The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Sodomy Laws in America, 1861-2003. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Katz, The Invention of Heterosexuality 10 1995 ; J. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. These references 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. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.
To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. One of the deputies, Joseph Quinn, alleged that Lawrence and Garner were engaged in anal sex in the bedroom, which was unlocked. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Post- Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. District Attorney Lewis Slaton chose not to prosecute the sodomy charge, considering that the warrant had expired, and his own belief that the sodomy law should not be used to prosecute consensual sexual activity.
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. Scalia suggested that this decision would lead to a slippery slope in which no form of sexual conduct, no matter how socially undesirable, could be constitutionally prohibited. . When our precedent has been thus weakened, criticism from other sources is of greater significance. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
This showed that the key factor in the decision was that the sexual acts happened inside a private residence, where the state and law enforcement had no right to dictate individual behavior in these deeply personal matters. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Justice wrote a dissent joined by , , and. California Army National Guard 124 F. The petitioners are entitled to respect for their private lives. The Supreme Court heard oral arguments in March 2003 and issued its decision on June 26. Hardwick, 1986 , to be controlling on the federal due process aspect of the case.
Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. East Cleveland, , 503 1977 plurality opinion ; Meyer v. Their historical premises are not without doubt and, at the very least, are overstated. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. 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. The case was decided under the Equal Protection Clause, id.
In Bowers, the Court held that this right did not extend to private, consensual sexual conduct, at least insofar as it involved homosexual sex. Connecticut 1965 , which allowed married couples to use birth control, and Eisenstadt v. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. 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. This case was overturned in 2003 in. The Court of Appeals for the Texas Fourteenth District considered the petitioners federal constitutional arguments under both the Equal Protection and Due Process Clauses of the. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533.
See Romer, supra, at 653. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. They challenged the statute as a violation of the Equal Protection Clause of the and of a like provision of the Texas Constitution. Hardwick, , controlling on that point. 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. 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.
Nebraska, 1923 ; but the most pertinent beginning point is our decision in Griswold v. Bowers then being authoritative, this was proper. Hardwick, 1986 , to be controlling on the federal due process aspect of the case. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. 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.
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. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The Court points to Griswold v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. The petitioners are entitled to respect for their private lives.