| Lawrence v. Texas | |
|---|---|
 | |
| Argued March 26, 2003 Decided June 26, 2003 | |
| Full case name | John Geddes Lawrence and Tyron Garner v.Texas |
| Docket no. | 02-102 |
| Citations | 539U.S.558 (more) 123 S. Ct. 2472; 156L. Ed. 2d 508; 2003U.S. LEXIS 5013; 71 U.S.L.W. 4574; 2003 Cal. Daily Op. Service 5559; 2003 Daily Journal DAR 7036; 16Fla. L. Weekly Fed. S 427 |
| Argument | Oral argument |
| Case history | |
| Prior | Defendants convicted,Harris County Criminal Court (1999),rev'd, 2000 WL 729417 (Tex. App. 2000) (depublished),aff'd en banc, 41S.W.3d 349 (Tex. App. 2001),review denied (Tex. App. 2002),cert. granted,537 U.S. 1044 (2002). |
| Subsequent | Complaint dismissed, 2003 WL 22453791, 2003 Tex. App. LEXIS 9191 (Tex. App. 2003) |
| Questions presented | |
| |
| Holding | |
| The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates theDue Process Clause. Court of Appeals for the Fourteenth District of Texas reversed and remanded.Bowers v. Hardwick overruled. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Kennedy, joined by Stevens, Souter, Ginsburg, Breyer |
| Concurrence | O'Connor (in judgment) |
| Dissent | Scalia, joined by Rehnquist, Thomas |
| Dissent | Thomas |
| Laws applied | |
| U.S. Const. amend. XIV; Tex. Penal Code § 21.06(a) (2003) | |
This case overturned a previous ruling or rulings | |
| Bowers v. Hardwick (1986) | |
Lawrence v. Texas, 539 U.S. 558 (2003), is alandmark decision of theUnited States Supreme Court in which the Court ruled that U.S. state lawscriminalizing sodomy between consenting adults areunconstitutional.[a][1][2] The Court reaffirmed the concept of a "right to privacy" that earlier cases had found theUnited States Constitution provides, even thoughit is not explicitly enumerated.[3] It based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with any or all forms of private sexual activities betweenconsenting adults.[4]
In 1998, John Geddes Lawrence Jr. was arrested along with Tyron Garner at Lawrence's apartment inHarris County, Texas. Garner's former boyfriend had called the police, claiming that there was a man with a weapon in the apartment. Sheriff's deputies said they found the men engaging in sexual intercourse. Lawrence and Garner were charged with amisdemeanor under Texas'anti-sodomy law; both pleadedno contest and received a fine. Assisted by the American civil rights organizationLambda Legal, Lawrence and Garner appealed their sentences to theTexas Courts of Appeals, which ruled in 2000 that the sodomy law was unconstitutional. Texas appealed to have the court rehear the caseen banc, and in 2001 it overturned its prior judgment and upheld the law. Lawrence appealed this decision to theTexas Court of Criminal Appeals, which denied his request for appeal. Lawrence then appealed to the U.S. Supreme Court, which agreed to hear his case.
The Supreme Court struck down the sodomy law in Texas in a 6–3 decision, and by extension invalidated sodomy laws in 13 other states, thus protecting from governmental regulation throughout the U.S. all forms of private, consensual sexual activity between adults. In the same case, the Court overturned its previous ruling in the 1986 caseBowers v. Hardwick, where it had upheld a challengedGeorgia statute and did not find a constitutional protection ofsexual privacy. It explicitly overruledBowers, holding that the previous ruling had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected bysubstantive due process under theDue Process Clause of theFourteenth Amendment to the U.S. Constitution.[5]
The case attracted much public attention, and 33amici curiae ("friends of the court")briefs were filed.[6] Its outcome was celebrated bygay rights advocates, and set the stage for further reconsideration of standing law, including the landmark cases ofUnited States v. Windsor (2013), which invalidated Section 3 of theDefense of Marriage Act, andObergefell v. Hodges (2015), which recognizedsame-sex marriage as a fundamental right under the United States Constitution.
Legal punishments for sodomy often included heavy fines, prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such assuffrage, to anyone convicted of the crime of sodomy.[7] In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied a driver's license to a man for being an "admitted homosexual".[8]
As of 1960, every state had an anti-sodomy law.[9] In 1961, the American Law Institute'sModel Penal Code advocated the repeal of sodomy laws as they applied to private, adult, consensual behavior.[10] Two years later theAmerican Civil Liberties Union (ACLU) took its first major case in opposition to these laws.[11]
InGriswold v. Connecticut (1965), the Supreme Court struck down a law barring the use ofcontraceptives by married couples. InGriswold, the Supreme Court recognized for the first time that couples, at least married couples, had a right to privacy,[12] drawing on theFourth Amendment's protection of private homes from searches and seizures without a warrant based on probable cause, theFourteenth Amendment's guarantee of due process of law in the states, and theNinth Amendment's assurance that rights not specified in the Constitution are "retained by the people".Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons.[13] In 1973, inRoe v. Wade the US Supreme court extended that right to privacy to protect a woman's right to have an abortion, although the extent to which that might be regulated by the government varied, with almost absolute protection in the first trimester, and allowing for increasing regulation as the pregnancy progressed.
InBowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home.[14] The Court rejected this challenge in a 5 to 4 decision. JusticeByron White's majority opinion emphasized thatEisenstadt andRoe had only recognized aright to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a right tosodomy. JusticeBlackmun, writing in dissent, argued thatEisenstadt held that the Constitution protects people as individuals, not as family units.[15] He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, there is no reason to treat the rights of citizens in same-sex couples any differently.[16]
By the time of theLawrence decision, ten states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah, and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma, and Missouri (partially)—prohibited same-sex couples from engaging in anal and oral sex.[9]
On September 17, 1998, John Geddes Lawrence Jr.,[17][18] a gay medical technologist, was hosting two gay acquaintances, Tyron Garner[19] and Robert Eubanks,[20] at his apartment at 794 East Normandy Street, in northeastHarris County, Texas,[21] east of theHouston city limits.[22] Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had had an intermittent romantic relationship since 1990. Lacking transportation home, the couple were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported "a black male going crazy with a gun" at Lawrence's apartment.[23]
FourHarris County sheriff's deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and later in determining what charges to bring. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and to determine whether to arrest them. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check the statutes to be certain they covered sexual activity inside a residence. He was told that Texas' anti-sodomy statute, the "Homosexual Conduct" law, made it a Class Cmisdemeanor if someone "engages in deviate sexual intercourse with another individual of the same sex".[24] The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.[25]
Quinn decided to arrest Lawrence and Garner and charge them with having "deviate sex". In the separate arrest reports he filed for each, he wrote that he had seen the arrestee "engaged in deviate sexual conduct namely, anal sex, with another man".[26] Lawrence and Garner were held in jail overnight. At a hearing the next day, they pleaded not guilty to a charge of "homosexual conduct". They were released toward midnight, after posting a bail of $200.[27] Eubanks pleadedno contest to charges of filing a false police report. He was sentenced to 30 days in jail but was released after serving just 15 days of his sentence.[28]
At the time of the arrest, prosecuting this offense was rare for people in their own residences. District Attorney John B. Holmes, said that only "two or three" sodomy cases had been pursued in the county since 1958, and all involved inmates in the county jail.[29]
The gay rights advocates fromLambda Legal litigating the case convinced Lawrence and Garner not to contest the charges and to pleadno contest instead.[30] On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial.Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.[31]
To appeal, Lawrence and Garner needed to have their cases tried in Harris County Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendmentequal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not betweenheterosexual couples. They also asserted a right to privacy and that the Supreme Court's decision inBowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was "wrongly decided".[32] On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pleaded "no contest". Ross fined them $200 each, the amount agreed upon in advance by both sides.[33]
A three-judge panel of the TexasFourteenth Court of Appeals heard the case on November 3, 1999.[34] Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented.[35] The Court of Appeals decided to review the caseen banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel's decision and upheld the law's constitutionality 7–2, denying both the substantive due process and equal protection arguments.[36] Attorneys for Lawrence and Garner asked theTexas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year's delay, on April 17, 2002, that request was denied. Lambda Legal's Harlow called that decision "a major abdication of judicial responsibility". Bill Delmore, the Harris County prosecutor who argued the case, called the judges "big chickens" and said: "They have a history of avoiding the hot potato cases if they can."[37]
In a petition forcertiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:[38]
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteenamicus curiae briefs to complement their own brief. Submitting organizations included theAmerican Bar Association, theAmerican Psychological Society, theAmerican Public Health Association, theCato Institute, theLog Cabin Republicans, a group of history professors, and a group of religious denominations.[39] An op-ed in support by former SenatorAlan Simpson appeared inThe Wall Street Journal on the morning scheduled for oral argument.[40] The attorneys for Texas did not control theamicus briefs submitted in support of their position by representatives of religious andsocial conservatism, includingJay Alan Sekulow andRobert P. George. Several, including that ofLiberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had "severe physical, emotional, psychological, and spiritual consequences".[41]
Atoral argument on March 26, 2003,Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs.[42] Texas Attorney GeneralJohn Cornyn, then a candidate for the U.S. Senate, refused to have his office argue the case.Charles A. Rosenthal, District Attorney of Harris County, represented the state.[43] His performance was later described as "the worst oral argument in years", but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.[44][45]
On June 26, 2003, the Supreme Court issued a 6–3 decision in favor of Lawrence that struck down Texas's statute. Five justices held it violated theDue Process Clause, while a sixth,Sandra Day O'Connor, held it violated theEqual Protection Clause.
Five justices formed the majority and joined an opinion written by JusticeAnthony Kennedy. The Court ruled that Texas's law prohibiting private homosexual activity between consenting adults violated theDue Process Clause of theFourteenth Amendment to the U.S. Constitution.[46] The Court did not describe private sexual activity as a fundamental right requiring the "strict scrutiny" standard of judicial review,[47] but rather focused on why its previous decision inBowers v. Hardwick had been wrong.
First, the Court stated that its decision inBowers went against its statements in cases involving child-rearing (Pierce v. Society of Sisters andMeyer v. Nebraska), contraception (Griswold v. Connecticut andEisenstadt v. Baird), and abortion (Roe v. Wade) that the Constitution protects a right to privacy and personal autonomy.[4] Next, Kennedy wrote that inBowers the Court had misread the historical record regarding laws criminalizing homosexual relations. He stated that, after further research, the Court had found that historical American anti-sodomy laws had been directed at "nonprocreative sexual activity more generally," rather than specifically at homosexual acts, contrary to the Court's conclusions inBowers.[48] Combined with the fact that these laws were often unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults.[4]
Lastly, Kennedy noted thatBowers's jurisprudential foundation had been weakened by two subsequent cases involving sexuality (Planned Parenthood v. Casey andRomer v. Evans), and that the reasoning ofBowers had been criticized in the United States and rejected by most other developed Western countries. For this reason, Kennedy stated that there was a jurisprudential basis to think that it should be "an integral part of human freedom" for consenting adults to choose to privately engage in sexual activity.[49]
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 persons 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 for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
— Lawrence, 539 U.S. at 578 (citation omitted).
Kennedy reviewed the assumption the court made inBowers, using the words of Chief Justice Burger's concurring opinion in that case, that "Condemnation of [homosexual practices] is firmly rooted in Judeo-Christian moral and ethical standards." He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code's recommendations since 1955, theWolfenden Report of 1957, and a 1981 decision of theEuropean Court of Human Rights in Case 7525/76Dudgeon v United Kingdom.[50]
JusticeSandra Day O'Connor only concurred in the judgment and offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning ofBowers—she had been in theBowers majority—and disputed the court's invocation of due process guarantees of liberty in this context. Rather than including sexuality within protected liberty, she would strike down the law as violating the equal protection clause because it criminalized male–male but not male–female sodomy. O'Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. O'Connor noted that a law limiting marriage to heterosexual couples would pass rational scrutiny as long as it was designed to "preserv[e] the traditional institution of marriage" and not simply based on the state's dislike of homosexual persons.
JusticeAntonin Scalia wrote a dissent, whichChief JusticeWilliam H. Rehnquist and JusticeClarence Thomas joined. Scalia objected to the Court's decision to revisitBowers, pointing out many decisions from lower courts that relied onBowers that might now need to be reconsidered.[51] He noted that the same rationale used to overturnBowers[52] could have been used to overturnRoe v. Wade, which some of the Justices in the majority inLawrence had upheld inPlanned Parenthood v. Casey (1992). Scalia also criticized the majority opinion for failing to give the same respect tostare decisis that three of those in the majority had insisted on inCasey.[53] O'Connor's concurrence noted that Scalia's dissent conceded that if cases such asRomer v. Evans "havestare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type ofrational basis review" applied.[54]
Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done inBowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.[55]
He wrote that:
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 so-calledhomosexual 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. ... [T]he Court has taken sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed.
He cited the majority opinion's concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:
So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.
He continued: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." The majority's "invention of a brand-new 'constitutional right'", he wrote, showed it was "impatient of democratic change".[56]
Justice Thomas wrote in a separate, two-paragraph dissent that the sodomy law the Court struck down was "uncommonly silly", a phrase drawn from JusticePotter Stewart's dissent inGriswold v. Connecticut (1965). Justice Thomas added that if he were a member of the Texas Legislature, he would vote to repeal the law. The Justice opined that "punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources". Nevertheless, Thomas voted to uphold the constitutionality of the Texas sodomy law because he could find "no general right of privacy" in the Constitution.[57]
PresidentGeorge W. Bush's press secretaryAri Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, Bush had opposed the repeal of the Texas sodomy provision, which he called a "symbolic gesture of traditional values".[58] After quoting Fleischer calling it "a state matter",Linda Greenhouse, writing inThe New York Times, commented: "In fact, the decision today ... took what had been a state-by-state matter and pronounced a binding national constitutional principle."[59]
Lambda Legal's lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that "the court admitted its mistake in 1986, admitted it had been wrong then ... and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights."[60]
ProfessorLaurence Tribe has written thatLawrence "may well be remembered as theBrown v. Board of Education of gay and lesbian America".[61]Jay Alan Sekulow of theAmerican Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court ... this was a drastic rewrite".[62]
The end result ofLawrence v. Texas was "like theRoe v. Wade of the homosexual issue",[63][64] according toPeter LaBarbera of theCulture and Family Institute andAmericans for Truth about Homosexuality, an organization deemed to be an anti-gay hate group by theSouthern Poverty Law Center.[65]
Then president of theUnited States Conference of Catholic Bishops,Wilton Gregory, released a statement that the Supreme Court decision was to be deplored.[66]
Lawrence invalidatedage of consent laws that differed based on the relative sexes of the partners. The day after theLawrence decision, the Supreme Court ordered the State of Kansas to review its 1999"Romeo and Juliet" law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior but explicitly excludes same-sex conduct from the sentence reduction.[67] In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court's ruling on October 21, 2005,[68] inState v. Limon.[69]
InMuth v. Frank (2005), a man convicted of criminal behavior by having an incestuous relationship in Wisconsin appealed his ruling in an attempt to apply the logic of sexual privacy inLawrence.[70] TheSeventh Circuit declined to extend the right of privacy stated inLawrence to cases of consensual adult incest. The case was distinguished because the parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring as suggested by geneticists who were witnesses at the trial.[71]
InMartin v. Ziherl, theSupreme Court of Virginia ruled the state's fornication law unconstitutional relying onLawrence and the right to privacy.[72]
TheConnecticut Supreme Court rejected an argument based onLawrence that a high school teacher had a constitutional right to engage in sexual activity with his consent-aged students. The court rejected the teacher's privacy and liberty arguments in the context of an "inherently coercive relationship wherein consent might not easily be refused".[73][74]
Upon rehearingWilliams v. Pryor afterLawrence, theEleventh Circuit Court of Appeals upheld Alabama's ban on the sale of sex toys.[75] Facing comparable facts, theFifth Circuit struck down Texas's sex toy ban holding that "morality is an insufficient justification for a statute" and "interests in 'public morality' cannot constitutionally sustain the statute afterLawrence".[76]
Joanna Grossman wrote soon after the decision thatLawrence v. Texas should pose no serious obstacle to bestiality prosecutions, because such laws "plainly can be upheld on a 'cruelty to animals' justification."[77] Leighann Lassiter, animal cruelty policy director[78] for theHumane Society of the United States, notes, however, theLawrence ruling may create complications in several states that include human sexual conduct and bestiality in the same "anti-sodomy" statute.[79] As of 2018, 45 states have direct prohibitions on bestiality, while others may prohibit it under broader animal cruelty laws, according to the Animal Legal and Historical Center (Michigan State University College of Law).[80]
In 2015, the Erotic Service Provider Legal Education & Research Project (ESPLERP) filed a lawsuit againstGeorge Gascón, District Attorney for San Francisco, alleging that the state of California's anti-prostitution laws prevented relations between consenting adults in violation ofLawrence. The District Court dismissed the lawsuit and the Ninth Circuit affirmed the dismissal, reasoning that "the commercial nature of the relationship between prostitute and client suggests a far less selective relationship than that which previously has been held to constitute an intimate association."[81]
A few months later, on November 18, 2003, theMassachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Although deciding the case on the basis of the state constitution, Chief JusticeMargaret Marshall quotedLawrence in its second paragraph: "Our obligation is to define the liberty of all, not to mandate our own moral code."[82]
Aside from Massachusetts, other state case law had been quite explicit in limiting the scope ofLawrence and upholding state bans on same-sex marriage regulations. (SeeStandhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003);Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005);Hernandez v. Robles (7 NY3d 338 2005).)
In the first successful federal court challenge to a state same-sex marriage ban, JudgeVaughn Walker cited Scalia's dissent in his decision inPerry v. Schwarzenegger that foundCalifornia's Proposition 8 banning same-sex marriage unconstitutional.[83]
In the majority decision, Justice Kennedy wrote: "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."[84] The "obvious" meaning, asNancy D. Polikoff wrote, was to point out thatLawrence could not be used to legalize "sex with children". Nonetheless, in 2004, the11th Circuit Court of Appeals quoted this sentence when saying thatLawrence had not established a right for gay parents to adopt. In an adoption case, the 11th Circuit said, "the involved actors are not only consenting adults, but minors as well ... Hence, we conclude that theLawrence decision cannot be extrapolated to create a right to adopt for homosexual persons."[85][86]
TheUnited States Court of Appeals for the Armed Forces, the last court of appeals for courts-martial before the Supreme Court, ruled thatLawrence applies to Article 125 of theUniform Code of Military Justice, the article banning sodomy. Nevertheless, it twice upheld prosecutions under that article when applied as necessary to preserve good order and discipline in the armed forces.[87][88] Article 125 was repealed by theNational Defense Authorization Act for Fiscal Year 2014.
On June 24, 2022, the Supreme Court overturnedRoe v. Wade (1973) inDobbs v. Jackson Women's Health Organization and removed the federal protection of the right to abortion,[89] on the grounds that the "right to privacy" does not extend to that of abortion on the criteria fromWashington v. Glucksberg that a right must be "deeply rooted in the Nation's history",[90] and abortion was considered a crime, a view that some historians argued is incomplete.[91] In the majority opinion, JusticeSamuel Alito responded to the dissent opinion's concerns, saying that the ruling would not affect othersubstantive due process cases.[92][93][91] In his concurring opinion, JusticeClarence Thomas, wrote, "In future cases, we should reconsider all of this Court's substantive due process precedents, includingGriswold,Lawrence, andObergefell. Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents." The three cases Thomas mentioned concerned contraception (Griswold), sodomy (Lawrence), and same-sex marriage (Obergefell). respectively. The joint dissenting opinion of JusticesStephen Breyer,Sonia Sotomayor, andElena Kagan, which criticized the majority for rejectingstare decisis and overruling precedents dating back toGriswold, responded, "Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other."[89][94]
Justice Scalia and others[who?] have noted that the majority did not appear to apply thestrict scrutiny standard of review that would be appropriate if theLawrence majority had recognized a full-fledged "fundamental right". He wrote the majority instead applied "an unheard-of form of rational basis review that will have far-reaching implications beyond this case".[95]
Nan D. Hunter has argued thatLawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either "fundamental" or "not fundamental" as too restrictive.[96] Justice Souter, for example, argued inWashington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government's action has not been arbitrary.[97] Justice Stevens had repeatedly criticized tiered scrutiny and preferred a more active judicial balancing test based on reasonability.[98]
Lower courts have readLawrence differently on the question of scrutiny. InLofton v. Secretary of the Department of Children and Family Services, theUnited States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly thatLawrence did not apply strict scrutiny.[99] InWitt v. Department of the Air Force, theUnited States Court of Appeals for the Ninth Circuit held thatLawrence appliedintermediate scrutiny.[100]
In 2000, Robert Eubanks was beaten to death in a case that was never solved. Tyron Garner died of meningitis in 2006, aged 39.[101] John Lawrence died of complications from a heart ailment in 2011, aged 68.[102]
{{cite web}}: CS1 maint: numeric names: authors list (link)358 F.3d 804 (11th Cir. 2004)
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