Lawrence v. Texas

Decision Date26 June 2003
Docket NumberNo. 02-102.,02-102.
Citation539 U.S. 558
PartiesLAWRENCE et al. <I>v.</I> TEXAS
CourtU.S. Supreme Court

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, 478 U. S. 186, controlling on that point.

Held: 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. Pp. 564-579.

(a) 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 holding. The Bowers Court's initial substantive statement—"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . .," 478 U. S., at 190—discloses the Court's failure to appreciate the extent of the liberty at stake. 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 no 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. Pp. 564-567.

[539 U.S. 559]

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., 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. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. 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, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. 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. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 567-573.

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851—which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education—and Romer v. Evans, 517 U. S. 620, 624—which struck down class-based legislation directed at homosexuals—cast Bowers'

[539 U.S. 560]

holding into even more doubt. 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. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 573-577.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact that a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. 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. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 577-579.

41 S. W. 3d 349, reversed and remanded.

[539 U.S. 561]

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.


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.

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

[539 U.S. 562]

JUSTICE KENNEDY delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.


The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes...

To continue reading

Request your trial
1239 cases
  • Gold Diggers, LLC v. Town of Berlin, Conn.
    • United States
    • U.S. District Court — District of Connecticut
    • January 16, 2007
    ...of the Fourteenth Amendment and the First Amendment. Plaintiffs premise their due process challenge on Lawrence v. Texas, 539 U.S. 558, 579, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), in which the Supreme Court invalidated a state statute criminalizing consensual homosexual sex as a violation ......
  • State v. Katz
    • United States
    • Supreme Court of Indiana
    • January 18, 2022
    ...459, 131 S.Ct. 1207 ). And the Supreme Court has explained that sexual behavior is "the most private human conduct." Lawrence v. Texas , 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). We easily conclude that individuals have a substantial privacy interest in keeping intimate ima......
  • Elane Photography, LLC v. Willock
    • United States
    • Court of Appeals of New Mexico
    • May 31, 2012
    ...Legal Soc'y v. Martinez, ––– U.S. ––––, ––––, 130 S.Ct. 2971, 2990, 177 L.Ed.2d 838 (2010); see also Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invit......
  • Lockyer v. City and County of San Francisco, No. S122923
    • United States
    • United States State Supreme Court (California)
    • August 12, 2004
    ...decision. The San Francisco public officials have argued that the United States Supreme Court's decision in Lawrence v. Texas (2003) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508, holding unconstitutional a state law "making it a crime for two persons of the same sex to engage in certain in......
  • Request a trial to view additional results
3 firm's commentaries
  • Supreme Court Says Constitution Requires States To License Same-Sex Marriages
    • United States
    • Mondaq United States
    • July 3, 2015
    ...the evolution of gay rights legislation and court decisions. The Supreme Court's decisions show this evolution. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court held unconstitutional a state law criminalizing homosexual conduct. Subsequently, in United States v. Windsor, 570 U.S......
  • A Medical Condition Is A Medical Condition (and Could Be A Disability), Regardless Of Gender Identity
    • United States
    • Mondaq United States
    • August 29, 2022] criminals, thereby making it more difficult for [them] to be treated in the same manner as everyone else.'" Lawrence v. Texas, 539 U.S. 558, 581 (2003) (O'Connor, J., concurring in the The content of this article is intended to provide a general guide to the subject matter. Specialist a......
  • First Circuit Finds Section 3 Of DOMA Unconstitutional
    • United States
    • Mondaq United States
    • July 2, 2012
    ...insufficient. DOMA does not explain how denying benefits to same-sex couples would reinforce heterosexual marriage. In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court held that moral disapproval alone cannot justify legislation discriminating against homosexuals. Cost concerns rel......
254 books & journal articles
  • The Legal Status of Conversion Therapy
    • United States
    • Georgetown Journal of Gender and the Law No. XXII-1, October 2020
    • October 1, 2020
    ...that Masterpiece only con-cerns animus in adjudicative proceedings. A complete analysis of these cases or of175. 517 U.S. 620 (1996).176. 539 U.S. 558 (2003).177. 570 U.S. 744 (2013).178. 576 U.S. 644 (2015).179. Boy Scouts of Am., Inc. v. Dale, 530 U.S. 640, 661 (2000).180. 138 S. Ct. 1719......
  • No parent left behind: seeking equality for parents of U.S. citizens
    • United States
    • Georgetown Immigration Law Journal No. 36-2, January 2022
    • January 1, 2022
    ...and although this cage is made of gold, it’s still a prison”). 54. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty a......
  • Privacy issues in the workplace
    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part VI. Workplace torts
    • May 5, 2018 repeal Texas’s anti-sodomy statute, which was found unconstitutional by the United States Supreme Court in Lawrence v. Texas , 539 U.S. 558 (2003). H.B. 3215, Texas 79th Legislature, (Tex. 2005), WL 2005 TX H.B. 3215 (Westlaw). As recently as 1994, this statute had been held valid under ......
    • United States
    • Michigan Law Review Vol. 120 No. 2, November 2021
    • November 1, 2021
    ...Speak, in AUTHORITY REVISITED: NOMOS XXIX 152 (J. Roland Pennock & John W. Chapman eds., 1987). (125.) See infra Section III.A. (126.) 539 U.S. 558 (2003). (127.) See, e.g., Attitudes on Same-Sex Marriage, PEW RSCH. CTR. (May 14, 2019),
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT