Lawrence v. Texas,
539 U.S. 558 (2003)

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No. 02-102. Argued March 26, 2003-Decided June 26, 2003

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on that point.

Held: The 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. pp. 564-579.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement-"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190-discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. 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. Pp. 564-567.


(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out samesex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 567-573.

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851-which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education-and Romer v. Evans, 517 U. S. 620, 624-which struck down class-based legislation directed at homosexuals-cast Bow-


ers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, 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. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855—856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 573—577.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 577-579.

41 S. W. 3d 349, reversed and remanded.


KENNEDY J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.

Primary Holding

A Texas law criminalizing consensual, adult homosexual intercourse violates the Due Process Clause of the Fourteenth Amendment.


John Lawrence, Tyron Garner, and Robert Eubanks were three gay men spending the evening together at Lawrence's apartment in Houston. While Garner and Eubanks had been involved in a romantic relationship, Lawrence and Eubands were friends. Eubanks was angry that Garner had been flirting with Lawrence and left the apartment, ostensibly to buy a soda. He then called the police and reported that there was a disturbance involving weapons at the apartment. The sheriff's deputies entered the apartment on Eubanks' directions with weapons drawn.

One of the deputies, Joseph Quinn, alleged that Lawrence and Garner were engaged in anal sex in the bedroom, which was unlocked. However, the other three officers reported different stories, two of them saying that they saw no intercourse at all. It is possible that Quinn's account was driven by Lawrence's hostility toward him as well as his biases against African-Americans and homosexuals. (Garner was African-American.) Nevertheless, Quinn charged Lawrence and Garner with "deviate sex" under Chapter 21, Section 21.06 of the Texas Penal Code. They pleaded no content to the charges on the advice of their lawyers and were fined a small amount, which was raised when the judge realized that their lawyers planned to raise a constitutional challenge to the convictions. Appeals were permitted only in cases where a fine of at least a certain amount was imposed.

The defense attorneys argued that the Texas law violated the Constitution because it prevented only homosexual couples from engaging in anal sex while allowing the same conduct for heterosexual couples. Challenging the Supreme Court's decision in Bowers v. Hardwick that criminalizing homosexuality was constitutional, they asserted the creative argument of a right to privacy and argued that law enforcement should not have the right to invade an individual's bedroom.

Although a three-judge appellate panel initially agreed with the defendants and struck down the law, an en banc review reversed the panel without hearing oral arguments and found the law constitutional. The Texas Court of Criminal Appeals (essentially the state supreme court for criminal matters) declined review.

Procedural History

Texas Court of Appeals, Fourteenth District - 41 S.W.3d 349 (Tex. App. 2001)

Affirmed. A law criminalizing anal sex between two persons of the same gender does not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment of the Constitution.



  • Anthony M. Kennedy (Author)
  • John Paul Stevens
  • David H. Souter
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

The majority's reasoning was based on due process rather than equal protection concerns. Kennedy stated that homosexuals had a fundamental right in engaging in private sexual activity and that the state did not have the right to impose its own moral perspective on individuals. This right was similar to the right of privacy in issues related to marriage, procreation, and other family relationships. The opinion overruled Bowers v. Hardwick. As a caveat, Kennedy added that a state still could criminalize non-consensual homosexual intercourse, intercourse involving children, prostitution, or public sexual conduct. This showed that the key factor in the decision was that the sexual acts happened inside a private residence, where the state and law enforcement had no right to dictate individual behavior in these deeply personal matters.


  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Clarence Thomas

Chiding the majority for overturning Bowers v. Hardwick, Scalia warned that rethinking this decision could have a ripple effect that would undermine many of the Court's other decisions. He contrasted its logic in this case with the reasoning that it had used in Planned Parenthood v. Casey to uphold Roe v. Wade, implying that the majority tailored its reasoning to further the causes of abortion and gay rights with which those Justices sympathized. Scalia suggested that this decision would lead to a slippery slope in which no form of sexual conduct, no matter how socially undesirable, could be constitutionally prohibited. He accused the majority of taking the process of social change into its own hands rather than letting gay rights activists pursue their goals through the legislature.


  • Sandra Day O'Connor (Author)

Defending Bowers, with which she had agreed, O'Connor stated that she would have struck down the law on the grounds of equal protection rather than due process. She was less persuaded by the privacy argument of the defense than its alternative argument that the state could not criminalize anal sex between men if it did not criminalize anal sex between a man and a woman. In an intriguing aside, she suggested that prohibiting same-sex marriage would be constitutional under rational basis review as long as it was not driven by animosity toward homosexuals. With the legalization of same-sex marriage just a decade later, that view rapidly became anachronistic.


  • Clarence Thomas (Author)

Although he agreed with Scalia's dissent for the most part, Thomas felt obliged to write separately to point out that the law was "silly" and should be repealed, but he could find no constitutional basis for a right to privacy or other foundation for striking it down through the courts.

Case Commentary

This case struck down the contrary precedent of Bowers v. Hardwick and found that intimate relations between individuals in the privacy of a home had become widely accepted in society, so they could no longer be criminalized. Protection of this conduct thus is a fundamental right under due process. It is uncertain whether the Supreme Court specifically meant that engaging in homosexual intercourse was a fundamental right, and the standard of review that was used in the case is equally unclear.

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