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Number 33                            July 2003

Sodomy and the Right to Privacy:

Reassessing Privacy Interests in
Texas v. Lawrence

Lisa Wallmeyer, Staff Attorney

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 adults.

The Right to Privacy Prior to Lawrence

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 Precedent

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 right.7

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: Facts

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…[i]ndividual 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

Justice O'Connor, 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 adults.

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 in Virginia

Directly affected by the Lawrence decision is the following provision of the Virginia Code:

§ 18.2-361. 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.


1 TEX. PENAL CODE ANN. § 21.06 (2003).

2 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, J. dissenting)).

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.

Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.

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R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

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