Lawrence v. Texas
Kate Wiles
March 26, 2007
Sandra Day O’Connor
Stuart Country Day School
Rutgers Model Congress
BRIEF BIOGRAPHY
I, Sandra Day O’Connor, was born and raised in El Paso, Texas. I attended Stanford
University where I received my Bachelor of the Arts and encountered a truly inspirational
professor who encouraged me to attend Stanford Law School. I married John Jay O’Connor who
was a year below me in law school. Upon graduation I discovered how difficult it was for a
woman to enter into the competitive workforce, particularly in law. I served as Deputy County
Attorney in California from 1952 to 1953. My husband and I moved to Frankfurt, Germany
where I served as a civilian attorney from 1954 to 1957. Upon our return to the United States, I
practiced law in Maryvale, Arizona and served as the Assistant Attorney General of Arizona
while raising three boys. In 1969 I was elected to the State Senate where I served three
consecutive terms. From 1975 to 1981, I was a judge on the Maricopa County Superior Court and
then on the Appeals Court in Arizona. In 1981, I was nominated to the Supreme Court by
President Ronald Reagan.
PREVIOUS DECISIONS
I have made a name for myself as a Supreme Court Justice that holds great power in the
Court by often casting the swing vote. Despite what my critics may say, I believe that it is my
duty to judge each case according to the facts at hand and, as such, I do not consider myself
bound to past decisions that may appear similar. The most similar case to the one at hand is
Bowers v. Hardwick (1986). In Bowers v. Hardwick I concurred with the majority opinion that the
Georgia statute prohibiting sodomy was constitutional because the Due Process Clause does not
protect a right to engage in homosexual sodomy. In another similar case, Romer v. Evans, I
concluded, along with the majority, that the Equal Protection Clause of the Fourteenth
Amendment was violated when homosexuals were singled out as a class and discriminated
against. Nevertheless, Lawrence v. Texas is a different case with both aspects of the Constitution
being discussed. I have made a name for myself as a justice that takes each case’s facts and uses
those facts to render a decision. The past precedents of Bowers v. Hardwick and Romer v. Evans,
while they deserve some attention in reviewing Lawrence v. Texas, will not be the sole precedents
or factors that will influence my judgment of the facts at hand.
OPINION
On September 17, 1998, the Houston police entered the home of a man named John
Geddes Lawrence because they had been tipped off by a neighbor about a weapons disturbance.
Instead of finding weapons, the police burst in upon two men, John Geddes Lawrence and Tyron
Garner, engaging in sodomy. The men were arrested, jailed, and fined 200 dollars. The two men
are now unable to hold certain jobs and unable to hold certain privileges as well as having to
register as sex offenders in several states. The issue at hand, therefore, is whether or not Section
21.01 of the Texas Penal Code, which renders it illegal for individuals to engage in sodomy, is in
fact constitutional.1
Lawrence v. Texas raises not one but two issues regarding Constitutionally-based
liberties. The “Homosexual Conduct” law criminalizes same-sex intimate behavior but not
identical behavior by heterosexual couples, thereby making it questionable under the Fourteenth
Amendment’s right to equal protection of the laws. The second issue, also under the Fourteenth
Amendment, is whether or not Lawrence’s conviction for adult consensual sexual intimacy in the
home violates their right to liberty and privacy guaranteed under the Due Process Clause. In
Bowers v. Hardwick (1986) the Supreme Court decided that a Georgia Statue prohibiting sodomy
was valid because there was no “fundamental right to engage in sodomy.” In the majority
opinion, Justice Byron White wrote that to claim that a right to engage in sodomy “is deeply
rooted in this nation’s history and tradition…or implicit in the concept of ordered liberty is at best
facetious.”2
“Syllabus: Bowers v. Hardwick.” Law.cornell.edu. 31 March 1986. 27 March 2007. Online Available at:
<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html>.
2
Justice White. “Bowers v. Hardwick: Opinion of the Court.” Law.cornell.edu. 30 June 1986. 27 March
2007. Online Available at: <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO
.html>.
1
First I will turn my attention to the Due Process Clause of the Fourteenth Amendment as
it relates to the “Homosexual Conduct” law. As shown in Bowers v. Hardwick and Carey v.
Population Services Intl, the State is not prohibited from regulating private sexual conduct. Carey
v. Population Services Intl dealt with the right to distribute and sell contraceptives without a
prescription. The court found in favor of the contraceptive company stating that it had a First
Amendment right to advertise and sell contraceptives. Nevertheless, the court found in Carey v.
Population Services Intl, “Regulations imposing a burden on a [fundamental] decision…may be
justified only by compelling state interests, and must be narrowly drawn to express only those
interests.”3 In Bowers v. Hardwick (1986) the court found that an interest in promoting morality
and sanctifying the institution of marriage was a valid reason for a statute prohibiting sodomy.
Furthermore, the court found in Bowers v. Hardwick that the right to sodomy is not so
fundamental that it deserves to be recognized by the Supreme Court.4 In order to be fundamental,
the court found in Moore v. East Cleveland (1977) that the right must be “deeply rooted in this
Nation’s history and tradition.”5 These arguments were presented in Bowers v. Hardwick and still
apply to Lawrence v. Texas insomuch as the Due Process Clause of the Fourteenth Amendment is
concerned.
Under the Texas Penal Code Sec. 21.06, “A person commits an offense if he engages in
deviate sexual intercourse with another individual of the same sex.” This offense is also
considered “a class c misdemeanor,” and the offender can therefore not hold certain jobs nor be
afforded certain privileges.6 Although this “Homosexual Conduct Law” is justified under the Due
Process Clause of the Constitution, it does not hold up under the Equal Protection Clause of the
Justice Brennan. “Carey v. Population Services International: Opinion of the Court.” Laws.findlaw.com. 9
June 1977. 27 March 2007. Online Available at: <http://laws.findlaw.com/us/431/678.html>.
4
Justice White. “Bowers v. Hardwick: Opinion of the Court.” Law.cornell.edu. 30 June 1986. 27 March
2007. Online Available at: <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO
.html>.
5
Justice Powell. “Moore v. City of East Cleveland, Ohio.” <http://www.law.umkc.edu/faculty/projects/
ftrials/conlaw/moore.html>.
6
“Text of Texas Penal Code Sec. 21.06.” Bakers-legal-pages.com. 1999. March 27 2007. Available Online
at: <http://www.bakers-legal-pages.com/pc/2106.htm>.
3
Fourteenth Amendment. This law violates the Equal Protection Clause of the Constitution by
punishing homosexuals who commit sodomy and failing to do the same for its heterosexual
counterparts.
The Texas Law treats the same conduct differently according solely to the participants.
Such a law was proved to be unconstitutional in Department of Agriculture v. Moreno. In this
case, the Food Stamp Act of 1964 was found to be in violation of the Constitution due to the fact
that, according to the law, a “household” was not considered eligible for food stamps if the
“household” did not consist solely of related family members. This law clearly violated the Equal
Protection Clause of the Fourteenth Amendment, as found by the court, because,
In practical effect, [The Food Stamp Act] creates two classes of
persons for food stamp purposes: one class is composed of those
individuals who live in households all of whose members are
related to one another, and the other class consists of those
individuals who live in households containing one or more
members who are unrelated to the rest.7
Similarly, Lawrence v. Texas creates two classes of persons: one class is composed of
homosexuals, and the other is composed of heterosexuals. Homosexuals can be convicted, fined,
and even withheld certain privileges whereas heterosexuals face no punishment.
The Texas Penal Code classifies sodomy among homosexuals as a Class C criminal
offense. Those who are convicted are fined $500 and have certain privileges withheld. For
example, they are not allowed to hold certain jobs including jobs in areas such as medicine,
healthcare, and interior design. In addition, sodomy is one of the defining aspects of homosexuals
and if it is only considered illegal for homosexuals and not for their heterosexual counterparts,
then it invariably leads the populace to believe that being homosexual in and of itself is a criminal
offense. Since being a homosexual then implies criminality, the Texas Penal Code Section 21.06
is clearly unconstitutional due to its discriminatory nature.
Justice Brennan. “U.S. Department of Agriculture v. Moreno Opinion of the Court.” Laws.findlaw.com.
25 June 1973. 27 March 2007. Available Online at <http://laws.findlaw.com/us/413/52 8.html>.
7
Another Supreme Court case that has directly affected homosexuals is Romer v. Evans
(1995) in which the court found that Amendment 2 to the Colorado State Constitution precluding
any legislative, judicial, or executive action on behalf of homosexuals in the event of
discrimination directly violated the Fourteenth Amendment of the United States Constitution.
Amendment 2 specifically singled out homosexuals and bisexual persons, deliberately denying
them the right to protest discrimination and thereby singling them out as a group for no
“legitimate government interest.”8 The Texas Penal Code being discussed in this particular case is
very similar to Amendment 2 in that it separates the punishments of homosexuals versus
heterosexuals even if the conduct itself is the same. The only difference between the two is that
Amendment 2 referred to legislative, judicial, or executive action due to discrimination whereas
the Texas Penal Code refers to sodomy. Nevertheless, by looking at Romer v. Evans it becomes
clear that Section 21.06 of the Texas Penal Code does indeed violate the Equal Protection Clause
of the Fourteenth Amendment.
In conclusion, whereas the Texas Penal Code Section 21.06 is not in violation of the Due
Process Clause of the Fourteenth Amendment, it is in violation of the Equal Protection Clause
and as such is unconstitutional. As shown through Department of Agriculture v. Moreno and
Romer v. Evans, any law that discriminates against a particular group for no legitimate
government interest is unconstitutional. The ramifications of such a law, including the inability to
hold certain professions and the social prejudices that will undoubtedly arise, are clearly too great
and discriminatory to be considered constitutional. Thus, the Texas Penal Code Section 21.06
should be declared unconstitutional due to its violation of the Equal Protection Clause of the
Fourteenth Amendment.
The OYEZ Project. “Romer v. Evans, 517 U.S. 620 (1996).” Available Online at <http://www.oyez.org/
cases/1990-1999/1995/1995_94_1039/>.
8
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Justice Brennan. “Carey v. Population Services International: Opinion of the Court.”
Laws.findlaw.com. 9 June 1977. 27 March 2007. Online Available at:
<http://laws.findlaw.com/us/431/678.html>.
Justice Brennan. “U.S. Department of Agriculture v. Moreno Opinion of the Court.”
Laws.findlaw.com.
Justice Powell. “Moore v. City of East Cleveland, Ohio.” <http://www.law.umkc.edu
/faculty/projects/ ftrials/conlaw/moore.html>.
Justice White. “Bowers v. Hardwick: Opinion of the Court.” Law.cornell.edu. 30 June
1986. 27 March 2007. Online Available at: <http://www.law.cornell.edu/supct/html/hist
orics/USSC_CR_0478_0186_ZO .html>.
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Available Online at: <http://www.bakers-legal-pages.com/pc/2106.htm>.
The OYEZ Project. “Romer v. Evans, 517 U.S. 620 (1996).” Available Online at
<http://www.oyez.org/ cases/1990-1999/1995/1995_94_1039/>.
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Available at: <http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZS.html>.