In 1986, the Supreme Court upheld the anti-sodomy law of Georgia in a case called Bowers v. Hardwick, effectively ruling that anti-gay discrimination across the country was constitutional. But in 2003, after John Lawrence and Tyron Garner were arrested in Texas for having gay sex, the Supreme Court took up the issue once again.
Lawrence and Garner argued that the Texas law, which prohibited gay sexual acts but not similar acts performed by different sex couples, violated the Fourteenth Amendment. It was a violation of both the Equal Protection Clause and the Due Process Clause, they said. In opposition, the state of Texas argued that there was no constitutional right to gay sexual conduct, just as the Court had held in Bowers,.
But whether or not Bowers was correctly decided in the first place was also an issue before the Supreme Court. Would they decide to overrule it and recognize a constitutional right for all Americans to sexual autonomy? Indeed, and the Lawrence decision (along with a prescient dissent by Justice Antonin Scalia) would pave the way for future landmark gay rights cases.
Questions: Do the criminal convictions of John Lawrence and Tyron Garner 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 laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Answers: Undecided, yes, and yes.
- Anthony Kennedy (majority opinion)
- John Paul Stevens
- David Souter
- Ruth Bader Ginsburg
- Stephen Breyer
- Sandra Day O'Connor (w/ concurrence only in the judgment)
- Antonin Scalia (w/ opinion)
- William Rehnquist
- Clarence Thomas (w/ opinion)