Lawrence v. Texas: Privacy rights in a time of legal uncertainty

Under present United States law, the federal government and state governments are prohibited from enforcing sodomy laws, statutes which prohibit same-sex or other non-traditional forms of sexual intercourse. These protections are owed to the 2003 United States Supreme Court ruling in Lawrence v. Texas, which will be marking its 20th anniversary on June 26th, 2023.

In response to a reported weapons disturbance, police officers with the Harris County Police Department in Houston, Texas entered the residence of John Geddes Lawrence, the petitioner for which the case is named. Rather than finding weapons, the officers reported that Lawrence and another man, Tyron Garner, were engaging in a sexual act, for which the two were arrested and charged.

The state law in question (Tx. Penal Code § 21.06) holds that a person commits a misdemeanor “if he engages in deviate sexual intercourse with another individual of the same sex,” language which still exists in the Texas Penal Code despite the eventual outcome of the case. Similar laws in other states go beyond this, targeting opposite sex couples, including those who are married if they engage in anal or oral sex.

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The trial in Harris County Criminal Court would result in the two men being convicted and fined after unsuccessfully raising constitutional challenges to the law under the equal protection and due process clauses of the 14th Amendment, claiming they had a fundamental right to be free from unwarranted regulation of their private sexual conduct. These arguments would be further rejected by the Court of Appeals for the Texas 14th District. Following this loss, the case would be petitioned to the Supreme Court, where the latter constitutional argument found more fertile ground.

“The Supreme Court has never held, and they did not hold in Lawrence v. Texas, that we have a fundamental right to engage in same-sex sexual relations or intimate relations,” said Cindy Buys, a Professor at the SIU School of Law, “however, they did say in Lawrence v. Texas, that it is part of our liberty interests that are protected under the 14th Amendment’s due process clause.”

In accepting the petitioners’ due process clause argument, the Supreme Court expanded the “right to privacy,” a popular term describing the Supreme Court’s recognition of certain liberties as rights under the 14th Amendment’s due process clause and under the ninth Amendment, which states that rights not expressly described in the Constitution are not necessarily denied to exist. These rights include many personal choices beyond the choice of who to have intimate relations with. Several other prominent cases based in these principles were cited by Prof. Buys, notably Griswold v. Connecticut (use of contraceptives between married persons), Eisenstadt v. Baird (use of contraceptives by single people), Loving v. Virginia (racial restrictions on marriage) and Obergefell v. Hodges (same-sex/-gender restrictions on marriage).

One right formerly recognized under these principles was the choice of whether to terminate a pregnancy (with some limitations), as established by the Supreme Court rulings in Casey v. Planned Parenthood (1973) and in Roe v. Wade (1992). While these remained recognized law for many years, the Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturned this precedent and said that there is no federal constitutional right to terminate a pregnancy. As a result, there is uncertainty surrounding the future of other rights that have been recognized under the 14th Amendment’s due process clause.

“Some of the justices argue that their holding in Dobbs would not have implications for those other cases involving same-sex marriage or contraceptive rights,” Prof. Buys said. “Other justices like Justice Clarence Thomas argued that, in fact, all of substantive due process is wrong, that the court should not be finding other interests grounded in that liberty interest, that we should only be recognizing as fundamental rights those that are expressly in the Constitution, and that has certainly called into the question that Court’s jurisprudence in these other areas.”

If Justice Thomas’ view was applied to these other areas, many of these issues would likely face a return to state-by-state regulation, similar to recent trends in abortion access following the Dobbs decision, unless federal legislation is passed to establish them. With Lawrence specifically, a return to this method, though unlikely to occur, would potentially mark the return of more than a dozen sodomy laws that have yet to be removed by their respective states, including the exact Texas statute under which Lawrence and Garner were prosecuted in 1988.

(Editor’s note: Isaac Ludington is a law student at SIU, but his writing should not be seen as a reflection of the opinion of the School of Law, or taken as legal advice.)

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