Lawrence v. Texas
Decided on Mar. 26, 2003; 539 US 558

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.



A. Issues Discussed: Due Process

B. Legal Question Presented:

Does the Texas "homosexual conduct" law, which prohibits certain forms of private, consensual sexual activity only between persons of the same sex, violate the Due Process Clause or Equal Protection Clause of the Fourteenth Amendment?


A. Background:

"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 controlling on that point."

On certiorari, the US Supreme Court reversed the judgment of the Court of Appeals of Texas, Fourteenth District.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. Mc-Master of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.


The Supreme Court held that:

"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.

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 v. Hardwick holding...

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 not 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...

Far from possessing 'ancient roots,' 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 same-sex relations for criminal prosecution...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. 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...

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...

Bowers' rationale does not withstand careful analysis... 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. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life."

The US Supreme Court reversed the Court of Appeals of Texas, Fourteenth District judgment.

Justice Vote: 6 Pro vs. 3 Con

  • Kennedy, A. Pro (Wrote majority opinion)
  • O'Connor, S. Pro (Wrote concurring opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Breyer, S. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Scalia, A. Con (Wrote dissenting opinion)
  • Thomas, C. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as amicus curiae, urged reversal of the judgment of the Court of Appeals of Texas, Fourteenth District; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent win.