After the watershed case of Griswold v. Connecticut[c]Griswold v. Connecticut (1965), the Court emphasized that the due process clauses of the Fifth and Fourteenth Amendments protected a substantive right of generic liberty (or privacy), especially in intimate sexual relationships. The justices, however, often disagreed about the contours of this protection, and in Bowers v. Hardwick[c]Bowers v. Hardwick (1986), the Court held that Georgia’s criminalization of homosexual sodomy did not violate the Constitution. The majority of the justices accepted the theory that the due process clauses protected only those liberties that had been recognized in the history and traditions of the United States.

In 1998, a Texas police officer, responding to a report of a weapons disturbance, entered the private apartment of John Lawrence. The officer observed Lawrence and another man in an act that was forbidden by Texas’s antisodomy statute. The two men were found guilty and fined $125 each. The Texas Supreme Court upheld the judgment, based primarily on the Hardwick precedent.

When the case reached the U.S. Supreme Court, however, the justices, in a 5-1-3 decision, ruled that the Texas antisodomy law was unconstitutional. Speaking for five of the justices, Anthony M. KennedyKennedy, Anthony M.;Lawrence v. Texas directly overturned Hardwick and recognized the liberty of consenting adults to make decisions about intimate relationships within the privacy of their homes. He argued that the Court’s precedents since 1986 had expanded the scope of constitutional protection for liberty and that the decision of Romer v. Evans[c]Romer v. Evans (1996) had weakened Bowers as a precedent. Kennedy noted that only thirteen states retained antisodomy statutes, with only four of these states actively enforcing those laws. Observing that the Court in Bowers had referred to Western traditions, he wrote that most Western countries no longer provided criminal penalties for homosexual practices. His opinion included expansive rhetoric about the need to respect gays and lesbians.

Although Justice Sandra Day O’ConnorO’Connor, Sandra Day;Lawrence v. Texas did not join Kennedy’s opinion, she agreed that the law was unconstitutional. Her reasoning was that it violated the principle of equal protection because it punished only homosexual conduct, not heterosexual conduct. In a short dissent, Justice Clarence ThomasThomas, Clarence;on privacy rights[privacy rights] rejected the entire notion of a “general right of privacy.” Justice Antonin Scalia’sScalia, Antonin;on “homosexual agenda”[homosexual agenda] long dissent denounced the majority for supporting the “homosexual agenda.” He warned that the logic of the decision might have broad consequences, such as forcing states to recognize same-sex marriagesMarriage;same-sex[same sex] and requiring admission of openly gay persons into the military.

Equal protection clause

Fifth Amendment

Fourteenth Amendment

O’Connor, Sandra Day

Privacy, right to

Scalia, Antonin

Thomas, Clarence