View source for Lawrence v. Texas

{{Short description|2003 U.S. Supreme Court case on anti-sodomy laws}}
{{Use American English|date=September 2025}}
{{Use mdy dates|date=September 2023}}
{{Infobox SCOTUS case
| Litigants = Lawrence v. Texas
| ArgueDate = March 26
| ArgueYear = 2003
| DecideDate = June 26
| DecideYear = 2003
| FullName = John Geddes Lawrence and Tyron Garner v. [[Texas]]
| Docket = 02-102
| ParallelCitations = 123 S. Ct. 2472; 156 [[L. Ed. 2d]] 508; 2003 [[U.S. LEXIS]] 5013; 71 U.S.L.W. 4574; 2003 Cal. Daily Op. Service 5559; 2003 Daily Journal DAR 7036; 16 ''Fla. L. Weekly Fed. S'' 427
| USVol = 539
| USPage = 558
| OpinionAnnouncement = 
| Prior = Defendants convicted, [[Harris County, Texas|Harris County]] Criminal Court (1999), ''rev'd'', 2000 WL 729417 ([[Texas Court of Appeals|Tex. App.]] 2000) (depublished), ''aff'd en banc'', 41 [[South Western Reporter|S.W.3d]] 349 (Tex. App. 2001), ''review denied'' (Tex. App. 2002), ''[[certiorari|cert.]] granted'', {{ussc|537|1044|2002|el=no}}.
| Subsequent = ''Complaint dismissed'', 2003 WL 22453791, 2003 Tex. App. LEXIS 9191 (Tex. App. 2003)
| QuestionsPresented =
# Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;
# Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment;
# Whether ''[[Bowers v. Hardwick]]'' should be overruled.
| Holding = 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]]. Court of Appeals for the Fourteenth District of Texas reversed and remanded. ''[[Bowers v. Hardwick]]'' overruled.
| OralArgument = https://www.oyez.org/cases/2000-2009/2002/2002_02_102/argument/
| OralReargument = 
| Majority = Kennedy
| JoinMajority = Stevens, Souter, Ginsburg, Breyer
| Concurrence = O'Connor (in judgment)
| JoinConcurrence = 
| Concurrence2 = 
| JoinConcurrence2 = 
| Concurrence/Dissent = 
| JoinConcurrence/Dissent = 
| Dissent = Scalia
| JoinDissent = Rehnquist, Thomas
| Dissent2 = Thomas
| JoinDissent2 = 
| LawsApplied = [[Fourteenth Amendment to the United States Constitution|U.S. Const. amend. XIV]];<br />Tex. Penal Code § 21.06(a) (2003)
| Overturned previous case = ''[[Bowers v. Hardwick]]'' (1986)
}}

'''''Lawrence v. Texas''''', 539 U.S. 558 (2003), is a [[List of landmark court decisions in the United States|landmark]] decision of the [[Supreme Court of the United States|United States Supreme Court]] in which the Court ruled that U.S. state laws [[Sodomy laws in the United States|criminalizing sodomy]] between consenting adults are [[Constitutionality|unconstitutional]].{{efn|name=clarification|The judgment does not recognize a constitutional right to certain sexual activities such as prostitution, bestiality, and incest, due to other metrics, such as the perceived inherent harm that these activities carry.<ref name=LawrenceSCOTUS />}}<ref name=LawrenceSCOTUS>{{ussc|name=Lawrence v. Texas|link=|volume=539|page=558|pin=|year=2003}}</ref>{{sfnp|Chemerinsky|2015|loc=§10.4, p. 881}} The Court reaffirmed the concept of a "[[right to privacy]]" that earlier cases had found the [[Constitution of the United States|United States Constitution]] provides, even though [[Penumbra (law)|it is not explicitly enumerated]].{{sfnp|Chemerinsky|2015|loc=§10.4, p. 882}} 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 between [[consent]]ing adults.{{sfnp|Nowak|Rotunda|2012|loc=§18.28(b)}}

In 1998, John Geddes Lawrence Jr. was arrested along with Tyron Garner at Lawrence's apartment in [[Harris 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 a [[misdemeanor]] under Texas' [[Sodomy laws in the United States|anti-sodomy law]]; both pleaded [[Nolo contendere|no contest]] and received a fine. Assisted by the American civil rights organization [[Lambda Legal]], Lawrence and Garner appealed their sentences to the [[Texas Courts of Appeals]], which ruled in 2000 that the sodomy law was unconstitutional. Texas appealed to have the court rehear the case ''[[en banc]]'', and in 2001 it overturned its prior judgment and upheld the law. Lawrence appealed this decision to the [[Texas 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 case ''[[Bowers v. Hardwick]]'', where it had upheld a challenged [[Georgia (U.S. state)|Georgia]] statute and did not find a constitutional protection of [[sexual privacy]]. It explicitly overruled ''Bowers'', 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 by [[substantive due process]] under the [[Due Process Clause]] of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment to the U.S. Constitution]].<ref>15 ''[[Geo. Mason U. C.R. L.J.]]'' 105 2004–2005; 102 Mich. L. Rev. 1555 2003–2004</ref>

The case attracted much public attention, and 33 ''[[Amicus curiae|amici curiae]]'' ("friends of the court") [[Brief (law)|briefs]] were filed.<ref>{{cite web|author=Supreme Court of the United States|date=n.d.|title=Docket No. 02-102|url=https://www.supremecourt.gov/search.aspx?FileName=/docketfiles/02-102.htm}}</ref> Its outcome was celebrated by [[gay rights advocates]], and set the stage for further reconsideration of standing law, including the landmark cases of ''[[United States v. Windsor]]'' (2013), which invalidated Section 3 of the [[Defense of Marriage Act]], and ''[[Obergefell v. Hodges]]'' (2015), which recognized [[same-sex marriage]] as a fundamental right under the United States Constitution.

== Background ==
[[Sodomy law|Legal punishments for sodomy]] often included heavy fines, prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such as [[suffrage]], to anyone convicted of the crime of sodomy.<ref>{{cite book |last=de la Croix |first=St. Sukie |author-link=St. Sukie de la Croix |date=2012 |title=Chicago Whispers: A History of LGBT Chicago Before Stonewall |url=https://books.google.com/books?id=44lheqlq-jYC&pg=PA248 |publisher=University of Wisconsin Press |page=248 |isbn=9780299286934 |access-date=January 29, 2015 }}</ref> 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".<ref>{{cite news |title=Homosexual To Fight Denial of Car License |newspaper=[[The Day (New London)|The Day]] |date= November 2, 1972 |url=https://news.google.com/newspapers?nid=1915&dat=19701102&id=oSIiAAAAIBAJ&sjid=S3QFAAAAIBAJ&pg=863,1064183}}</ref>

As of 1960, every state had an anti-sodomy law.<ref name=nyt>''[[The New York Times]]'': [https://www.nytimes.com/2003/06/26/politics/26WIRE-SODO.html Supreme Court Strikes Down Texas Law Banning Sodomy", June 26, 2003], accessed July 16, 2012</ref> In 1961, the American Law Institute's [[Model Penal Code]] advocated the repeal of sodomy laws as they applied to private, adult, consensual behavior.<ref>Illinois in 1961 became the first state to repeal its sodomy law. Laws of Illinois 1961, page 1983, enacted July 28, 1961, effective Jan. 1, 1962. [https://web.archive.org/web/20100515065329/http://www.glapn.org/sodomylaws/sensibilities/illinois.htm The History of Sodomy Laws in the United States: Illinois].</ref> Two years later the [[American Civil Liberties Union]] (ACLU) took its first major case in opposition to these laws.<ref>{{cite web|url=https://www.aclu.org/lgbt/gen/24578res20060316.html |title= ACLU and the History of LGBT Rights & HIV/AIDS |publisher=[[American Civil Liberties Union]] |date= March 26, 2006 |access-date=December 14, 2012}}</ref>

In ''[[Griswold v. Connecticut]]'' (1965), the Supreme Court struck down a law barring the use of [[contraceptives]] by married couples. In ''Griswold,''  the Supreme Court recognized for the first time that couples, at least married couples, had a right to privacy,<ref>{{cite web|url=https://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html |title=Opinion of the Court (Griswold v. Connecticut) |publisher=Law.cornell.edu |access-date= May 2, 2010}}</ref> drawing on the [[Fourth Amendment to the United States Constitution|Fourth Amendment]]'s protection of private homes from searches and seizures without a warrant based on probable cause, the [[Fourteenth Amendment Due Process|Fourteenth Amendment]]'s guarantee of due process of law in the states, and the [[Ninth Amendment to the United States Constitution|Ninth 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.<ref name=Eisenstadt>{{ussc|name=Eisenstadt v. Baird|link=|volume=405|page=438|pin=|year=1972}}</ref> In 1973, in ''[[Roe 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.

In ''[[Bowers 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.<ref name=Bowers>{{ussc|name=Bowers v. Hardwick|link=|volume=478|page=186|pin=|year=1986}}</ref> The Court rejected this challenge in a 5 to 4 decision. Justice [[Byron White]]'s majority opinion emphasized that ''Eisenstadt'' and ''Roe'' had only recognized a [[civil right|right]] 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 to [[sodomy]]. Justice [[Harry Blackmun|Blackmun]], writing in dissent, argued that ''Eisenstadt'' held that the Constitution protects people as individuals, not as family units.<ref>''Eisenstadt v. Baird,'' 405 U.S. at 453.</ref> 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.<ref>''Bowers v. Hardwick'', 478 U.S. at 219.</ref>

By the time of the ''Lawrence'' 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.<ref name=nyt />

== History ==

=== Arrest of Lawrence and Garner ===
On September 17, 1998, John Geddes Lawrence Jr.,<ref>John Geddes Lawrence, August 2, 1943 – November 20, 2011. ''MetroWeekly'': [http://www.metroweekly.com/poliglot/2011/12/john-geddes-lawrence-of-lawren.html Chris Geidner, "John Geddes Lawrence, of Lawrence v. Texas, Has Died at 68", December 23, 2011] {{webarchive|url=https://web.archive.org/web/20120109064321/http://metroweekly.com/poliglot/2011/12/john-geddes-lawrence-of-lawren.html |date=January 9, 2012 }}, accessed May 9, 2012</ref><ref>{{cite news |url=https://www.nytimes.com/2011/12/24/us/john-lawrence-plaintiff-in-lawrence-v-texas-dies-at-68.html |title=John Lawrence, Plaintiff in Gay Rights Case, Dies at 68 |last=Liptak|first=Adam|author-link=Adam Liptak| work = [[The New York Times]] |date=December 23, 2011}}</ref> a gay medical technologist, was hosting two gay acquaintances, Tyron Garner<ref>July 10, 1967 – September 11, 2006. ''New York Times'': [https://www.nytimes.com/2006/09/14/obituaries/14garner.html "Tyron Garner, 39, Plaintiff in Pivotal Sodomy Case, Dies", September 14, 2006], accessed September 14, 2006</ref> and Robert Eubanks,<ref>Robert Royce Eubanks, July 22, 1958 – October 14, 2000. [[Social Security Death Index]]</ref> at his apartment at 794 East Normandy Street, in northeast [[Harris County, Texas]],<ref>{{cite news|author=Christian, Carol|url=http://www.chron.com/news/houston-texas/article/Gay-group-takes-Houston-case-to-high-court-2103134.php|title=Gay group takes Houston case to high court|newspaper=[[Houston Chronicle]]|date=2002-07-16|access-date=2017-04-23}}</ref> east of the [[Houston]] city limits.<ref>{{cite magazine |last=Levinson |first=Sanford |author-link=Sanford Levinson |title=The Gay Case |url=http://www.texasmonthly.com/articles/the-gay-case/ |archive-url=https://web.archive.org/web/20170518212207/https://www.texasmonthly.com/articles/the-gay-case/ |archive-date=2017-05-18 |magazine=[[Texas Monthly]] |date=March 2012 |access-date=2017-04-23}}</ref> 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.<ref>Though Eubanks' report was false, it gave the police [[probable cause]] to enter Lawrence's home.</ref>

Four [[Harris County, Texas|Harris 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 C [[misdemeanor]] if someone "engages in deviate sexual intercourse with another individual of the same sex".<ref>{{cite web|url=http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.21.htm#62087.53405 |title=Section 21.06 Was Declared Unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472. Title 5. Offenses Against the Person Chapter 21. Sexual Offenses |publisher=Statutes.legis.state.tx.us |access-date= May 2, 2010}}</ref> 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.<ref>{{cite book |title=Flagrant Conduct: The Story of Lawrence v. Texas |last=Carpenter |first=Dale |author-link=Dale Carpenter |year=2012 |publisher=W. W. Norton & Company |location=New York |isbn=978-0-393-06208-3 |pages=[https://archive.org/details/flagrantconducts0000carp/page/11 11–12] |oclc=761383909 |url=https://archive.org/details/flagrantconducts0000carp/page/11 }}</ref>

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".<ref name=car83>Carpenter, ''Flagrant Conduct'', 83</ref> 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.<ref>Carpenter, ''Flagrant Conduct'', 113–4</ref> Eubanks pleaded [[Nolo contendere|no 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.<ref>Carpenter, ''Flagrant Conduct'', 131</ref>

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.  <ref>{{Cite web |title=Nov 07, 1998, page 14 - The Huntsville Times at Newspapers.com |url=https://www.newspapers.com/image/1186129447/ |access-date=2025-08-11 |website=Newspapers.com |language=en}}</ref>

=== Prosecution and appeals ===
The gay rights advocates from [[Lambda Legal]] litigating the case convinced Lawrence and Garner not to contest the charges and to plead [[no contest]] instead.<ref name=lithwicknewyorker>{{cite magazine |title=Extreme Makeover: The story behind the story of Lawrence v. Texas |author= Lithwick, Dahlia |date=March 12, 2012 |magazine= [[The New Yorker]] |url=http://www.newyorker.com/arts/critics/books/2012/03/12/120312crbo_books_lithwick?google_editors_picks=true |access-date=March 9, 2012|author-link= Dahlia Lithwick }}</ref> 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.<ref>Carpenter, ''Flagrant Conduct'', 19–40</ref>

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 Amendment [[equal protection]] grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between [[heterosexual]] couples. They also asserted a right to privacy and that the Supreme Court's decision in ''Bowers v. Hardwick'' that found no privacy protection for consensual sex between homosexuals was "wrongly decided".<ref>Carpenter, ''Flagrant Conduct'', 144–9</ref> 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.<ref>Carpenter, ''Flagrant Conduct'', 150–2</ref>

A three-judge panel of the Texas [[Fourteenth Court of Appeals of Texas|Fourteenth Court of Appeals]] heard the case on November 3, 1999.<ref>Carpenter, ''Flagrant Conduct'', 162–6</ref> 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.<ref>Carpenter, ''Flagrant Conduct'', 167–70</ref> The Court of Appeals decided to review the case ''[[en 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.<ref>Carpenter, ''Flagrant Conduct'', 173, 175</ref> Attorneys for Lawrence and Garner asked the [[Texas 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."<ref>Carpenter, ''Flagrant Conduct'', 177–9</ref>

== Consideration by the Supreme Court ==
In a petition for ''[[certiorari]]'' filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:<ref>Carpenter, ''Flagrant Conduct'', 184–5</ref>

#Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;
#Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment;
#Whether ''[[Bowers v. Hardwick]]'' should be overruled.

On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen ''[[amicus curiae]]'' briefs to complement their own brief. Submitting organizations included the [[American Bar Association]], the [[American Psychological Society]], the [[American Public Health Association]], the [[Cato Institute]], the [[Log Cabin Republicans]], a group of history professors, and a group of religious denominations.<ref>Carpenter, ''Flagrant Conduct'', 198–200</ref> An op-ed in support by former Senator [[Alan Simpson (American politician)|Alan Simpson]] appeared in ''[[The Wall Street Journal]]'' on the morning scheduled for oral argument.<ref>Carpenter, ''Flagrant Conduct'', 200</ref> The attorneys for Texas did not control the ''amicus'' briefs submitted in support of their position by representatives of religious and [[social conservatism]], including [[Jay Sekulow|Jay Alan Sekulow]] and [[Robert P. George]]. Several, including that of [[Liberty 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".<ref>Carpenter, ''Flagrant Conduct'', 203–206</ref>

At [[oral 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.<ref>Carpenter, ''Flagrant Conduct'', 211 ff.</ref> Texas Attorney General [[John Cornyn]], then a candidate for the U.S. Senate, refused to have his office argue the case. [[Chuck Rosenthal (district attorney)|Charles A. Rosenthal]], District Attorney of Harris County, represented the state.<ref>Carpenter, ''Flagrant Conduct'', 214–216</ref> 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.<ref>[[Mark Tushnet]], ''A Court Divided: The Rehnquist Court and the Future of Constitutional Law'' (NY: W.W. Norton, 2005), 169–170</ref><ref>Carpenter, ''Flagrant Conduct'', 189–191, 214–216, 234–247</ref>

== Decision ==
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 the [[Due Process Clause]], while a sixth, [[Sandra Day O'Connor]], held it violated the [[Equal Protection Clause]].

=== Opinion of the Court ===
[[File:Anthony Kennedy official SCOTUS portrait crop.jpg|thumb|right|190px|Justice Anthony Kennedy, the author of the Court's opinion in ''Lawrence v. Texas'']]
Five justices formed the majority and joined an opinion written by Justice [[Anthony Kennedy]]. The Court ruled that Texas's law prohibiting private homosexual activity between consenting adults violated the [[Due Process Clause]] of the [[Fourteenth Amendment to the U.S. Constitution]].{{sfnp|Chemerinsky|2015|loc=§10.4, pp. 881–82}}  The Court did not describe private sexual activity as a fundamental right requiring the "[[strict scrutiny]]" standard of judicial review,{{sfnp|Chemerinsky|2015|loc=§10.4, pp. 882}} but rather focused on why its previous decision in ''Bowers v. Hardwick'' had been wrong.

First, the Court stated that its decision in ''Bowers'' went against its statements in cases involving child-rearing (''[[Pierce v. Society of Sisters]]'' and ''[[Meyer v. Nebraska]]''), contraception (''[[Griswold v. Connecticut]]'' and ''[[Eisenstadt v. Baird]]''{{--)}}, and abortion (''[[Roe v. Wade]]'') that the Constitution protects a right to privacy and personal autonomy.{{sfnp|Nowak|Rotunda|2012|loc=§18.28(b)}} Next, Kennedy wrote that in ''Bowers'' 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 in ''Bowers''.<ref>{{harvp|Nowak|Rotunda|2012|loc=§18.28(b)}}, quoting ''Lawrence'', 539 U.S. at 568.</ref> 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.{{sfnp|Nowak|Rotunda|2012|loc=§18.28(b)}}

Lastly, Kennedy noted that ''Bowers''{{'s}} jurisprudential foundation had been weakened by two subsequent cases involving sexuality (''[[Planned Parenthood v. Casey]]'' and ''[[Romer v. Evans]]''), and that the reasoning of ''Bowers'' 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.<ref>{{harvp|Nowak|Rotunda|2012|loc=§18.28(b)}}, quoting ''Lawrence'', 539 U.S. at 566.</ref> 
{{Blockquote
|text=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.
|source=''Lawrence'', 539 U.S. at 578 (citation omitted).
}}
Kennedy reviewed the assumption the court made in ''Bowers'', 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, the [[Wolfenden Report]] of 1957, and a 1981 decision of the [[European Court of Human Rights]] in Case 7525/76 ''[[Dudgeon v United Kingdom]]''.<ref>{{cite web|url=https://hudoc.echr.coe.int/eng?i=001-57472|title=HUDOC – European Court of Human Rights|website=hudoc.echr.coe.int}}</ref>

=== O'Connor's concurrence ===
[[File:Sandra Day O'Connor.jpg|thumb|150px|[[Sandra Day O'Connor|Justice O'Connor]], argued the statute was unconstitutional under the [[Equal Protection Clause]] rather than [[due process]] and would have kept ''Bowers'' intact.]]
Justice [[Sandra Day O'Connor]] only concurred in the judgment and offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of ''Bowers''—she had been in the ''Bowers'' 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.

=== Scalia's dissent ===
[[File:Lawrence v. Texas Scalia Dissent Title.png|thumb|Opening page of Scalia's dissent in ''Lawrence v. Texas'']]
Justice [[Antonin Scalia]] wrote a dissent, which [[Chief Justice of the United States|Chief Justice]] [[William H. Rehnquist]] and Justice [[Clarence Thomas]] joined. Scalia objected to the Court's decision to revisit ''Bowers'', pointing out many decisions from lower courts that relied on ''Bowers'' that might now need to be reconsidered.<ref>''[[Williams v. Pryor]]'', which upheld [[Alabama]]'s prohibition on the sale of [[Sex toy|sex toys]]; ''[[Milner v. Apfel]]'', which asserted that "legislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"; ''[[Holmes v. California Army National Guard]]'', which upheld the federal statute and regulations banning from military service those who engage in homosexual conduct; ''[[Owens v. State]]'', 352 Md. 663, which held that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage."</ref> He noted that the same rationale used to overturn ''Bowers''<ref>He summarized the majority's criteria as: looking to (1)&nbsp;"whether its foundations have been 'eroded' by subsequent decisions; (2)&nbsp;it has been subject to 'substantial and continuing' criticism; (3)&nbsp;it has not induced 'individual or societal reliance{{'"}}.</ref> could have been used to overturn ''Roe v. Wade'', which some of the Justices in the majority in ''Lawrence'' had upheld in ''[[Planned Parenthood v. Casey]]'' (1992). Scalia also criticized the majority opinion for failing to give the same respect to ''[[stare decisis]]'' that three of those in the majority had insisted on in ''Casey''.<ref>Scalia noted that in ''Casey'', ''stare decisis'' was of the utmost importance because of the divisive nature of the case. The majority in ''Lawrence'', he wrote, "do[es] not bother to distinguish—or indeed, even bother to mention—the paean to ''stare decisis'' coauthored by three Members of today's majority in ''Planned Parenthood v. Casey''. There, when ''stare decisis'' meant the preservation of judicially invented abortion rights, the widespread criticism of ''Roe'' was strong reason to reaffirm it." He continued: "Today, however, the widespread opposition to ''Bowers'', a decision resolving an issue as 'intensely divisive' as the issue in ''Roe'', is offered as a reason in favor of overruling it."</ref> O'Connor's concurrence noted that Scalia's dissent conceded that if cases such as ''[[Romer v. Evans]]'' "have ''stare decisis'' effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of [[rational basis review]]" applied.<ref>{{cite web | url=https://www.law.cornell.edu/wex/lawrence_v._texas | title=Lawrence v. Texas }}</ref>

Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in ''Bowers'', state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.<ref>For a critique of this argument, see Ruth E. Sternglantz, "[https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1335&context=penn_law_review Raining on the Parade of Horribles: Of Slippery Slopes, Faux Slopes, and Justice Scalia's Dissent in ''Lawrence V. Texas'']", ''University of Pennsylvania Law Review'', vol. 153, no. 3 (January 2005), esp. 1118–20.</ref>

He wrote that:

{{blockquote|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-called [[homosexual 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:

{{blockquote|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".<ref>{{cite web|author=Scalia |url=https://www.law.cornell.edu/supct/html/02-102.ZD.html |title=Lawrence V. Texas |publisher=Law.cornell.edu |date= |accessdate=2022-05-09}}</ref>

=== Thomas's dissent ===
Justice Thomas wrote in a separate, two-paragraph dissent that the sodomy law the Court struck down was "uncommonly silly", a phrase drawn from Justice [[Potter Stewart]]'s dissent in ''[[Griswold 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.<ref name="Thomas">{{cite web|author=Thomas |url=https://www.law.cornell.edu/supct/html/02-102.ZD1.html |title=Lawrence V. Texas |publisher=Law.cornell.edu |date=2003-06-26 |accessdate=2022-05-09}}</ref>

== Reactions ==
President [[George W. Bush]]'s press secretary [[Ari 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".<ref>Carpenter, ''Flagrant Conduct'', 269</ref> After quoting Fleischer calling it "a state matter", [[Linda Greenhouse]], writing in ''[[The 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."<ref>''[[The New York Times]]'': [https://www.nytimes.com/2003/06/27/us/supreme-court-homosexual-rights-justices-6-3-legalize-gay-sexual-conduct.html][[Linda Greenhouse]]<span>, "Justices, 6-3, Legalize Gay Sexual Conduct in Sweeping Reversal of Court's '86 Ruling", June 27, 2003</span>, accessed July 16, 2012</ref>

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."<ref>{{cite web |url=http://transcripts.cnn.com/TRANSCRIPTS/0306/26/se.07.html |title=Interview With Ruth Harlow |publisher= CNN |date= June 26, 2003 |access-date= May 2, 2010}}</ref>

Professor [[Laurence Tribe]] has written that ''Lawrence'' "may well be remembered as the ''[[Brown v. Board of Education]]'' of gay and lesbian America".<ref>[[Laurence Tribe|Tribe, Laurence H.]] (2004). "Lawrence v. Texas: The 'Fundamental Right' That Dare Not Speak Its Name". ''[[Harvard Law Review]]''. 117:1894–95.</ref> [[Jay Alan Sekulow]] of the [[American 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".<ref>{{cite web|url=http://www.aclj.org/askjay/040726_barbara_wa_marriage.asp |first=Jay Alan |last=Sekulow |author-link=Jay Alan Sekulow |title=Ask Jay: Today's Question: Do homosexuals now have protected-class status? |publisher=[[American Center for Law and Justice]] |date=July 26, 2004 |access-date= May 2, 2010 |archive-url=https://web.archive.org/web/20041001064651/http://www.aclj.org/askjay/040726_barbara_wa_marriage.asp |archive-date=October 1, 2004}}</ref>

The end result of ''Lawrence v. Texas'' was "like the ''[[Roe v. Wade]]'' of the homosexual issue",<ref>Robertson, Tatsha (June 27, 2003). [https://pqasb.pqarchiver.com/boston/access/352648011.html?dids=352648011:352648011&FMT=ABS&FMTS=ABS:FT&type=current&date=Jun+27%2C+2003&author=Tatsha+Robertson%2C+Globe+Staff&pub=Boston+Globe&desc=GAYS%2C+LESBIANS+PRAISE+DECISION+OTHERS+COMPARE+IT+TO+ROE+V.+WADE&pqatl=google "Gays, Lesbians Praise Decision Others Compare It to Roe v. Wade"] {{Webarchive|url=https://web.archive.org/web/20130319092522/http://pqasb.pqarchiver.com/boston/access/352648011.html?dids=352648011:352648011&FMT=ABS&FMTS=ABS:FT&type=current&date=Jun+27%2C+2003&author=Tatsha+Robertson%2C+Globe+Staff&pub=Boston+Globe&desc=GAYS%2C+LESBIANS+PRAISE+DECISION+OTHERS+COMPARE+IT+TO+ROE+V.+WADE&pqatl=google |date=2013-03-19 }}. ''[[The Boston Globe]]''. National/Foreign p. A28. Retrieved February 16, 2011.</ref><ref>Shapiro, Ari. (October 13, 2006). [https://www.npr.org/templates/story/story.php?storyId=6262667 "Gay Republicans Feel Heat from the Foley Scandal"]. ''[[All Things Considered]]''. [[National Public Radio]]. Retrieved February 16, 2011.</ref> according to [[Peter LaBarbera]] of the [[Culture and Family Institute]] and [[Americans for Truth about Homosexuality]], an organization deemed to be an anti-gay hate group by the [[Southern Poverty Law Center]].<ref>{{Cite news|url=https://www.splcenter.org/fighting-hate/intelligence-report/2010/18-anti-gay-groups-and-their-propaganda|title=18 Anti-Gay Groups and Their Propaganda|website=Southern Poverty Law Center}}</ref>

Then president of the [[United States Conference of Catholic Bishops]], [[Wilton Daniel Gregory|Wilton Gregory]], released a statement that the Supreme Court decision was to be deplored.<ref>{{Cite web |date=23 June 2003 |title=Conference President Criticizes Supreme Court Decision |url=https://www.usccb.org/news/2003/conference-president-criticizes-supreme-court-decision |access-date=10 January 2023 |website=[[United States Conference of Catholic Bishops]] |language=en}}</ref>

== Subsequent cases ==

===Sexual privacy===
====Age of consent laws====
''Lawrence'' invalidated [[age of consent]] laws that differed based on the relative sexes of the partners. The day after the ''Lawrence'' decision, the Supreme Court ordered the State of Kansas to review its 1999 [[Romeo and Juliet law|"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.<ref>{{cite news |url=http://www.sodomylaws.org/lawrence/lwnews002.htm |title= Imprisoned Teen Challenges Kansas 'Romeo and Juliet' Law |first=Geraldine |last=Sealey |publisher=Gay & Lesbian Archives of the Pacific Northwest |location=Sodomy Laws |agency=[[ABC News (United States)|ABC News]] |date=January 17, 2003 |access-date= December 14, 2012 |archive-url=https://web.archive.org/web/20081212164922/http://www.glapn.org/sodomylaws/lawrence/lwnews002.htm |archive-date= December 12, 2008}}</ref> 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,<ref>{{cite web|archive-url=https://web.archive.org/web/20051029144505/http://www.aclukswmo.org/news/index.html |url=http://www.aclukswmo.org/news/index.html |archive-date=October 29, 2005 |publisher=American Civil Liberties Union of Kansas and Western Missouri |title=ACLU Applauds Unanimous Kansas Supreme Court Decision Reversing Conviction of Gay Teen Unfairly Punished under "Romeo and Juliet" Law |date=October 21, 2005 |url-status=dead }}</ref> in ''[[State v. Limon]]''.<ref>280 Kan. 275, 122 P.3d 22 (2005)</ref>

====Consensual incest====
In ''[[Muth 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 in ''Lawrence''.<ref>{{cite web|title=Muth v. Frank|url=https://caselaw.findlaw.com/us-7th-circuit/1247048.html|website=FindLaw}}</ref> The [[United States Court of Appeals for the Seventh Circuit|Seventh Circuit]] declined to extend the right of privacy stated in ''Lawrence'' 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.<ref>{{cite web|title=State v. Allen M.|url=http://wicourts.gov/html/ca/97/97-0852.htm|access-date=20 September 2015}}</ref>

====Fornication====
In ''[[Martin v. Ziherl]]'', the [[Supreme Court of Virginia]] ruled the state's fornication law unconstitutional relying on ''Lawrence'' and the right to privacy.<ref>Grossmann, Johanna (January 25, 2005). [https://archive.today/20120722060817/http://articles.cnn.com/2005-01-25/justice/grossman.oldlaws_1_criminal-ban-fornication-virginia-court "Virginia Strikes Down State Fornication Law"]. [[CNN]]. Retrieved May 9, 2012.</ref>

====Teacher-student relationships====
The [[Connecticut Supreme Court]] rejected an argument based on ''Lawrence'' 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".<ref>{{cite news|url=http://www.courant.com/news/local/hc-ctteachersex0221.artfeb21,0,2672269.story |title=Privacy Ruled Out In Sex Case |work=[[Hartford Courant]] |date=February 21, 2007 |access-date=December 14, 2012 |archive-url=https://web.archive.org/web/20070223083244/http://www.courant.com/news/local/hc-ctteachersex0221.artfeb21%2C0%2C2672269.story |archive-date=February 23, 2007 |url-status=dead }}</ref><ref>{{cite web|url=http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR281/281CR39.pdf |title=Jud.state.ce.us |access-date= May 2, 2010}}</ref>

====Adult entertainment====
Upon rehearing ''[[Williams v. Pryor]]'' after ''Lawrence'', the [[United States Court of Appeals for the Eleventh Circuit|Eleventh Circuit Court of Appeals]] upheld Alabama's ban on the sale of sex toys.<ref>''Williams v. Attorney General of Alabama'', 378 F.3d 1232 (11th Cir. 2004)</ref> Facing comparable facts, the [[United States Court of Appeals for the Fifth Circuit|Fifth 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 after ''Lawrence''".<ref>''Reliable Consultants, Inc., v. Earle'', 517 F.3d 738 (5th Cir. 2008)</ref>

====Bestiality====
Joanna Grossman wrote soon after the decision that ''Lawrence v. Texas'' should pose no serious obstacle to bestiality prosecutions, because such laws "plainly can be upheld on a 'cruelty to animals' justification."<ref>{{cite web|url= https://www.glapn.org/sodomylaws/lawrence/lweditorials041.htm
| title=GLAPN.org: The Consequences of Lawrence v. Texas}}</ref> Leighann Lassiter, animal cruelty policy director<ref>{{cite news |last1=Kevany |first1=Sophie |title=This Kansas Farm Is Making Headlines—for All the Wrong Reasons |url=https://sentientmedia.org/this-kansas-farm-is-making-headlines-for-all-the-wrong-reasons/ |access-date=27 June 2022 |work=Sentient Media |date=July 19, 2021}}</ref> for the [[Humane Society of the United States]], notes, however, the ''Lawrence'' ruling may create complications in several states that include human sexual conduct and bestiality in the same "anti-sodomy" statute.<ref>{{cite web|first=Eddie|last=Kim|url=https://melmagazine.com/what-activists-are-doing-to-fight-the-rampant-growth-of-bestiality-f1fb9b7985fd|title=What Activists Are Doing to Fight the Rampant Growth of Bestiality|website=MEL Magazine|date=June 4, 2018|access-date=September 30, 2018}}</ref> 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]]).<ref>{{cite web|first=Rebecca|last=Wisch|url=https://www.animallaw.info/topic/table-state-animal-sexual-assault-laws|title=Table of State Animal Sexual Assault Laws|website=Animal Legal & Historical Center|date=2017|access-date=September 30, 2018}}</ref>

==== Prostitution ====
In 2015, the Erotic Service Provider Legal Education & Research Project (ESPLERP) filed a lawsuit against [[George Gascón]], District Attorney for San Francisco, alleging that the state of California's anti-prostitution laws prevented relations between consenting adults in violation of ''Lawrence''. 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."<ref>{{Cite web |date=January 17, 2018 |title=UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OPINION |url=https://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/17/16-15927.pdf |access-date=March 2, 2025 |website=cdn.ca9.uscourts.gov}}</ref>

===Same-sex marriage bans===
A few months later, on November 18, 2003, the [[Massachusetts 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 Justice [[Margaret H. Marshall|Margaret Marshall]] quoted ''Lawrence'' in its second paragraph: "Our obligation is to define the liberty of all, not to mandate our own moral code."<ref>{{cite news |last1=Greenhouse |first1=Linda |author1-link=Linda Greenhouse |title=Supreme Court Paved Way for Marriage Ruling With Sodomy Law Decision |url=https://www.nytimes.com/2003/11/19/national/19RULI.html |url-access=subscription |access-date=April 14, 2024 |newspaper=[[The New York Times]] |date=November 19, 2003 |archive-url=https://web.archive.org/web/20160307063554/http://www.nytimes.com/2003/11/19/us/same-sex-marriage-context-supreme-court-paved-way-for-marriage-ruling-with.html |archive-date=March 7, 2016}}</ref>

Aside from Massachusetts, other state case law had been quite explicit in limiting the scope of ''Lawrence'' and upholding state bans on same-sex marriage regulations. (See ''Standhardt 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, Judge [[Vaughn Walker]] cited Scalia's dissent in his decision in ''[[Perry v. Schwarzenegger]]'' that found [[California Proposition 8 (2008)|California's Proposition 8]] banning same-sex marriage unconstitutional.<ref>''[[Perry v. Schwarzenegger]]'' Page 63 item 21 c [http://documents.nytimes.com/us-district-court-decision-perry-v-schwarzenegger#document/p63]</ref>

=== Same-sex adoptive parents ===
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."<ref>{{Cite web |last=Blokhina Gilkis |first=Krystyna |title=Lawrence v. Texas |url=https://www.law.cornell.edu/wex/lawrence_v._texas |access-date=2022-12-01 |website=Legal Information Institute (LII) www.law.cornell.edu |language=en}}</ref> The "obvious" meaning, as [[Nancy Polikoff|Nancy D. Polikoff]] wrote, was to point out that ''Lawrence'' could not be used to legalize "sex with children". Nonetheless, in 2004, the [[United States Court of Appeals for the Eleventh Circuit|11th Circuit Court of Appeals]] quoted this sentence when saying that ''Lawrence'' 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&nbsp;... Hence, we conclude that the ''Lawrence'' decision cannot be extrapolated to create a right to adopt for homosexual persons."<ref>{{Cite web |last=11th Circuit Court of Appeals |date=28 January 2004 |title=Lofton v. Secretary of Dept. of Children, 358 F.3d 804 |url=https://casetext.com/case/lofton-v-secretary-of-dept-of-children-family |archive-url=https://web.archive.org/web/20230220042753/https://casetext.com/case/lofton-v-secretary-of-dept-of-children-family |archive-date=20 February 2023 |access-date=18 August 2025 |via=casetext.com}}</ref><ref>{{Cite web |last=Polikoff |first=Nancy D. |author-link=Nancy Polikoff |date=20 May 2013 |title=Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles |url=https://www.uclalawreview.org/custody-rights-of-lesbian-and-gay-parents-redux-the-irrelevance-of-constitutional-principles/#note-4182-5 |access-date=1 December 2022 |website=UCLA Law Review |quote=358 F.3d 804 (11th Cir. 2004)}}</ref>

===United States military===
The [[United States Court of Appeals for the Armed Forces]], the last court of appeals for courts-martial before the Supreme Court, ruled that ''Lawrence'' applies to Article 125 of the [[Uniform 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.<ref>{{cite web|url=http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm |title=U. S. v. Marcum |publisher=[[United States Court of Appeals for the Armed Forces]] |access-date=May 2, 2010 |url-status=dead |archive-url=https://web.archive.org/web/20100407072727/http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm |archive-date=April 7, 2010 }}</ref><ref>{{cite web|url=http://www.armfor.uscourts.gov/opinions/2004Term/03-0433.htm |title=U. S. v. Stirewalt |publisher=[[United States Court of Appeals for the Armed Forces]] |access-date=May 2, 2010 |url-status=dead |archive-url=https://web.archive.org/web/20100525185749/http://www.armfor.uscourts.gov/opinions/2004Term/03-0433.htm |archive-date=May 25, 2010 }}</ref> Article 125 was repealed by the [[National Defense Authorization Act for Fiscal Year 2014]].

=== ''Dobbs v. Jackson Women's Health Organization'' ===
On June 24, 2022, the Supreme Court overturned ''[[Roe v. Wade]]'' (1973) in ''[[Dobbs v. Jackson Women's Health Organization]]'' and removed the federal protection of the right to abortion,<ref name="Sneed 2022">{{cite news|url=https://www.cnn.com/2022/06/24/politics/abortion-ruling-gay-rights-contraceptives/index.html|title=Supreme Court's decision on abortion could open the door to overturn same-sex marriage, contraception and other major rulings|first=Tierney|last=Sneed|date=June 24, 2022|access-date=June 24, 2022|publisher=CNN|archive-date=June 24, 2022|archive-url=https://web.archive.org/web/20220624174858/https://www.cnn.com/2022/06/24/politics/abortion-ruling-gay-rights-contraceptives/index.html|url-status=live}}</ref> on the grounds that the "[[right to privacy]]" does not extend to that of abortion on the criteria from ''[[Washington v. Glucksberg]]'' that a right must be "deeply rooted in the Nation's history",<ref>{{cite news|last=Blake|first=Aaron|title=The Supreme Court's draft opinion on overturning Roe v. Wade, annotated|url=https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/|access-date=June 28, 2022|newspaper=The Washington Post|date=May 3, 2022|archive-date=May 5, 2022|archive-url=https://web.archive.org/web/20220505130353/https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/|url-status=live}}</ref> and abortion was considered a crime, a view that some historians argued is incomplete.<ref name="Thomson-DeVeaux">{{cite web|last=Thomson-DeVeaux|first=Amelia|date=June 24, 2022|url=https://fivethirtyeight.com/features/the-supreme-courts-argument-for-overturning-roe-v-wade/|title=The Supreme Court's Argument For Overturning Roe v. Wade|website=FiveThirtyEight|access-date=June 26, 2022|archive-date=June 25, 2022|archive-url=https://web.archive.org/web/20220625144936/https://fivethirtyeight.com/features/the-supreme-courts-argument-for-overturning-roe-v-wade/|url-status=live}}</ref> In the majority opinion, Justice [[Samuel Alito]] responded to the dissent opinion's concerns, saying that the ruling would not affect other [[substantive due process]] cases.<ref>{{cite news|last=Blake|first=Aaron|title=The Supreme Court's draft opinion on overturning Roe v. Wade, annotated |url=https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/|access-date=June 28, 2022|newspaper=The Washington Post|date=May 3, 2022|archive-date=May 5, 2022|archive-url=https://web.archive.org/web/20220505130353/https://www.washingtonpost.com/politics/interactive/2022/dobbs-alito-draft-annotated/|url-status=live}}</ref><ref>{{cite news|url=https://www.nytimes.com/interactive/2022/06/24/us/politics/supreme-court-dobbs-jackson-analysis-roe-wade.html|title=The Dobbs v. Jackson Decision, Annotated|newspaper=The New York Times|date=June 24, 2022|access-date=June 27, 2022}}</ref><ref name="Thomson-DeVeaux"/> In his concurring opinion, Justice [[Clarence Thomas]], wrote, "In future cases, we should reconsider all of this Court's substantive due process precedents, including ''[[Griswold v. Connecticut|Griswold]]'', ''Lawrence'', and ''[[Obergefell v. Hodges|Obergefell]]''. 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 Justices [[Stephen Breyer]], [[Sonia Sotomayor]], and [[Elena Kagan]], which criticized the majority for rejecting ''[[stare decisis]]'' and overruling precedents dating back to ''Griswold'', 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."<ref name="Sneed 2022"/><ref>{{cite web|url=https://supreme.justia.com/cases/federal/us/597/19-1392/|title=Dobbs v. Jackson Women's Health Organization, 597 U. S. ____ (2022)|website=Justia|date=May 16, 2021|access-date=June 27, 2022}}</ref>

== Level of scrutiny applied in ''Lawrence'' ==
Justice Scalia and others{{who|date=February 2014}} have noted that the majority did not appear to apply the [[strict scrutiny]] standard of review that would be appropriate if the ''Lawrence'' 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".<ref>''Lawrence v. Texas'', 539 U.S. at 586.</ref>

Nan D. Hunter has argued that ''Lawrence'' 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.<ref>Hunter, Nan D. (2004). "Living with Lawrence". ''[[Minnesota Law Review]]''. 88:1104. This interpretation is more consistent with the open-ended balancing style that the more liberal justices have consistently advocated. ''San Antonio Indep. Sch. Dist. v. Rodriquez'', 411 U.S. 1, 98 (Marshall, J., dissenting) (showing "disagreement with the Court's rigidified approach to equal protection analysis").</ref> Justice Souter, for example, argued in ''[[Washington 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.<ref>''Washington v. Glucksberg'', 521 U.S. 702 (1997) (Souter, J., concurring).</ref> Justice Stevens had repeatedly criticized tiered scrutiny and preferred a more active judicial balancing test based on reasonability.<ref>''City of Cleburne v. Cleburne Living Ctr.'', 473 U.S. 432, 451 (1985) (Stevens, J., concurring): "I have never been persuaded that these so-called 'standards' adequately explain the decisional process."</ref>

Lower courts have read ''Lawrence'' differently on the question of scrutiny. In ''[[Lofton v. Secretary of the Department of Children and Family Services]]'', the [[United States Court of Appeals for the Eleventh Circuit]] upheld a state law barring adoption of children by homosexuals, holding explicitly that ''Lawrence'' did not apply strict scrutiny.<ref>{{Cite court |litigants = Lofton v. Secretary of the Department of Children & Family Services |vol = 358 |reporter = F.3d |opinion = 804 |pinpoint = |court = [[United States Court of Appeals for the Eleventh Circuit]] |date = 2004 |url= }}</ref> In ''[[Witt v. Department of the Air Force]]'', the [[United States Court of Appeals for the Ninth Circuit]] held that ''Lawrence'' applied [[intermediate scrutiny]].<ref>''Witt v. Department of the Air Force'', No. 06-35644.</ref>

== Plaintiffs ==
In 2000, Robert Eubanks was beaten to death in a case that was never solved.  Tyron Garner died of meningitis in 2006, aged 39.<ref>{{cite news |url=https://www.nytimes.com/2006/09/14/obituaries/14garner.html |archive-url=https://web.archive.org/web/20090424150649/https://www.nytimes.com/2006/09/14/obituaries/14garner.html |archive-date=2009-04-24 |title=Tyron Garner, 39, Plaintiff in Pivotal Sodomy Case, Dies |work=[[The New York Times]] |date=September 15, 2006}}</ref> John Lawrence died of complications from a heart ailment in 2011, aged 68.<ref>{{cite news|url=https://www.nytimes.com/2011/12/24/us/john-lawrence-plaintiff-in-lawrence-v-texas-dies-at-68.html |title=John Lawrence, Plaintiff in Gay Rights Case, Dies at 68 |work=[[The New York Times]]|date =December 23, 2011}}</ref>

== See also ==
* ''[[Obergefell v. Hodges]]''
* [[Sodomy laws in the United States]]
* [[LGBT rights in the United States]]
* [[List of sex-related court cases in the United States]]
* [[2003 in LGBT rights]]
* ''[[Dobbs v. Jackson]]''
* ''[[Baker v. Wade]]''
{{Portal bar|Law|LGBTQ|United States|Politics|Texas}}

== Notes and references==

===Notes===

{{notelist}}

===Citations===
{{Reflist|30em}}

===Works cited===
{{refbegin|35em}}
*{{cite book |title=Flagrant Conduct: The Story of Lawrence v. Texas |last=Carpenter |first=Dale |author-link=Dale Carpenter |year=2012 |publisher=W. W. Norton & Company |location=New York |isbn=978-0-393-06208-3 |pages=[https://archive.org/details/flagrantconducts0000carp/page/11 11–12] |oclc=761383909 |url=https://archive.org/details/flagrantconducts0000carp/page/11 }}
*{{cite book | first=Erwin | last=Chemerinsky | author-link=Erwin Chemerinsky | title=Constitutional Law: Principles and Policies | edition= 5th | location=New York | publisher=Wolters Kluwer | year=2015 | isbn=978-1-4548-4947-6 }}
* {{cite book | first1=John E. | last1=Nowak | first2=Ronald D. | last2=Rotunda |author-link2=Ronald Rotunda | title=Treatise on Constitutional Law: Substance and Procedure | year=2012 | location=Eagan, Minnesota | publisher=West Thomson/Reuters| edition= 5th | oclc = 798148265 }}
{{refend}}

== Further reading ==
* {{cite journal |last=Carpenter |first=Dale |year=2003 |title=The Unknown Past of ''Lawrence v. Texas'' |journal=Michigan Law Review |volume=102 |issue= 7|pages=1464–1527 |doi=10.2307/4141912 |publisher=The Michigan Law Review Association |jstor=4141912 |url=https://repository.law.umich.edu/context/mlr/article/1717/viewcontent/uc.pdf}}
* {{Cite web |last=Haider-Markel |first=Donald P. |title=Media Coverage of ''Lawrence v. Texas'': An Analysis of Content, Tone, and Frames in National and Local News Reporting |year=2003 |url=http://www.glaad.org/documents/csms/lvt_final.pdf |access-date=2008-06-22 |archive-url=https://web.archive.org/web/20080627020817/http://www.glaad.org/documents/csms/lvt_final.pdf |archive-date=2008-06-27 |url-status=dead }}
* {{cite magazine |title=Extreme Makeover: The Story Behind the Story of ''Lawrence v. Texas'' |last=Lithwick |first=Dahlia |author-link=Dahlia Lithwick |date=March 12, 2012 |magazine=[[The New Yorker]] |url=http://www.newyorker.com/arts/critics/books/2012/03/12/120312crbo_books_lithwick?google_editors_picks=true |access-date=July 15, 2012}} A lengthy review of Carpenter, ''Flagrant Conduct''.
* {{cite book |title=The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas |url=https://archive.org/details/sodomycasesbower00davi |url-access=registration |last=Richards |first=David A.J. |author-link=David A. J. Richards |year=2009 |publisher= University Press of Kansas }}
* {{cite journal |last=Tribe |first=Laurence H. |author-link=Laurence Tribe |year=2003 |title=''Lawrence v. Texas'': The Fundamental Right That Dare Not Speak Its Name |journal=[[Harvard Law Review]] |volume=117 |issue= 6|pages=1893–1955 |doi=10.2307/4093306 |publisher=The Harvard Law Review Association |jstor=4093306 }}
* {{cite book |title=I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases |last=Tushnet |first=Mark |author-link=Mark Tushnet |year=2008 |publisher=Beacon Press |location=Boston |isbn=978-0-8070-0036-6 |pages=211–220 }}
* [[Donald E. Wilkes Jr|Wilkes Jr., Donald E.]] (2003). [http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1051&context=fac_pm ''Lawrence v. Texas: An Historic Human Rights Victory''].

== External links ==
* {{wikisource-inline|Lawrence v. Texas|''Lawrence v. Texas''}}
* {{Caselaw source
 |case=''Lawrence v. Texas'', {{ussc|539|558|2003|el=no}}
 |cornell =https://www.law.cornell.edu/supct/html/02-102.ZS.html
 |courtlistener =https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
 |findlaw=https://caselaw.findlaw.com/us-supreme-court/539/558.html
 |googlescholar = https://scholar.google.com/scholar_case?case=15714610278411834284
 |justia=http://supreme.justia.com/us/539/558/case.html
 | loc =http://cdn.loc.gov/service/ll/usrep/usrep539/usrep539558/usrep539558.pdf
 |openjurist =http://openjurist.org/539/us/558
 |oyez =https://www.oyez.org/cases/2002/02-102
}}
* [https://ssrn.com/abstract=989955 The Invasion of Sexual Privacy]

=== Original case links ===
* [{{SCOTUS URL|oral_arguments/argument_transcripts/2002/02-102.pdf}} Official oral arguments (Transcript)]
* [https://www.oyez.org/oyez/resource/case/1542/opinion/transcript Reading of opinion (Transcript)]
* [http://audio.oyez.org/case/2000-2009/2002/2002_02_102/02-102_20030326-argument.mp3 Oral arguments (MP3 file)]{{Dead link|date=December 2024 |bot=InternetArchiveBot |fix-attempted=yes }}
* [http://audio.oyez.org/case/2000-2009/2002/2002_02_102/02-102_20030626-opinion.mp3 Reading of opinion (MP3 file)]{{Dead link|date=December 2024 |bot=InternetArchiveBot |fix-attempted=yes }}

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{{US14thAmendment|Due Process}}

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