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What Happens in Texas Doesn’t Stay in Texas
The government needs to stay out of everybody’s pants.
If I were to say “sodomy,” what’s the first thing that likely comes to mind after folks stop blushing or wondering what’s wrong with me?
Probably, gay men.
Fair enough, but the legal definition of sodomy in the United States includes much more than what’s implied by eggplant and peach emojis. If you’ve ever engaged in any kind of oral or anal sex, those cherry-picked Bible verses and protest signs are technically referring to you. Yes, even if you’re cisgender and heterosexual. Take all the time you need to come to terms with that (and maybe delete your browser history.)
Queer people have constantly been told to “keep it in the bedroom” when it comes to sexual intimacy. A couple of guys who did exactly that still got arrested for it in a swatting incident fueled by jealousy, homophobia, and racism. Lawrence v. Texas (2003) is best known for nationally legalizing “gay sex,” but its full scope is a landmark verdict about privacy, equal protection, and due process protections for people of all sexes and orientations.
It’d sure be a shame if anything ever happened to undermine it.
Robert Eubanks had a friend named John Lawrence and an ex-lover named Tyron Garner. On September 17, 1998, the three men were spending an evening together at Lawrence’s apartment in Houston, TX. Eubanks, who evidently hadn’t fully moved on from his breakup with Garner, became angry that Garner was flirting with Lawrence. Eubanks left the apartment after telling the other two men that he was going out to buy soda. What he really did was call the police to make a false claim that “a black male was going crazy in the apartment and he was armed with a gun.”
When officers arrived, Eubanks directed them to Lawrence’s unlocked second-floor apartment. All four responding officers gave different accounts about what happened next. Deputy Joseph Quinn claimed he entered Lawrence’s bedroom, turned on the light, saw Lawrence and Garner engaging in anal sex, and that they continued to do so for over a minute with police officers present in the room. Two other officers said they did not witness any form of sexual intercourse at all. Eubanks confessed at the scene that he lied about Garner having a gun.
Even so, Officer Quinn was not backing down. He called the Assistant District Attorney to ask if sodomy was still illegal if it took place inside a private residence. The ADA said yes, and Lawrence and Garner were arrested for “deviant sex” under Chapter 21, Section 21.06 of the Texas Penal Code, also known as the Homosexual Conduct Law. Lawrence was reportedly angry and uncooperative with police throughout the arrest and intake. Garner, already having the audacity to be both Black and gay at the same time, remained at least outwardly calm. Lawrence and Garner pleaded no contest to the charges and were both fined. Eubanks was later convicted of filing a false report and spent 15 days in jail.
The Supreme Court of the United States (SCOTUS) had ruled years earlier in Bowers v. Hardwick (1986) that “[t]he Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” State or local laws criminalizing consensual sodomy were not a Constitutional violation, even if the act occurred in the privacy of the home. In fact, a state could legally regulate or ban “any kind of private sexual conduct between consenting adults” according to the Bowers ruling. Put a pin in that last part; we’ll be coming back to it.
When Lawrence made its way to SCOTUS in 2003, the defense attorneys argued two things:
Texas’s “Homosexual Conduct Law” violated the Fourteenth Amendment’s Equal Protection Clause by criminalizing sexual intimacy by same-sex couples, but not identical behavior by different-sex couples; and
Criminal convictions for adults engaging in private, consensual sexual intimacy violate their vital interests in liberty and privacy protected under the Fourteenth Amendment’s Due Process Clause.
Those arguments worked, sort of. SCOTUS issued a 6-3 majority ruling to overturn Bowers by finding that the Defendants’ “right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government,” and that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” The Court chose the due process argument as the primary basis for its opinion because, as Justice Anthony Kennedy wrote for the majority, “[w]ere we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.” In other words, Justice Kennedy wanted to make clear that the majority Court did not wish to criminalize private, consensual sexual intimacy for people of any sex or orientation.
The Lawrence opinion also cited Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) as precedents for due process protections to include the right to privacy and unwarranted government intrusion. Griswold had overturned bans on the distribution, access, and use of contraceptives for married people, and Eisenstadt had extended that to unmarried individuals based on the Equal Protection Clause.
In reference to the Court’s decision to overturn the Bowers decision, Justice Kennedy explained:
“It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of Southeastern Pa. v. Casey (1992).”
Justice Sandra Day O’Connor had an interesting evolution of thought between the Bowers and Lawrence decisions. She had been in favor of the Bowers ruling at the time it was issued and did not support fully overturning it. However, she agreed in Lawrence that banning same-sex sodomy is unconstitutional. She differed from the majority opinion by basing her concurrence on Equal Protection grounds, stating that Texas' sodomy law “treats the same conduct differently based solely on the participants” by only criminalizing same-sex sodomy. Citing Romer v. Evans (1996) as precedent, Justice O’Connor pointed out the Court had previously ruled that laws singling out lesbian, gay, and bisexual people for disfavored legal status or general hardships were “something the Equal Protection Clause does not permit.”
Justice Clarence Thomas, on the other hand, continued the same pattern of dissent in Lawrence that he established in Casey and Romer and would later extend on to Obergefell v. Hodges (2015) and Pavan v. Smith (2017): he loathes the principle of substantive due process.
Since the 1930s, SCOTUS has applied this principle to help determine whether certain personal rights are logically derived from the Constitution and Bill of Rights. If so, those rights are fundamental and can be protected under the Due Process Clauses of the Fifth and Fourteenth Amendments. As an originalist, that whole notion makes Justice Thomas’s teeth itch. His unwavering belief is that for a right or liberty to be fundamental and therefore protected by due process, it must be specifically listed in the Constitution or Bill of Rights or, at the very least, “deeply rooted in this Nation's history and tradition.”
How personally committed is Justice Thomas to this line of thinking? His dissent in Obergefell also took aim at Loving v. Virginia (1967), which relied partly on a substantive due process ruling to overturn state-level bans on interracial marriage. Justice Thomas is a Black man married to a white woman, yet he still argued that the Constitutional Framers would not have included governmental recognition of marriage in their understanding of the right to liberty. He opposes the principle of substantive due process so strongly that, as he wrote in his concurrence in Dobbs v. Jackson Women's Health Organization (2022), “any substantive due process decision is demonstrably erroneous” and that future cases should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” as a matter of “duty to correct the error established in those precedents.”
Justice Thomas can’t single-handedly overturn any previously decided cases, but he can undermine their precedent value. By using his bully pulpit to cast doubt on the validity of those decisions, he can lay the groundwork for a future case to come along that might bring about more reversals of substantive due process rights. He also understands the power of networking, as he is rarely alone in his objections or his opinions. The late Chief Justice William Rehnquist dissented with him in Casey and Romer. The late Justice Byron White also joined him in Casey. The late Justice Antonin Scalia joined in Casey, Romer, Lawrence, and Obergefell. Justice Samuel Alito joined in Obergefell and Pavan.
In Dobbs, five other Justices agreed with Thomas that the Constitution did not confer a right to abortion, that the authority to regulate abortion belonged to individual states, and that both Roe v. Wade (1973) and Casey were wrongly decided and must be overturned. Justice Alito wrote the majority opinion, which Justice Amy Coney Barrett joined. Justices Brett Kavanaugh, John Roberts and Justice Thomas wrote concurrences, while Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor wrote an absolutely blistering joint dissent. Some legal analysts say that SCOTUS is more politically polarized now than at any other time in its history. With a lifetime appointment to a Court likely to remain majority conservative for the foreseeable future, Justice Thomas has plenty of time to keep talking sympathetic colleagues around to his line of thinking.
So, what does all that have to do with sodomy? One word: privacy.
Lawrence v. Texas was never really about anal sex. It was about literally keeping the government out of your bedroom. That becomes pretty difficult to do when a Supreme Court Justice says in his dissent that he “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” and can convince a majority of the nation’s highest court to agree with him.
Roe and Casey being overturned means that reproductive freedom and bodily autonomy are no longer considered Constitutional rights. The end of Griswold and Eisenstadt would put the right to birth control medications in the hands of state legislatures run by people who can’t find the clitoris on an anatomy diagram and think taking Plan B is tantamount to murder. Overturning Pavan would mean that same-sex couples no longer have a guaranteed right to put both their names on their children’s birth certificates. The fall of Obergefell would mean those kids would technically be born outside of legal wedlock in 13 states.
If substantive due process and equal protection rights continue to erode, that would leave us with a government small enough to fit inside a bedroom, a birth certificate or marriage license, a pill container, or a human uterus. That’s not just a “gay rights” concern. That’s an Everybody Problem.
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