LAWRENCE et al.

v TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT

Kennedy, J.

FACTS:

- 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, charged and convicted in violation of Texas Statute - “A
person commits an offense if he engages in deviate sexual intercourse with
another individual of the same sex.”
- Petitioners were adult at the time of the alleged offense; conduct was in private
and consensual
- Complaints described their crime as: “deviate sexual intercourse with member of
same sex”
- Petitioners exercised right to a trial de novo, challenging the statute as a violation
of the Equal Protection Clause of the Fourteenth Amendment; contentions were
however rejected; petitioners were each fined $200 plus court costs.
- State Court of Appeals held that statute was not unconstitutional under the Due
Process Clause of the Fourteenth Amendment considering Bowers v. Hardwick;
constitutional arguments still rejected and convictions affirmed.
- Supreme Court reversed the judgment of the Court of Appeals for the Texas
Fourteenth District; case remanded for further proceedings.

ISSUE:
- Whether or not the Texas statute, making it a crime for two persons of the same
sex to engage in certain intimate sexual conduct, is valid; or whether or not it
violates the Due Process Clause

HELD:
- The Texas statue making it a crime for two persons of the same sex to engage in
certain intimate sexual conduct violates the Due Process Clause; unconstitutional

RATIONALE:
- Liberty under the Due Process Clause –Liberty protects the person from
unwarranted government intrusions into a dwelling or other private places. It
presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct.
- Petitioners were free as adults to engage in the private conduct in the exercise of
their liberty under the Due Process Clause of the Fourteenth Amendment of the
Constitution. Liberty of the constitution allows homosexual persons the right to
make this choice.
- With respect to the issue presented whether the Constitution confers a
fundamental right upon homosexuals to engage in sodomy, early American laws
were not directed at homosexuals as such but instead sought to prohibit
 nonprocreative sexual activity more generally. This does not suggest approval of
homosexual conduct. It does tend to show that this particular form of conduct
was not thought of as a separate category from like conduct between heterosexual
persons.
- Certain deficiencies found as regards Bowers v Hardwick. Historical grounds
relied upon are overstated.
- Pattern of nonenforcement with respect to consenting adults acting in private.
- Equal Protection Clause
o When homosexual conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons
to discrimination both in the public and private spheres.
- Texas statute furthers no legitimate State interest which can justify its intrusion
into the individual’s personal and private life.
o Consistent with a general condemnation of nonprocreative sex as it is with
an established tradition of prosecuting acts because of their homosexual
character

Concurring opinion
Justice O’Connor
- Agrees with the Court that Texas’ sodomy law banning “deviate sexual
intercourse” between consenting adults of the same sex, but not between
consenting adults of different sexes is unconstitutional; based conclusion of the
Fourteenth Amendment’s Equal Protection clause – “all persons similarly situated
should be treated alike.”

Dissenting opinion
Justice Scalia
- Texas’s prohibition of sodomy does not infringe a “fundamental right” (which the
Court does not dispute). Fundamental rights, as defined, are those deeply rooted
in this Nation’s history and tradition.
o Bowers held, homosexual sodomy do not implicate a fundamental right
under the Due Process Clause.
o Court failed to establish that the right to homosexual sodomy is “deeply
rooted in this Nation’s history and tradition.” On the contrary, Sodomy
was a criminal offense at common law and was forbidden by the laws of
the original 13 States when the ratified the Bill of Rights.
- Texas’s prohibition of sodomy is unsupported by a rational relation to what the
Constitution considers a legitimate state interest.
o Due Process Clause prohibits states from infringing fundamental liberty
interest unless infringement is narrowly tailored to serve a compelling
state interest.
- Texas’s prohibition of sodomy does not deny equal protection of the laws.

*Justice Thomas, joins Justice Scalia’s dissenting opinion.