Lawrence and Garner v. Texas: Sodomy Law, Equality and Privacy

Introduction

On June 26th, 2003, in a landmark ruling for lesbian and gay Americans’ civil rights, the U.S. Supreme Court struck down Texas's "Homosexual Conduct" law, which criminalized oral and anal sex by consenting same-sex couples and was used widely to justify discrimination against LGBT people.

John Lawrence and Tyron Garner were arrested in Lawrence's Houston home and jailed overnight after officers responding to a false report from an acquaintance found the men engaged in private, consensual sex. Once convicted, they were forced to pay fines and were considered sex offenders in several states. After repeated appeals, their case was heard by the Supreme Court.

Two constitutional issues were argued in the case of Lawrence and Garner v. Texas - whether Texas law violated the Constitution’s right to privacy, and also whether it violated the Constitution’s guarantee that all Americans will be treated equally under the law. The ruling focused on the first argument, and effectively struck down all 13 state sodomy laws as they apply to private, consensual intimacy and also established, for the first time, that LGBT people have fundamental privacy rights.

The decision overturned the Supreme Court’s devastating 1986 ruling in Bowers v. Hardwick. In that decision - which was laced with anti-gay language and had been used against LGBT people in most civil rights cases since -- the court upheld Georgia’s sodomy law in a case brought by a man who was arrested while having consensual sex in his home with another man.

Although the Lawrence decision is no doubt a cause for celebration for LGBT people, their allies, and advocates of equality everywhere, it’s hard to forget that "Protection of Marriage Week" was unveiled shortly thereafter. The juxtaposition of these events- a decision that flatly says that the State has no place in the bedrooms of consenting adults, and a government-sponsored, weeklong ad campaign aimed at turning the public tide against gay marriage- showcases the tug of war between governmental policing of public morality and protection of individual freedoms.

This lesson plan allows students to examine these opposing forces and how they played out in the Lawrence case, as well as in the students’ own perceptions of LGBT people and their rights.

Objectives: To deepen students’ understanding of the Constitutional issues that drove Lawrence and Garner v. Texas, and of how cases are decided. · To encourage thoughtful dialogue about the State’s role in our private lives, and on the impact of the Lawrence decision on the lives of LGBT people. · To increase students’ awareness of the ways in which shifts in values and popular culture, as well as party politics, influence changes in law.

Age level: High school

Subject Area: Social Studies

Time: Two class periods

Part One (10 minutes)

Tell students that you will be studying a Supreme Court case that has an important impact on the government’s power to intervene in some activities done in the privacy of a home. Ask them to brainstorm a list of activities within the home that they feel the government has no right to intervene in, and activities in which you think it may have some authority. Compile lists on the board, and ask everyone to give feedback. How far should the government be able to go in regulating citizen’s private lives?

Let students know that the case you will be studying has to do with sodomy law. You might want to define this term as laws that criminalize some non-procreative sexual behaviors between consenting adults (specifically oral and anal sex), and which, in some cases, criminalize these behaviors between same-sex couples only.

Part Two (20 minutes)

Distribute copies of Handout I, which gives background on sodomy law, the challenge posed to it by Bowers v. Hardwick, and the basics of the Lawrence case. Ask students to read it, either aloud or silently, and follow up with a brief discussion. Some questions you might want to ask are:

· Why were sodomy laws instituted? Are they still relevant in a society where sexual mores have changed dramatically? · Should sexual behavior be regulated by the government? If so, which behaviors and why? · What does "equal treatment under the law" mean? Should everybody have it? · Was the decision reached in the Bowers and/or Lawrence case fair? What was its impact on the lives of LGBT people? · Is it possible that the Bowers and/or Lawrence decision was influenced by certain values held by the Justices, or by public opinion? · Should a judge’s personal values influence the way in which they interpret the Constitution? Is it possible to not let our personal beliefs influence the way we look at the world? · Do changes in our society affect changes in law? Can you think of some examples? · What changes in our society might have influenced the Lawrence decision?

Part Three (15 minutes)

Distribute copies of Handout II. Let the students know that in the next class period, they will be acting as Justices and deciding the case. To do so, they will be answering the questions posed in the first box, which you can ask a student to read aloud. Ask a student to read the information in the second box. Emphasize that their goal, as Justices, should be to examine the excerpts given from the Constitution, and come to a decision based the rights granted or denied by it. Point out that although it is a judge’s job to remain as impartial as possible, social changes have and will continue to make changes in law. (You might want to briefly discuss changes in law as a result of the civil rights movement, and compare and contrast them with changes in law since September 11th.) Ask the class to brainstorm some issues, beliefs, or cultural changes that might have influenced the Justices’ decisions for or against striking down sodomy laws, and chart them on the board. Encourage students to list the beliefs, issues, and cultural changes that they feel have influenced their own feelings on the case in the space provided in box three. Some factors to consider:

· Same-sex marriage has been legalized in Canada. · LGBT people are becoming more visible and accepted in our society and in popular culture. · Sodomy laws have affected people in other cases by branding the sexual activities of same-sex couples (and thereby most LGBT people) as criminal. Some examples include a woman who was denied a government job for being a lesbian, a judge whose reappointment was challenged due to her sexuality, and a male couple who lost custody of their children.

Encourage students to think over the day’s discussion and the information on Handout II before the class meets again.

Part Four (30 minutes)

Divide the class into groups of five or seven distribute one copy of Handout III and one of Handout IV to each group. Ask the students to use the facts of the case and the Constitutional arguments to reach a decision. The decision need not be unanimous, but each group should spend a few minutes discussing and debating their various viewpoints, how they are supported by the Constitution, and which social issues and personal beliefs play a part in influencing their decisions. Like Supreme Court Justices, they will then write an opinion of the court, detailing the majority decision of their group by answering the questions on Handout III. If a member or members of the group disagree with the majority decision, they should write their dissent on Handout IV. One member of each group should "deliver" the opinion, and another the dissent to the class. Leave time between the presentations of each group for students to give feedback or ask questions. Be sure to examine the constitutionality of each decision.

Part Five (15 minutes)

Distribute copies of Handouts V and VI, which provide excerpts of the opinion and dissent given on the Lawrence case by the Supreme Court. Ask for volunteers to read them aloud. Some questions to follow up with might be:

· Why do you think the case was decided on the basis of privacy and not equality under the law? · How does Justice Kennedy’s opinion reflect the changes of our society? · What are J. Kennedy’s feelings about the framers of the Constitution and their wisdom in leaving the Due Process clause open to some interpretation? · What are some of the concerns of Justice Scalia in his dissent? · Six Supreme Court Justices decided in favor of overruling the Bowers decision, while three dissented. That means only two votes could have changed the outcome of the case. How do students feel about this process?

Handout I Background on Sodomy Law

Introduction

Many Americans feel that what you do in the privacy of their own homes is your business. As the old saying goes, "Your home is your castle," they argue: One should be free to do as one wishes there, as long as what one is doing hurts no one else. However, there is another train of thought in American history as well. Dating back to colonial times, governments have made laws that restrict what people can do in their homes, particularly with regard to sexual activity. A whole body of laws, called "sodomy laws," were instituted in colonial times, threatening individuals with penalties ranging up to death for engaging in certain sexual activities with other consenting adults. As recently as 1960, every state had an anti-sodomy law. These laws were often used to discriminate against same-sex couples for their sexual behavior, and some sodomy laws prohibited behaviors only between same-sex couples, while not criminalizing the same behaviors between heterosexuals.1

Challenging the Laws

In the early 1980's, lesbian, gay, bisexual and transgender (LGBT) activists decided to challenge these laws in court, arguing that they violated the "right of privacy" to which citizens are entitled to according to the Constitution. One of the most significant of all challenges to sodomy laws is Bowers v. Hardwick. Acting on an incorrect warrant for an unrelated minor offense, police officers entered the home of Michael Hardwick, an Atlanta bartender. They found Hardwick in his bedroom, engaged in sex with his partner. The men were arrested on the charge of sodomy, and spent twelve hours in jail. The charges were later dropped, but Hardwick brought the case forward with the purpose of having the sodomy law declared unconstitutional. Activists hoped that the case would put an end to sodomy laws in the United States when it reached the Supreme Court in 1986, but the 5-4 decision found that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." This decision had far-reaching effects in schools, where it has been used to support legislation for abstinence-only sex education, and policies that restrict any LGBT-positive school instruction. Seventeen years later, sodomy laws were challenged once more.

The Case

The Texas case, Lawrence and Garner v. Texas, began on September 17, 1998, when sheriff's deputies, responding to a false report of an armed intruder, entered John Lawrence's apartment. The deputies found no intruder or weapon, but did find Lawrence and Tyron Garner having sex. Both were arrested for sodomy and jailed overnight. Lawrence and Garner were convicted under the Homosexual Conduct law, but exercised their right to a new trial before a Texas Criminal Court. They asked the Criminal Court to dismiss the charges against them on Fourteenth Amendment Protection grounds, claiming that the law was not constitutional since it prohibits some sexual behaviors between same-sex couples, but not between heterosexual couples. Texas earlier had a sodomy law that applied to everyone, but decriminalized such activities by different-sex partners in 1974. They also filed on right to privacy grounds, known as "due process", claiming the State had no right to punish consensual adult sex in a private residence. The Texas state courts upheld the convictions, allowing the law to stand based on Texas' desire to enforce moral standards, and the men were fined. They appealed the case, and the original decision was upheld. Another appeal was filed, and by 2002, the case had made its way to the Supreme Court. On June 26, 2002, the decision was reached. The U.S. Supreme Court struck down Texas's Homosexual Conduct law, which criminalizes oral and anal sex by consenting same-sex couples, overturning the Bowers decision, and invalidating sodomy laws throughout the nation and Puerto Rico.2

Handout II Constitutional Questions

The questions before the court were:

· Do Lawrence and Garner’s 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?

· Do Lawrence and Garner’s convictions for adult consensual sexual intimacy in the home violate the liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

· Should Bowers v. Hardwick be overruled?

Two arguments were against the constitutionality of the Homosexual Conduct law. Both arguments were based on the Fourteenth Amendment, which states:

"No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The "due process" argument contends that the men have been deprived of their right to liberty- that is, their right to express themselves without fear that the State could infringe on their privacy- by being charged with a crime for engaging in adult, consensual sex in Garner’s home. This argument for privacy, also known as "substantive due process", has been successful in securing the right for sex with contraception (non-procreative sex, but not sodomy) between heterosexual people.

The "equal protection" argument contends that the law is unconstitutional since it prohibits sodomy between same-sex couples, but not between heterosexual couples. Although the main goal of the clause was to make sure that ex-slaves were treated equally after the Civil War, it has been interpreted as a general limitation on the government’s power to impose classifications, not just those based on race, but also those based on sex, wealth, lineage, and other characteristics.

Some beliefs, issues, or cultural changes that have influenced my feelings about the Lawrence case are:

Handout III Opinion of the Court

The opinion of the Court, delivered by _____________, and supported by

________________.

Do Lawrence and Garner’s 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?

Do Lawrence and Garner’s convictions for adult consensual sexual intimacy in the home violate the liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

Should Bowers v. Hardwick be overruled? Why or why not?

Handout IV Dissenting Opinion

The dissent, delivered by _____________, and supported by

_____________.

Do Lawrence and Garner’s 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?

Do Lawrence and Garner’s convictions for adult consensual sexual intimacy in the home violate the liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

Should Bowers v. Hardwick be overruled?

Handout V Opinion of the Court, Delivered by Justice Kennedy

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 more transcendent dimensions.

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 to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do 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.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons to make this choice.

The petitioners are entitles 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.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principals in their own search for greater freedom.

Handout VI Justice Scalia, Dissenting

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining states that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else- What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand new "constitutional right" by a court that is impatient of democratic change... It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution,"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.