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Sexual Orientation Court Cases
Bowers v. Hardwick (1986)
Facts of the Case:
Michael Hardwick was observed by a Georgia police officer while engaging in the act of
consensual homosexual sodomy with another adult in the bedroom of his home. After being
charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the
statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to
state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded,
holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J.
Bowers, appealed to the Supreme Court and was granted certiorari.
Does the Constitution confer a fundamental right upon homosexuals to engage in consensual
sodomy, thereby invalidating the laws of many states which make such conduct illegal?
No. The divided Court found that there was no constitutional protection for acts of sodomy, and
that states could outlaw those practices. Justice Byron White argued that the Court has acted to
protect rights not easily identifiable in the Constitution only when those rights are "implicit in the
concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the
Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to
commit sodomy did not meet either of these standards. White feared that guaranteeing a right to
sodomy would be the product of "judge-made constitutional law" and send the Court down the
road of illegitimacy.
Decision: 5 votes for Bowers, 4 vote(s) against
Legal provision: Due Process
Lawrence v. Texas (2003)
Facts of the Case:
Responding to a reported weapons disturbance in a private residence, Houston police entered
John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a
private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate
sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to
engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the
statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment,
with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.
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?
No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that
the Texas statute making it a crime for two persons of the same sex to engage in certain intimate
sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful
and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence
and Garner were free as adults to engage in the private conduct in the exercise of their liberty
under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of the government," wrote Justice
Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion
into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the
Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the
judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H.
Rehnquist and Justices Thomas joined, filed dissents.
Decision: 6 votes for Lawrence and Garner, 3 vote(s) against
Legal provision: Due Process