ISSUESiv 1. Do the Petitioners' criminal convictions under the Texas "Homosexual Conduct"
law violate the Fourteenth Amendment guarantee of equal protection of laws?
2. Do the Petitioners' criminal convictions for adult consensual sexual intimacy in
the home violate their vital interests in liberty and privacy protected by the Due
Process Clause of the Fourteenth Amendment?
3. Should Bowers v. Hardwick, 478 U.S. 186 (1986) be overruled?

RULE OF LAWv Tex. Penal Code Ann. § 21.06(a) (2003). Provides that it is an offence to engage in
deviate sexual intercourse with another same-sex individual.6
Tex. Penal Code Ann. § 21.01(1) (2003). Defines deviate sexual intercourse as: i) contact
between genitals and mouth/anus< and ii) penetration of genitals or anus with an object.
14th Amendment. Section1. (Equal Protection Clause) (Due Process Clause) No State
shall: i) make or enforce any law which shall abridge the privileges or immunities of US
citizens; ii) deprive any person of life, liberty, or property, without due process of law; iii)
deny to any person within its jurisdiction the equal protection of the laws.
Texas Constitution. Tex. Const., Art.1, § 3a (Equal Rights) All free men have equal rights,
and no man is entitled to exclusive separate public emoluments, or privileges, but in
consideration of public services. (Equality Under the Law). Equality under the law shall
not be denied or abridged because of sex, race, color, creed, or national origin.

JUDGEMENTvi The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and
the case is remanded for further proceedings not inconsistent with SCOTUS’ opinion.

HOLDINGvii No, it violates the Due Process Clause of the Fourteenth Amendment.

Yes, intimate sexual conduct, between consenting adults, is a liberty protected under the
Due Process Clause of the Fourteenth Amendment.

Yes, Bowers was not correct when it was decided. It ought not to remain binding
precedent. Bowers v. Hardwick is overruled.

ANALYSISviii Majority The case should be resolved by determining whether the petitioners were
free as adults to engage in private conduct in exercise of their liberty
under Due Process Clause. Therefore, the Court’s holding in Bowers
should be reconsidered.

i) Analysis of the State of the Law before considering Bowers :

Substantiative reach of liberty under Due Process Clause has
its beginning point in Griswold v. Connecticut.7
After, by Eisenstadt v. Baird8, it was established that this right

6
This rule is still present in Texas’ Penal Code till today: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.21.htm#21.06.
7
In Griswold, the SCOTUS invalidated a state law that prohibited the use of drugs, contraception and counseling or aiding and
abetting the use of contraceptives based on a right to privacy (emphasis on marriage relationship and protected space of marital
bedroom).
8
In Eisenstadt, the SCOTUS invalidated a law prohibiting the distribution of contraceptives to unmarried persons by understanding it
be in conflict with fundamental human rights.
 to make decisions re. sexual conduct extended beyond
marriage by understanding it as a right of the individual to be
free of unwarranted governmental intrusion.
These were the background for Roe v. Wade9, which upheld
the woman’s right to elect an abortion as an exercise of her
liberty under the Due Process Clause.
In Carey v. Population Services Int'l10, didn’t even give an
opinion, just directly invalidated the law in question.

Facts in Bowers: A police officer (with questionable right to

enter) observed same-sex intercourse in a private sphere. The
conduct (sodomy) was a criminal offense according to a
Georgia statute.

Difference with Bowers: The Georgia statute did not include

the same-sex condition of the offenders as a qualification.
Hardwick (although not prosecuted re. sodomy) brought an
action to declare the state statute invalid because it violated
his constitutional rights.

Decision in Bowers: SCOTUS sustained the Georgia law in an

opinion written by Justice White.11

Reanalysis of Bowers: The holding discloses the Court's own

failure to appreciate the extent of the liberty at stake.
SCOTUS misapprehended the claim of liberty and interpreted
it as a claim to engage in consensual sodomy. The Court had
misread the historical record regarding laws criminalizing
homosexual relations.

Sodomy was conceived as nonprocreative sexual activity,

which then evolved to predatory acts of adult men, relations
involving force, relations implicating disparity in status or
relations with animals.

In summary, the historical grounds relied upon in Bowers are

more complex than the majority opinion and the concurring
opinion by Chief Justice Burger indicate. Their historical
premises are not without doubt and, at the very least, are
overstated; shaped by religious beliefs, conceptions of right
and acceptable behavior, and respect for the traditional
family.

"Our obligation is to define the liberty of all, not to mandate

our own moral code." Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 850 (1992).

9
In Roe, the SCOTUS recognized the right of a woman to make certain fundamental decisions (abortion) by confirming the
protection of liberty under the Due Process Clause.
10
In Carey, the SCOTUS invalidated a NY law forbidding the sale or distribution of contraceptive devices to people under 16yo.
11
Justice White was a critic of the “substantiative due process” doctrine that involved reading substantiative content into the term
“liberty” in the Due Process Clause of the Fifth Amendment and Fourteenth Amendment. He had a career-long distaste for the
doctrine. He dissented in “Roe vs. Wade”. His dissent suggested that Roe was an exercise of “raw judicial power”.
 General Rule: State/Court should not set boundaries to the
liberty of persons, to engage in sexual conducts in private,
absent injuries or abuse of an institution the law protects:
“The liberty protected by the Constitution allows homosexual
persons the right to make this choice.”

ii) Weakening of the jurisprudencial foundation:

Dudgeon v. United Kingdom12: Almost five years before

Bowers was decided the European Court of Human Rights
considered a case with parallels to Bowers. The court held
that the laws proscribing the conduct were invalid under the
European Convention on Human Rights.

Post-Bowers Erosion: Erosion of the Bowers interpretation: i)

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833 (1992), the Court reaffirmed the substantive force of the
liberty protected by the Due Process Clause; and ii) Romer v.
Evans, 517 U.S. 620 (1996), the Court struck down class-based
legislation directed at homosexuals as a violation of the Equal
Protection Clause. provision was "born of animosity toward
the class of persons affected" and further that it had no
rational relation to a legitimate governmental purpose.

The foundations of Bowers have sustained serious erosion

from our recent decisions in Casey and Romer. When our
precedent has been thus weakened, criticism from other
sources is of greater significance. In the United States
criticism of Bowers has been substantial and continuing,
disapproving of its reasoning in all respects, not just as to its
historical assumptions.

Stare Decisis: essential to the respect accorded to the

judgments of the Court and to the stability of the law, it is
not, however, an inexorable command. There has been no
individual or societal reliance on Bowers of the sort that could
counsel against overturning its holding once there are
compelling reasons to do so.

iii) Conclusion:
Equality of treatment and the due process right to demand
respect for conduct protected by the substantive guarantee of
liberty are linked in important respects, and a decision on the
latter point advances both interests.

Concurrenc Texas’ statute banning same-sex sodomy is unconstitutional due to the

e Equal Protection Clause, not the Due Process Clause. Hence, Bowers v.
Hardwick should not be overruled.

This case raises a different issue than Bowers: if under Equal Protection
Clause moral disapproval is a legitimate state interest to justify by itself a
12
An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual
homosexual conduct.
 statute that bans homosexual sodomy but not heterosexual sodomy.

The Texas sodomy law is born of animosity toward the class of persons
affected. The law is targeted at more than conduct, it is directed toward
gay persons as a class. There can hardly be more palpable discrimination
against a class than making the conduct that defines the class criminal.

The Texas sodomy statute subjected homosexuals to a lifelong penalty

and stigma. A legislative classification that threatens the creation of an
underclass cannot be reconciled with the Equal Protection Clause

Dissent #1 Stare Decisis: While overruling Bowers, SCOTUS ignores its central legal
conclusion: there is no fundamental right to engage in homosexual
sodomy. Instead, it describes the conduct as an “exercise of liberty” and
provides a rationale which will have far-reaching implications (same-sex
marriage).

Although he does not believe in rigid adherence to stare decisis in

constitutional cases, he does believe the approach of SCOTUS to revise
these standards of stare decisis set forth in Casey, as it seems
manipulative.

Now, stare decisis can be overruled if: i) its foundations have been
“eroded” by subsequent decisions; ii) it has been subjected to substantial
and continuing criticism; and iii) it has not induced individual or societal
reliance that counsels against overturning.

According to said claim, Roe and Casey have been equally eroded.

Is Bowers wrongly decided? Is the Texas statute unconstitutional? Only

fundamental rights, rooted in the Nation’s history and tradition, qualify
for the heightened scrutiny protection from the Due Process Clause.

In Bowers, it had been decided that criminal prohibitions of homosexual

sodomy are not subjected to heightened scrutiny protection, and SCOTUS
does not seem to overrule this holding.

Emerging Awareness re. Liberty of Sexual Rights: Apart from the fact that
“emerging awareness” does not establish a fundamental right, the
statement is also false. Several States prosecute all sorts of sexual crimes
by adults.

Furthermore, the fact that States, or foreign nations, decriminalize

conducts, does not give right to constitutional entitlement.

Rational Basis for the Law: The Texas statute is based on the belief of its
citizens re. “Immoral and unacceptable” sexual behaviors. Upholding
Justice Stevens declaration in Bowers dissent effectively decrees the end
of all moral legislation: “the fact that the governing majority in a State has
traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice”.

Conclusion: The decision is product of a law profession culture that signed

 off to the homosexual agenda which believes that criminalization of
homosexual conduct is "an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres.".

The Court is unaware that the attitudes they are defending are not
obviously “mainstream”. Promoting the agenda through normal
democratic means is one thing and imposing one's views in absence of
democratic majority will is something else.

SCOTUS decision is an invention of a brand-new "constitutional right" by a

Court that is impatient of democratic change and foretelling of future
recognition of same-sex marriage.

Dissent # 2 The Texas statute is “uncommonly silly” and should be repealed.

Nevertheless, nothing in the Constitution or Bill of Rights prohibits the
Texas legislature from enacting the law at issue.

NOTESix Bowers v. Hardwick: In 1986, the SCOUTS upheld consensual sodomy laws in Georgia,
and the other States that had it at that time. Bowers then was held as justification for
anti-gay discrimination.

While considering the majority opinion, Justice Lewis F. Powell Jr. told his clerk that he
had never met someone who was gay. His clerk turned out to be gay and closeted. 13

C. Cabell Chinnis said that Powell had met his boyfriend and had asked him about the
mechanics of gay sex. Chinnis speculates that his boss made the prior comment to
protect Chinnis at a time when it was professionally dangerous to be identified as gay.

In comparison, during Lawrence v. Texas, just before the petitioner’s lawyer was about to
give his oral arguments, someone whispered to him that Justice O’Connor had just sent a
former clerk, and her lesbian partner, a baby shower gift.

Justice White: This case was resolved a year after Justice White’s death. It is interesting as
this case overrules the holding of Bowers, where Justice White omitted to analyze the
question on whether homosexuals had the right to privacy (in accordance with the Due
Process Clause doctrine), and only centered the analysis on the facts of the case. He
performed a strict scrutiny over SCOTUS decisions to strike down laws that discriminated
on the basis of sex.

Although Justice White was a democrat, appointed into the SCOTUS by Kennedy in 1962,
he is often criticized for not joining the more liberal stand on Miranda v. Arizona and Roe
v. Wade.

LGBTQ+ Rights: Large case came into Lamba Legal’s radar, an organization that fights for
civil rights of LGBTQ+ people and HIV+ people. They were forced to do it state by state
and fighting against each constitution one at a time. From the start, Lamba Legal’s had a
larger goal: to eradicate the 13 sodomy laws that were enforceable in 2003.

In Court, the lawyer argued that it must be apparent that there are gay families, and that
for those people the opportunity to engage in sexual expression as they will in the
privacy of their own home performs much the same function that it does in the marital
context, and you cannot protect one without the other. Certain things that the State
13
https://www.abajournal.com/news/article/justice_who_said_he_never_met_a_homosexual_actually_had_several_gay_law_cle
 cannot do and controlling your sexuality would be one of these.

Drastic rewrite of the previous SCOTUS ruling, being compared to the Roe v. Wade and
Brown v. Board of Education of LGBTQ+ issues. The ruling impact went well beyond
Texas. There were 13 States that still had it a crime, and suddenly those laws could not be
enforced anymore.

Facts: To challenge the law, Judges were requiring that police use this law to arrest
people in the privacy of their home. Gay rights movements had to get around this
requirement, and that is why they chose not to contest the alleged facts as stated by the
police report. The attorneys allowed that to proceed and took full advantage of it.

The facts are believed to not be true and that there was no sexual intercourse when the
police barged in.

Since the judicial system in the US is adversarial and not inquisitorial, there is no ultimate
search for truth.

Texas Penal Code The rule had secondary effects. If someone wanted to discriminate
someone based on their sexual preference, they would justify on the existence of the
sodomy law. Affected employment, housing and adoption rights of LGBTQ+ community.

Linkx https://www.oyez.org/cases/2002/02-102
Glossary
i
HEADING: Names of the parties in the case. In the trial court, the first name listed is the plaintiff, the party bringing the
suit. The name following the "v" is the defendant. If the case is appealed, as in this example, the name of the petitioner
(appellant) is usually listed first, and the name of the respondent (appellee) is listed second. If the defendant in the trial
court case brings an appeal, the defendant's name may be listed first in the appellate case.

ii
FACTS: The “who, when, what, where, and why” of the case. Describe the history of the dispute, including the events
that led to the lawsuit, the legal claims and defenses of each party, and what happened in the trial court. Include only the
relevant facts important to the court’s decision. Ask yourself whether the court’s decision may have been different if a
particular fact was omitted or changed.

iii
PROCEDURAL POSTURE: Summary of how the case arrived in the court written in a neutral manner. This section should
describe what procedural steps led to the particular issue (in a trial court) or what happened in the court below (in an
appellate court). It should help understand the case chronologically.

iv
ISSUE: The statement of the question of law that the court must answer in order to decide which party should win. A
case may involve more than one issue. In most cases, however, you will need to write your own statement of the issue in
the form of a question that can be answered “yes” or “no”. To ensure that your issue statements are written in the form of
a question, begin them with “whether,” “did,” “can,” “does,” “is,” etc.

v
RULE OF LAW: The rule of law is the legal principle or black letter law upon which the court rested its decision in the case.
A single legal opinion may contain numerous rules of law or legal principles that impacted the court’s final decision. For
case briefing purposes, determine the rule of law germane to the discussion of the case in the casebook and to formulate
that rule into one, easy-to-digest sentence. The rule of law should never be fact-specific. It should answer the dispositive
legal question being posed in the case. Put differently, the rule of law should be the legal issue in the case phrased as a
statement.

vi
JUDGMENT: The decision of the Court. It could be assimilated to a narrow procedural holding, for example, “case
reversed and remanded,” or “affirmed”. When describing the Judgment of the case, distinguish it from the Holding. The
Judgment is the factual determination by the court, in favor of one party, such as “affirmed,” “reversed,” or “remanded.”
In contrast, the Holding is the applied rule of law that serves as the basis for the ultimate judgment.

vii
HOLDING: The applied rule of law and broader substantive answer to the issue. If there are multiple issues, then you
should state a holding for each issue. The holding succinctly states the court’s ultimate conclusion but does not fully
explain the conclusion. If the issues have been drawn precisely, the holdings can be stated in simple “yes” or “no” answers
or in short statements taken from the language used by the court. The holding can be structured in a manner consistent
with the CREAC method. (Conclusion, Rule, Explanation, Application, and Conclusion.)

viii
ANALYSIS: a summary of the reasons that explain how the court reached its decision. The goal for this part of your brief
is to understand how the court used the rules of law to resolve the dispute. The court will state the applicable rules of law.
You should summarize how the court applied the rules to the facts to reach its conclusions. All concurrences and dissents
should be covered.

ix
NOTES: After you have finished briefing a case, take a moment to critically evaluate the court’s decision. Ask yourself
whether you agree with the outcome. Is the outcome fair in light of the facts and the law? Has the court considered all of
the relevant facts? Do you agree with the court’s reasoning? What is the likely impact of the decision in the business
environment? There are different approaches to briefing each aspect of the case that work equally well.

x
LINK: hyperlink to PDF of the case in official gov website. (SCOTUS webpage)

Example on case citation: United States v. Jones, 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).
 United States v. Jones. = Names of the parties in the case.
 565, 132, and 181 = Volume numbers of the reporters (books) containing the full text of the court's opinion.
 U.S., S.Ct. and L.Ed.2d = Bluebook abbreviations for the reporters (United States Reports, Supreme Court
Reporter, Supreme Court Reports Lawyers' Edition) containing the court's opinion.
 400, 945, and 911 = First page of the court’s opinion in the respective reporters. If you see an incomplete citation
such as 573 U.S. ___, the ___ indicates a page number is not yet available in the official reporter, United States
Reports.
 2012 = Year the case was decided.