Thursday, August 16, 2007

On Private Gay Rights: An Analysis of Lawrence v Texas

The Lawrence v Texas case invited much criticism and praise from all sectors of American society when the US Supreme Court overturned a previous case in favor of upholding the equal protection clause in affirming the rights of homosexual individuals to engage in sexual acts in the privacy of their own home. It was deemed a legal and moral victory by the lesbians, gays, bisexuals and transgender (LGBTs) communities who, in all fronts of law and politics, sought relentlessly to assert their rights and welfare. According to them, it signaled a rethinking of the American legal system of the role LGBTS play in the development of the community and American society in general. The Lawrence case was seen as repudiation of American conservatism and the perceived backwardness in thinking of many American institutions and social groups, especially in Texas, which saw homosexuality and homosexual acts as sinful and evil in absolute and even dogmatic Christian terms, without due regard to the changing socio-cultural, legal and economic relations of today. On the other hand, many actors in the American legal institutions criticized the decision intensely, not on moralist Christian terms, but on the way the decision was written, as it veered from the well-respected doctrine of stare decisis and bordered on another case of judicial activism/legislation where the Justices seemed to have incorporated their own understanding and objective biases on constitutional and statutory precepts which, in a textualist reading, are clearly not present in the text of the law nor in the constitution. Such allegations of judicial legislation, if true, are generally frowned upon by the American legal community and even political commentators as the judiciary takes it upon itself to tacitly invalidate a law when it should have exercised more discretion in upholding it, especially when a presumption exists that the judiciary must afford much leeway and respect for the actions of the legislature unless the law is found to be unfair, vague and arbitrary, among other tests of unconstitutionality and invalidity. In all of these, this paper seeks to investigate the profound effect of the Lawrence case on the relationship between morality and the law.

Prior to a discussion of the pertinent issues and the ratio desidendi that came to characterize this historic case, it is essential that a review of the basic facts be given. Quoting Justice Kennedy’s presentation of the facts –

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 Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. §21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows:

“(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

“(B) the penetration of the genitals or the anus of another person with an object.” §21.01(1).

The homosexual couple asserted that their conviction was an infringement of the Equal Protection and Due Process Clauses of the Fourteenth amendment, in which the lower courts denied their petitions until the petition for certiorari was granted by the US Supreme Court.

While there are many issues which the court resolved in this case, most pertinent to this paper is the sub-issue which asked: whether the majority may use the power of the State to enforce these views [of morality] on the whole society through operation of the criminal law. The majority opinion answered by quoting a previous decision, “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). For the longest time, the conduct of laws were defined by using moral precepts based on Judeo-Christian doctrines of morality which tended to obviate and set aside all other source of such morality as the basis of the law. The majority decision also presented statistical data that showed that many other states in the United States and even European countries already relaxed their laws against homosexual conduct, perhaps in apparent recognition of such statutes as affront to the preservation and development of the dignity of the human person as, quoting previous decision –

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Such homosexual acts in the privacy of a person’s home is subsumed in the concept stated above and their autonomy as persons to decide for themselves the concept of their own existence and meaning must be respected by the Court and the law. By affirming such, the court dismantles the previous Bower case which lent legitimacy in making protected conduct such as private homosexual acts criminal. Moreover, it is equally important to note that such overturning of a prior doctrine was based not on equal protection or due process principles and tests but on whether the Bowers case was valid or not, because it was important for the court to debunk the substantive validity of the Bowers decision to erase the legalized stigma of homosexuals which the Bowers decision created, especially when it continuance as a precedent destroys the human dignity even of homosexual persons.

On the other hand, Justice Scalia dissented not only on the basis of upholding the doctrine of stare decisis, but more substantively, asserting that –

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority`s belief that certain sexual behavior is `immoral and unacceptable` constitutes a rational basis for regulation xxx The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are `immoral and unacceptable,` xxx the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest.

Scalia opined that a legitimate state interest existed in protecting the state of Texas from evil which the majority of its people viewed as an affront to its traditions, customs and morals, which does not only include homosexual acts but even fornication, adult incest, bestiality, obscenity, among other things. These immoral acts stated above are sufficient basis in the assertion of the state of its prerogative to limit the rights of the people in pursuit of such state interest such as protecting public morals. By upholding the majority opinion and its discourse of the Court’s role in the protection of liberty, the Court has sealed the end of morals legislation in which no state may now impose its own definition of morality despite the objections of the majority in any given society. Such decision is tantamount to an encroachment by the Court of the concrete expression of the interests of a people in their representation and passage of laws in state legislatures.

In all of these, while it is essential for the state and federal legal systems to uphold a consistent standard of morality in defining its laws, a considerable leeway must be accorded to the Court in determining if such laws are incompatible to the protections granted by the constitution for its people. As the protections and rights are granted by the Constitution, strict discretion must be given more to the passage of laws in limiting liberties and other rights by the legislature rather than such restraint is passed on to the courts. In the ultimate analysis, the court must determine the issues on morality and law not simply on the basis of past traditions and customs, including pasts decisions and doctrines, but must take into account the changing conditions of American society in all its aspects. The best example for this has been the time-honored principles of ensuring the eradication of racial prejudice in all our statutes as part of American society’s repudiation of its history of slavery. However, it must be clear that at one point in our people’s history, such constitutional tests in determining unequal protection based on racial prejudice was non-existent, and even the courts affirmed the socio-economic relations that existed prior to the abolition of the slavery system.

Much has been learned on how the American legal system works especially in the system of appeals and petitions for certiorari, where aggrieved parties may continuously appeal from the lower circuit courts to the highest court of the land if questions of law were not fully answered and substantiated by the lower courts. As the lower courts denied the petitions of the couple, they got a favorable decision from the US Supreme Court which disposed not only the constitutional question but corollary issues which dictate not only the law between the parties but on future jurisprudence as well. On the other hand, the Supreme Court justices used precedents in arguing their decisions, notwithstanding employing the different tests in equal protection and due process. It showed that American jurisprudence is a goldmine of decisions which may contradict each other but resolved upon the determination of the present Court. All the justices had different analyses on the same texts, using forensic methods traditionally used in disposing cases such as stare decisis and novel methods such as the one employed by the majority decision, to the extent of being accused of judicial legislation. Nonetheless, as the US Supreme Court is the highest court of the land, criticisms aside, the American people and the legal commentators can do nothing else but respect the decision, in the hope that in future cases the Lawrence decision will be affirmed or overturned.

Works Cited:

1. Lawrence v. Texas (02-102) 539 U.S. 558 (2003)

2. Editorial Advisory Board (2003). Judicial activism. The Daily Record. August 18, 2003.

3. Editorial Advisory Board (2003). The Logic of Sex Laws. The Daily Record. August 18, 2003.

4. Geidner, Christopher (2003). Queer Eyes for the States' Rights Guy:
The Legal Issues Raised by the Proposed Federal Marriage Amendment to the Constitution. FindLaw’s Writ. Retrieved March 24, 2007 from

5. Byfield, Ted (2006). The Folly Of Divorcing Religion From Politics (The Law IS based On Morality, Stupid Alert). World Internet Daily. Retrieved March 24, 2007 from

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