Monday, March 25, 2013

The Legacy of Lawrence v. Texas

by Heather Kushnerick, Special Collections Librarian

      This week two cases concerning gay rights will be argued before the Supreme Court. The first, Dennis Hollingsworth, et al. v. Kristin M. Perry, et al. (12-144), seeks to strike down California’s voter-approved ban on same sex marriage and declare that gay couples can legally marry not just in California but nationwide.  The other, United States v. Edith Windsor (12-307), challenges the Defense of Marriage Act. These important cases could change the lives of countless citizens, providing not just equal protection, but equal recognition of their relationships and families.
      Ten years ago this week another landmark case was heard by the Supreme Court. In Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court voted 6-3 to strike down the sodomy law in Texas and reversed the Court’s own decision in Bowers v. Hardwick, 478 U.S. 186 (1986), where the Court held that the due process clause of the Fourteenth Amendment did not confer a fundamental right on homosexuals to engage in consensual sodomy.  The majority, consisting of Justices Kennedy, Stevens, Souter, Ginsberg, and Breyer, held that the convictions under the Texas statute violated the petitioners’ vital interests in liberty and privacy, protected by the due process clause, for several reasons, among them that the statute sought to control a personal relationship between two consenting adults.  Lawrence thus invalidated similar laws throughout the United States that criminalized sodomy between consenting same-sex adults acting in private and invalidated the application of sodomy laws to heterosexual sex based on morality concerns.  Justice O’Connor agreed that the Texas statute was unconstitutional, however she based her decision on the equal protection clause, not on the due process clause, as the statute discriminated against homosexuals as a distinct class of persons.  She did not join the majority in overruling Bowers.  The dissent was written by Justices Scalia and Thomas and Chief Justice Rehnquist, who did not believe that Bowers should have been overruled, that the Texas statute did not violate due process nor did it infringe on a fundamental right, and it did not deny the equal protection of the laws.   Justice Thomas believed that the statute was “uncommonly silly” and should be repealed by the state legislature, however the Supreme Court was not empowered to help as there is no general right of privacy in the Bill of Rights or in any other part of the Constitution. 

     On display now in the Fred Parks Law Library lobby is The Legacy of Lawrence v. Texas, an exhibit that contains some of the briefs presented in the Lawrence case as well as materials on gay rights and marriage equality from the Library’s main collection. The Special Collections Department houses the records of the Lawrence case, which were graciously donated by one of the attorneys on the case, South Texas alumnus and Adjunct Professor Mitchell Katine.  The whole collection can be viewed online in our digital collections.  This exhibit will be up until August 31, 2013.