DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
and the Right to Privacy:
Privacy Interests in
Texas v. Lawrence
Lisa Wallmeyer, Staff
The United States
Supreme Court recently held unconstitutional a Texas statute criminalizing
"deviant sexual intercourse with another individual of the same sex"1
(Lawrence v. Texas, No. 02-102, 2003 U.S. Lexis 5013, decided June
26, 2003). The holding directly affects the constitutionality of Virginia's
statute prohibiting crimes against nature at § 18.2-361 of the Code
of Virginia. Because the Court seemingly broadened the right to privacy
protected by the Due Process Clause of the Fourteenth Amendment, the holding
also potentially calls into question the constitutionality of Virginia
statutes criminalizing certain other intimate sexual acts between consenting
The Right to Privacy Prior
The Court has recognized
certain rights that, while not explicitly mentioned in the United States
Constitution or its amendments, are so fundamental to individual liberty
in society they deserve constitutional protection. This notion has become
known as "substantive due process." One such right is the right
to privacy, which the Court found to be implicit in the liberty interest
of the Due Process Clause of the Fourteenth Amendment.2 Generally,
to pass constitutional muster, a law that purports to abridge a fundamental
right, such as privacy, must be narrowly tailored to promote a compelling
state interest-requiring that a court assess the law's constitutionality
via strict scrutiny or by a heightened standard of review. Conversely,
when a court examines the constitutionality of a law that does not purport
to abridge a fundamental right, such as a tax law, the Court will give
great deference to the lawmakers and uphold the law if it bears a rational
basis to a legitimate government interest. This rational review threshold
is very low, and most laws reviewed under this standard are upheld.
Through an evolving
series of opinions over the past 40 years gradually expanding the right
to privacy, the Court has come to recognize that the Constitution protects
personal decisions relating to marriage, procreation, contraception and
family relationships, among other rights.3 The Court stated
that "[t]hese matters, involving the most intimate and personal choices
a person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment."4
The right of privacy has developed to encompass the autonomy of individuals
in personal choices, such as whether or not to use contraception or seek
an abortion, whether in married relationships or not.
The Bowers v. Hardwick
Also relevant to
a discussion of fundamental rights is the Courts' holding in the 1986
Bowers case, which presented facts similar to Lawrence.
In Bowers, the respondent challenged a Georgia statute criminalizing
sodomy, whether between same-sex or different-sex adults.5
The respondent asserted that as a practicing homosexual, the statute placed
him in imminent danger of arrest. A federal district court dismissed the
case for failure to state a claim, but a divided Court of Appeals for
the Eleventh Circuit reversed, finding that the statute violated the respondent's
fundamental rights because "homosexual activity is a private and
intimate association that is beyond the reach of state regulation by reason
of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment."6
The issue thus presented to the Supreme Court in Bowers was whether
the federal Constitution conferred a fundamental right upon homosexuals
to engage in sodomy. The Court held that there was no such fundamental
In reaching its decision,
the Bowers Court acknowledged the line of cases conferring a right
to privacy in family relationships, procreation, marriage, and abortion.
The Court found no connection between these rights and homosexual activity.
In order to announce a right not explicit in the Constitution's text,
the Court reasoned that the nature of such right must be implicit in a
concept of ordered liberty and deeply rooted in the nation's history and
tradition. The Court held that these guiding principals did not encompass
a fundamental right for homosexuals to engage in consensual sodomy, and
the Court cautioned against taking an expansive view of its authority
to discover new fundamental rights imbedded in the Due Process Clause.8
As an alternative to the fundamental right claim, the respondent had also
argued that even if no fundamental right existed, the law still lacked
a rational basis and could not be upheld. The Court also rejected this
argument, opining that the law "is constantly based on notions of
morality" and held that majority sentiments about the morality of
homosexuality provide a rational basis for such a law.9
The facts of the
Lawrence case, outlined in the next section, directly challenged
the holding in Bowers, and the Court took the opportunity to reconsider
the right to privacy in the context of laws criminalizing sodomy.
Lawrence v. Texas:
In Houston, police
were dispatched to a private residence in response to a reported weapons
disturbance. Upon entering the apartment, the police observed the petitioners
engaged in a sexual act. The petitioners were arrested, and subsequently
convicted before a Justice of the Peace for violating § 21.06 of
the Texas Penal Code, which provides that "a person commits an offense
if he engages in deviate sexual intercourse with another individual of
the same sex." The Code defines "deviate sexual intercourse"
as: "(A) any contact between any part of the genitals of one person
and the mouth or anus of another person; or (B) the penetration of the
genitals or the anus of another person with an object."10
The petitioners exercised their right to a trial de novo in Harris
County Criminal Court, where they entered a plea of nolo contendere.
They then appealed the case to the Court of Appeals for the Texas Fourteenth
District, claiming that the statute violated both the Equal Protection
and the Due Process Clauses of the Fourteenth Amendment of the federal
constitution.11 The Court of Appeals rejected the petitioners'
arguments, relying on the Court's earlier holding in Bowers that
no fundamental right to sodomy existed and that majority sentiments about
the morality of homosexuality provided a rational basis for the law.12
The Supreme Court
granted certiorari to consider three questions: whether the convictions
under the Texas law, which criminalize sexual intimacy by same-sex couples,
but not identical behavior by different-sex couples, violates the Fourteenth
Amendment guarantee of equal protection of laws; whether the convictions
for adult consensual sexual intimacy in the home violate vital interests
in liberty and privacy protected by the Due Process Clause of the Fourteenth
Amendment; and whether Bowers should be overruled.13
The Lawrence Decision
With a 6-3 vote,
the Court found the Texas statute unconstitutional. However, only 5 justices
joined the majority opinion, which held that the statute violated the
interests of liberty and privacy protected by the Due Process Clause,
and in the process overruled Bowers. Justice O'Connor concurred
in the result, but did so relying on narrower equal protection grounds.
Much of Justice Kennedy's
majority opinion analyzed the Court's holding in Bowers and found
grounds for overruling it. The Court held erroneous the statement of the
issue by the Bowers Court. Instead of asking whether the federal
Constitution affords a fundamental right to engage in sodomy, the Court
should have looked at the larger liberty interest at stake. The broader
and more appropriate question, according to the Court, is whether consensual
adult sexual intimacy in the home is protected by the vital interests
in liberty and privacy of the Due Process Clause.14 Such intimate
conduct may include, but would not be limited to, consensual sodomy between
homosexuals. In ex-pressly overruling Bowers, the Court held that
Justice Stevens' dissent in Bowers should have been controlling
when he wrote that "[t]he fact that the governing majority in a State
has traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting this practice
decisions by married persons, concerning the intimacies of their physical
relationship, even when not intended to produce offspring, are a form
of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment.
Moreover, this protection extends to intimate choices by unmarried as
well as married persons."15
By broadening the
focus from the right to sodomy to the right to privacy, referred to as
"the liberty of persons" throughout most of the opinion, the
Court spent little time focusing on the Texas statute at issue and instead
examined the scope of the right to privacy. The Court opined that liberty
presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct, and that liberty of the person
involves both spatial and more transcendent dimensions. The Court further
opined that a state or court should not attempt to set boundaries on relationships
between consenting adults in the confines of the home absent injury to
a person or abuse of an in-stitution that the law protects.16
In applying this
reading of the liberty interest to the Texas statute specifically, the
Court held that the Texas statute "furthers no legitimate state interest
which can justify its intrusion into the personal and private life of
the individual." The Court distinguished the holding here from instances
that may involve minors, persons who might be injured or coerced, public
conduct, prostitution, or whether the government must give formal recognition
to any relationship that homosexual persons seek to enter.17
concurring in judgment but not with the majority's reasoning, would have
decided the case on much narrower equal protection grounds. She distinguished
the instant case from Bowers, which involved a statute that prohibited
same-sex as well as different-sex sodomy. She found that moral disapproval
of homosexuals was not a legitimate state interest to justify a statute
that bans homosexual but not heterosexual sodomy. She did not find it
necessary to address the broader issue adopted by the majority of the
Court as to whether a sodomy law neutral in effect and application would
violate the substantive component of the Due Process Clause.18
In a dissenting opinion,
Justice Scalia takes issue with the Court's willingness to overrule Bowers.
Among other challenges to the majority's holding, Scalia warned that the
ruling opens doors for challenges against laws prohibiting bigamy, same-sex
marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity. Scalia would have held that because there is
no fundamental right to sodomy, as established by Bowers, the Texas
law bears a rational relation to the legitimate state interest of protecting
morality, on either due process or equal protection grounds.19
Justice Thomas, filing the other dissenting opinion, opined that the Court
took too active a role in carving out a specific right to privacy and
usurped the role of the legislature in invalidating the Texas statute.20
Liberty and Privacy Post-Lawrence
The Court decided
the case on much broader and far-reaching grounds than the facts required.
The Court could have solely addressed the issue of whether the Texas law,
which only prohibited sodomy between same-sex couples, violated the guarantee
of equal protection of the laws. This would not have required the Court
to re-examine Bowers, nor would it have required the court to re-examine
the scope of the right to privacy under the Due Process Clause. However,
the majority chose to forgo the narrow approach and to address not only
the facts of the case before it, but also the reach of the right to privacy
as it applies to intimate conduct generally. If the case had been decided
on equal protection grounds, the holding would have left open for debate
whether the same statute, drafted so as to apply to same-sex and different-sex
couples, would pass constitutional muster. The Court specifically chose
to answer that question, and it held that any statute criminalizing sodomy
between consenting adults in the privacy of the home is unconstitutional.21
By broadening the opinion beyond the scope of the statute at issue, however,
the Court's holding raises questions about the constitutionality of state
statutes that criminalize other private, intimate behavior between consenting
The Court never explicitly
stated that there now exists a fundamental right to sodomy, and in fact
avoided this issue by holding that the Bowers Court misstated the
issue by addressing that question. The Bowers Court, when faced
with the decision as to whether sodomy was a fundamental right, found
that sodomy was neither a deeply rooted liberty in our history, nor was
it implicit in concepts of liberty and justice, the standards set forth
for identifying unenumerated rights.
The Lawrence Court avoided the challenges set forth by such an
analysis. The Court avoided the arduous and activist task of finding yet
another fundamental right embedded in the penumbras of the Constitution.
Instead of seeking to find a fundamental right for sodomy, the Lawrence
Court couched its analysis on the precedent cases that established and
explained the unenumerated right to privacy, as protected by the substantive
liberty interest of the Due Process Clause of the Fourteenth Amendment.
Previous Courts had established that the fundamental right to privacy
encompasses personal decisions relating to marriage, procreation, contraception
and family relationships. The Court simply continued the analysis and
expansion of the fundamental right to privacy that has developed over
the past four decades. Therefore, while there is no fundamental right
to sodomy per se, the Court found that the fundamental right to privacy
protects the autonomy of individuals to engage in private, consensual,
intimate activity, which includes sodomy.
As explained earlier
in this brief, courts traditionally employ a heightened standard of review,
also known as strict scrutiny, when examining a law that seeks to abridge
a fundamental right such as privacy. Such laws will only be upheld if
the government can demonstrate that the law is narrowly tailored to further
a compelling government interest. Interestingly, the Lawrence Court
makes no reference to a strict standard of review in reviewing the Texas
statute, even though the opinion focuses on the fundamental right to privacy.
In fact, in reaching the holding, the Court states that the Texas statute
furthers no legitimate state interest to justify the intrusion
into the personal and private life of the individual.22 This
choice of language parallels the deferential rational-basis standard of
review employed by a court when reviewing legislation that does not seem
to encroach on fundamental rights.
Such a standard is
not problematic in the instant case. If the Texas law does not satisfy
the lesser rational-basis standard of review, it certainly would not withstand
a heightened review. In reviewing the Texas legislation, both the majority
and Justice O'Connor in her concurrence find that moral disapproval of
an action is not a legitimate basis to uphold a law. What remains unclear
is how this holding will affect other statutes that may prohibit physical,
intimate conduct between consenting adults. Both the opinion and the concurrence
suggest that protecting a traditional institution, such as marriage, may
provide a legitimate state interest in legislation.23 The majority
also holds that there is a valid state interest in enacting laws that
protect minors or persons who might be coerced or injured, limit public
conduct, and prohibit prostitution and that such laws would not violate
the right to privacy. However, the dicta discussing what may or may not
be legitimate state interests do not indicate to what standard of review
other similar legislation might be subjected-the rational basis the Court
seems to have employed in Lawrence or the heightened standard of
review traditionally used in cases involving fundamental rights-leaving
open the important question of how narrowly tailored such legislation
must be to pass future constitutional analysis.
The Implications of Lawrence
by the Lawrence decision is the following provision of the Virginia
Crimes against nature.
A. If any person
carnally knows in any manner any brute animal, or carnally knows any male
or female person by the anus or by or with the mouth, or voluntarily submits
to such carnal knowledge, he or she shall be guilty of a Class 6 felony,
except as provided in subsection B.
B. Any person
who carnally knows by the anus or by or with the mouth his daughter or
granddaughter, son or grandson, brother or sister, or father or mother
shall be guilty of a Class 5 felony. However, if a parent or grandparent
commits any such act with his child or grandchild and such child or grandchild
is at least thirteen but less than eighteen years of age at the time of
the offense, such parent or grandparent shall be guilty of a Class 3 felony.
To the extent that
this statute criminalizes private, intimate sexual conduct between
consenting adults, it is unconstitutional.
Also called into
question are other sections of the Virginia Code that proscribe private,
consenting acts between adults. Most notably, the Lawrence decision
raises strong questions about the constitutionality of § 18.2-344,
prohibiting fornication by unmarried persons, and § 18.2-345, prohibiting,
in part, unmarried persons from "lewdly and lasciviously" associating
and cohabiting. Also in question, but perhaps less so, given the Court's
dicta that protection of the institution of marriage might be a valid
state interest, is § 18.2-361, prohibiting adultery.
As noted in the discussion
of Lawrence, a legislative determination that certain conduct is
immoral is no longer a legitimate state interest, and that justification
alone will not allow a law to be upheld under even the most basic standard
of review. Therefore, in reviewing any legislation that seeks to proscribe
a private relationship between consenting adults, a state must offer a
more legitimate justification for the necessity of the law. What is less
clear, however, is how much more compelling that justification must be.
While holding that
the right to privacy, as protected by the liberty interest of the Due
Process Clause of the Fourteenth Amendment, includes the right of consenting
adults to engage in intimate behavior in the privacy of the home, the
Court did not clearly pave the way for judicial review of such legislation.
If one were to follow the standards announced by previous Courts, any
legislation abridging the fundamental right to privacy must be narrowly
tailored to further a compelling state interest. However, the Texas statute
reviewed by the Lawrence Court appears to have been examined using
only a rational-basis test. If one of the Virginia laws mentioned above
were challenged, it is unclear how strong a justification would be required
to uphold it or the level of deference the Court would afford the legislature.
The Court wrote that the Lawrence petitioners "are entitled to respect
for their private lives."24 Lawrence redrew the
line between the privacy of individuals and the interests of the state
to protect more private conduct from state interference than previously
recognized; however, just where that line now rests remains unclear.
TEX. PENAL CODE ANN. §
See JOHN E. NOWAK AND RONALD D. ROTUNDA, Constitutional Law, §
11.7, 404 (5th ed., 1995).
3 See Lawrence v. Texas, No. 02-102, 2003 U.S. LEXIS
5013 at *28 (2003) (citing Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 883, 851 (1992)). See also Griswold v. Connecticut,
381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972),
Roe v. Wade, 410 U.S. 113 (1973), Carey v. Population Services
Int'l, 431 U.S. 678 (1977).
4 See Casey at 851.
5 § 16-6-1 Georgia Code Ann. 1984.
6 Bowers at 189 (citing Hardwick v. Bowers, 760
F. 2d 1202 (1985), rev'd 478 U.S. 186 (1986)).
7 See id. at 192.
8 See id. (citing Palko v. Connecticut, 302 U.S.
319, 325, 326 (1937), Moore v. East Cleveland, 431 U.S. 494, 503
(1977)). See id. at 194, 195.
9 See id. at 196.
10 TEX. PENAL CODE ANN. § 21.01(1) (2003).
11 In relevant part, the Fourteenth Amendment of the United
States Constitution provides that "No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty,
or property without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
12 See Lawrence v. Texas, 41 S.W. 3d 349 (Tex. Crim.
App. 2001), rev'd, 2003 U.S. LEXIS 5013 (2003).
13 See Lawrence, supra n. 4, at *11.
14 See id. at *16.
15 See id. at *35 (citing Bowers at 216 (Stevens,
16 See id. at *9, *16, *17.
17 Id. at *36.
18 See id. at *47, *48 (O'Connor, J., concurring).
19 See id. at *57, *82 (Scalia, J., dissenting).
20 See id. at *83 (Thomas, J., dissenting.
21 See id. at *30.
22 See id. at *36.
23 See id. See also id. at *48 (O'Connor,J., concurring.)
24 Id. at *36.
Issue Brief is an occasional publication of the Division of Legislative
Services, an agency of the General Assembly of Virginia.
R.J. Austin, Manager,
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
Commonwealth of Virginia.