The Consequences of Lawrence v. Texas
Justice Scalia is right that same-sex marriage bans are at risk, but
wrong that a host of other laws are vulnerable
July 8, 2003
By Joanna Grossman, email@example.com
Recently, and famously, in Lawrence v. Texas,
the Supreme Court invalidated Texas’ anti-homosexual-sodomy law. It did so
by invoking the constitutional right to privacy. But it also indicated that
constitutional equal protection doctrines would have provided another reason
to invalidate the statute, which targeted only same-sex sodomy.
The decision extended long-overdue recognition of the rights of gays and
lesbians. In doing so, it also overturned a notoriously hateful precedent, Bowers
Justice Antonin Scalia wrote an angry dissent to Lawrence. Among
other points, Scalia warned that the Court’s decision means that state
criminal laws against fornication, bigamy, adultery, adult incest, bestiality,
and obscenity cannot survive.
Is he right? The answer is surprisingly unclear from the Lawrence
opinion. Accordingly, the status of these other laws will remain fodder for
lower court challenges.
The Right of Privacy: The Pre-Lawrence Decisions
Prior to Lawrence, the Supreme Court had developed a well-known and
sometimes controversial line of cases recognizing a right of privacy
surrounding decision-making about marriage, family, and procreation.
As it evolved, this constitutional right of privacy became tethered to the
Due Process Clause of the Fourteenth Amendment – and specifically, to the
liberty interest it protects. The thrust of the right is that individuals have
the right to make certain decisions, and engage in certain forms of conduct,
without interference from the state.
Claims that the constitutional right of privacy has been infringed are
traditionally analyzed in two steps. First, the Court asks whether the
decision or conduct is a fundamental right.
In deciding this issue, the Court applies some rather nebulous standards.
Is the right “implicit in the concept of ordered liberty”? Is it “deeply
rooted in this Nation’s history and tradition”? It is helpful if an
asserted right is similar to rights that have already been declared
fundamental in the past.
Pursuant to Court precedents, fundamental rights include the rights to
marry, to use contraceptives, to make decisions about the rearing and
education of children, to live with individuals of one’s choice, and the
right to terminate a pregnancy. (The right, famously established by Roe v.
Wade, was reaffirmed, albeit under a slightly different analytic
framework, in 1992 in Planned Parenthood v. Casey.)
If the right at issue is indeed fundamental, then the Court applies strict
scrutiny to the law. Most laws fail this analysis. For the law to survive, the
state must prove both that it had a compelling interest at stake, and that the
law at issue was narrowly tailored to achieve that interest.
On the other hand, if the right at issue is not fundamental, the Court
simply applies rational basis review. If the state had a legitimate interest
in regulating the conduct, and the law at issue was a rational means of
achieving that interest, then the law stands.
Bowers v. Hardwick: The Court’s Prior Anti-Sodomy Law Precedent
In 1986, against this backdrop, the Court decided Bowers v. Hardwick.
In that case, a man was arrested, in his bedroom, for engaging in sexual
conduct with another male. He was convicted under a Georgia statute that
prohibited sodomy, regardless of the gender of the persons engaging in it.
When he challenged his conviction, the Court first confronted the issue of
whether the right he asserted was fundamental. The majority formulated the
question this way: “whether the Federal Constitution confers a fundamental
right upon homosexuals to engage in sodomy. . . .” But of course, it might
have also been phrased in other ways – as a fundamental right to consensual
sexual conduct between adults in a private context.
The Court refused to recognize sodomy as a fundamental right, based on its
review of history. Indeed, it deemed the claim that there was such a right
“at best, facetious.”
Finding no fundamental right, the Court applied only the rational basis
standard of review. In doing so, the Court found the law valid as an
expression of the state’s “sentiments about the morality of
homosexuality.” In other words, the state’s belief that homosexual conduct
was immoral was a sufficiently “rational” basis to support the law.
The Majority Opinion in Lawrence v. Texas: Strong But Strange
That brings us to the recent Lawrence opinion – in which Bowers
was explicitly overruled.
In this case, two men were arrested after the police – dispatched on a
report of a weapons disturbance – encountered them in their apartment
engaged in a sexual act. They were convicted under a Texas law criminalizing
“deviate sexual intercourse with another individual of the same sex.”
By a 6-3 majority, the Court, in a majority opinion authored by Justice
Anthony Kennedy, invalidated the law – and all anti-sodomy laws, even those
that apply to both same-sex and opposite-sex couples. That much is clear. Much
else is not.
Oddly, the Court never expressly labeled the conduct at issue a
“fundamental” right. It did, however, say that the Texas law sought to
“control a personal relationship that . . . is within the liberty of persons
to choose without being punished.”
And it also said that adults have the right to “choose to enter upon this
relationship in the confines of their homes and their own private lives and
still retain their dignity as free persons.” Homosexuals, the Court wrote,
also share in this “liberty protected by the Constitution.”
All of these statements sound like those used to describe a fundamental
right. Thus, one would expect that strict scrutiny would follow. Did it?
All the Court said with respect to the standard of review was that the
“Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual.”
That sounds like rational basis review, not strict scrutiny. So what’s
It apparently was plain to the Court that the statute would not even
survive the lax rational basis standard – let alone strict scrutiny. So the
same Court that had avoided the easier equal protection argument to invoke the
right of privacy instead, also eschewed the easier application of the more
lethal strict scrutiny test, to reach for the rational basis test instead.
(Romer v. Evans, a Supreme Court case striking down an anti-gay
civil rights statute stands for the proposition that legislation cannot
survive even rational basis review if “it is born of animosity toward the
class of persons affected.” This would virtually have guaranteed
invalidation of the Texas law on equal protection grounds).
In invalidating the Texas law even under the rational basis law, the Court
sent this message: “This law is so deeply flawed and reprehensible, we can
strike it down with one hand tied behind our backs.”
Of course, one could also take an almost diametrically opposite view of the
opinion – seeing it as intentionally narrow, not intentionally far-reaching.
On this view, the six majority Justices – perhaps because they disagreed
among themselves on these points – intentionally withheld two important
First, they declined explicitly to hold that private sexual conduct,
including sodomy, is a fundamental right. Second, they declined explicitly to
hold that strict scrutiny applies when this right is infringed. Therefore, on
this view, these holdings are not law.
But no one who has read the majority opinion as a whole can plausibly
endorse this latter interpretation of the Court’s opinion. It is too strong
an embrace of rights, and a proclamation of freedom for gays and lesbians, for
that interpretation to be sustainable. All five majority justices signed onto
the opinion’s unequivocal language (Justice O’Connor concurred in the
judgment, but would have invalidated the law under the equal protection
What Lawrence Means for Other “Morals” Laws: Its
Possibilities and Limits
But how far does this embrace extend?
The key to developing the privacy line of cases in the past has been
analogy – how much does a newly asserted right look like those the Court has
already recognized? That will undoubtedly hold true with Lawrence as
courts are asked to reconsider the validity of other laws regulating similar
When laws that regulate analogous conduct are examined, morality
justifications alone plainly will not be enough to save them. In Lawrence,
the Court explicitly adopted the following language from Justice Stevens’s Bowers
dissent: “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.”
But which kinds of conduct, exactly, will be deemed similar to the conduct
at issue in Lawrence? At one point, Lawrence refers to an
“emerging awareness that liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters pertaining
to sex.” Later, however, the opinion also makes plain that not all statutes
regulating sex will be vulnerable to constitutional attack.
Indeed, the Court tries to hem in its holding by listing the factors not
implicated by the Texas anti-sodomy law: minors, coercion, public conduct,
prostitution, and public or governmental recognition of the relationship. It
also points out what is involved here: two adults, mutual consent, and sexual
acts common to their lifestyle.
This analysis spells doom for the few remaining anti-fornication laws on
the books. Like homosexual sodomy, fornication is a private, consensual,
sexual act, and the laws forbidding it have no conceivable justification other
than morality. But what about the other laws Justice Scalia lists in his
dissent as now being vulnerable?
Laws That May or May Not Be Vulnerable Under Lawrence
Justice Scalia predicts that, besides anti-fornication laws, laws
regulating or prohibiting same-sex marriage, prostitution, adultery, bigamy,
incest, and bestiality will also come under fire, and be invalidated, after Lawrence.
Will they really?
Laws against prostitution and bestiality are the easiest cases. After Lawrence,
anti-prostitution laws can still be justified based on concerns about
coercion, exploitation of women, and the public health. And bestiality laws
plainly can be upheld on a “cruelty to animals” justification, or, in the
age of SARS, maybe a public health one. A legislature entirely unconcerned
about the morality of either practice could still seek to prohibit both.
I addressed adult incest laws in a prior column. To some extent, incest
prohibitions can be justified based on a state’s desire to avoid genetically
disadvantaged offspring. To some extent, they can be justified based on the
desire to avoid corruption of parent-child relationships; without such laws,
such relationships could be tainted by the possibility that an older relative
may be grooming a minor relative for intimate partnership later in life.
But some applications of incest laws may reach too far – beyond either of
these concerns – and be struck down. A law that prohibited cousins from
marrying might be one example. So might a law prohibiting an adopted sibling
from marrying a close-in-age “natural” sibling who shared no genes. Or one
that prohibited the marriage of blood relatives who did not know each other as
Adultery and bigamy laws are somewhat harder. They can probably be
justified by a state’s desire to preserve a monogamous tradition, protect
spouses from harm visited by the other spouse (a longstanding feature of state
criminal, marriage, and divorce law), maintain an orderly system for assigning
the benefits and burdens associated with marriage, and so on.
On the other hand, though, it seems hard to deny that morality concerns are
the main motivating force behind such laws: Adultery and bigamy are prohibited
not so much for their consequences, but because society sees them as morally
But unlike private sexual conduct, like sodomy, neither adultery nor bigamy
has ever been protected by our society – to the contrary both have always
been illegal, and a basis for marital dissolution. And unlike the history of
sodomy laws detailed in Lawrence, there is a long history of these laws
So to the extent that the due process inquiry is based in tradition, the
rights to commit adultery or bigamy look very unlike the right at issue in Lawrence
(and thus would not generate heightened scrutiny at all).
Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence
What about laws banning same-sex marriage?
The Court in Lawrence seemed to limit its holding so as not to
decide this question, noting that it was not considering the issue of public
or governmental recognition of a relationship. But, importantly, its reasoning
may well extend to invalidate such laws anyway.
In Lawrence, the Court dispensed with tradition as the sole
determinant of a privacy right, emphasizing the role of autonomy and
personhood in assessing what rights are too important to be toyed with.
Same-sex marriage has not traditionally been seen as a right, but neither has
same-sex sodomy – or sodomy in general – and Lawrence found a right
to these latter practices.
Certainly, individuals desiring to marry a person of the same sex have at
least as strong an interest in having that freedom, as individuals choosing to
engage in sexual conduct with a person of the same sex have in the freedom
they are exercising. If not, the Court will, at the same time, have given its
protection to all forms of non-marital sexual relationships – including wild
one-night stands – while deterring the kind of permanent, legally sanctioned
relationships on which society has been built.
Indeed, one would think that, putting tradition aside, the right to marry
the person of your choice should be one of the most fundamental of all. If it
isn’t, the Court will be hard put to say why.
Once a right to same-sex marriage is recognized, any law banning it – or
regulating it differently from the way opposite-sex marriage is regulated –
will predictably be struck down. Such laws have no valid justification; they
are based either on pure animus against homosexual persons, or on so-called
“morality” considerations that Lawrence and Romer have made
clear cannot alone support a liberty- or equality-infringing law.
In sum, Lawrence is itself a monumental development in
Constitutional law, but the future may be even more interesting. After Lawrence,
challenges to laws banning same-sex marriage are the logical next step.
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