BEST STAFF COMPETITION PIECE Constitutional Law Substantive Due Process and the Not-So Fundamental Right to Sexual Orientation Lawrence v. Texas, 123 S. Ct. 2472 (2003) The Due Process Clause of the Fourteenth Amendment to the United States Constitution serves not only as a guarantee of procedural propriety, but also as a source of substantive individual rights. 1 Although the Supreme Court of the United States has repeatedly employed substantive due process to prevent government intrusion into the most intimate aspects of daily life, the Court has refused to extend its protection to private homosexual intimacy. 2 In Lawrence v. Texas, 3 the Supreme Court considered whether a Texas statute criminalizing same-sex sodomy violated the right to liberty and privacy that the Due Process Clause protects. 4 The Court struck down the statute, holding that the state may not interfere with homosexual intimacy in the privacy of one s home. 5 In September 1998, police officers entered John Lawrence s apartment in Houston, Texas and witnessed him engaging in sexual intercourse with another man, Tyrone Garner. 6 Both men were arrested and convicted under a Texas Suffolk University Law Review selected this case comment as the Best Staff Competition Piece for 2003. Each summer, the Law Review hosts a writing competition from which the Law Review chooses its new staff members based on their writing ability. The Editorial Board found Adam s piece extremely well-written with insightful analysis. We would like to congratulate Adam on his achievement. 1. U.S. CONST. amend. XIV, 1. The Due Process Clause of the Fourteenth Amendment provides in part: nor shall any State deprive any person of life, liberty, or property, without due process of law. Id. Although absent in the explicit text of the Amendment, the Supreme Court has recognized a substantive liberty interest in the Due Process Clause that supplements the enumerated guarantees of the Bill of Rights. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494, 499-500 (1977) (recognizing fundamental right of unrelated persons to live together protected under Due Process Clause); Roe v. Wade, 410 U.S. 113, 153-54 (1973) (declaring woman s fundamental right to abortion protected under Due Process Clause); Loving v. Virginia, 388 U.S. 1, 12 (1967) (declaring Due Process Clause protects marriage from state interference). 2. See Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (refusing to strike down Georgia anti-sodomy statute), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). 3. 123 S. Ct. 2472 (2003). 4. Id. at 2476 (considering constitutional nature of Texas sodomy statute). 5. Id. at 2484 (declaring right to liberty allows homosexuals to engage in private sexual conduct without government intervention). 6. Id. at 2475-76 (detailing events leading up to arrest and subsequent complaints). Police had been dispatched to Lawrence s apartment after receiving information about a possible weapons disturbance. Id. at 2475. An investigation later determined that the weapons disturbance was falsely reported by Lawrence s neighbor, Roger Nance, who served two weeks in jail for filing a false police report. Frank J. Murray, High Court to Rule on Sodomy Laws; Case Challenges Texas Law Concerning Same-Sex Couples, WASH. TIMES, Dec. 2, 2002, at A04 (detailing subsequent investigation and discovery of false report).
1250 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:1249 statute criminalizing deviate sexual conduct between members of the same sex. 7 Lawrence and Garner appealed their convictions, arguing that the statute violated their constitutional rights to privacy and equal protection of the laws under the Fourteenth Amendment. 8 The Court of Appeals for Texas Fourteenth District affirmed the convictions, citing United States Supreme Court precedent that refused to recognize a fundamental right to engage in sodomy. 9 The court concluded that neither the State nor the Federal Constitution extended a right of privacy that protects homosexual intimacy. 10 The Supreme Court of the United States reversed the Texas Court of Appeals, holding that the Due Process Clause does protect homosexual intimacy from government interference. 11 In addition, the Court overruled its own decision in Bowers v. Hardwick, 12 stating that its continued existence as precedent demeaned the lives of homosexuals. 13 Although the Court indicated that the statute might also violate the Equal Protection Clause, the majority grounded its decision in substantive due process and concluded that a state may not criminalize the consensual conduct of homosexuals in the privacy of their own homes. 14 The Supreme Court has long recognized various unenumerated rights in cases involving personal and family autonomy. 15 The concept of a general right to privacy, however, did not appear until the 1965 case Griswold v. Connecticut. 16 In Griswold, the Court struck down a state law that prohibited 7. TEX. PENAL CODE ANN. 21.06 (Vernon 2003) (declared unconstitutional by Lawrence v. Texas, 123 S. Ct. 2472 (2003)). The statute imposes a Class C misdemeanor on any person who engages in deviate sexual intercourse with another individual of the same sex. Id. 8. Lawrence v. State, 41 S.W.3d 349, 350-59 (Tex. Ct. App. 2001) (describing constitutional privacy and equal protection arguments), rev d, 123 S. Ct. 2472 (2003). Both men argued that the statute violated the Equal Protection Clause based on gender and sexual orientation because it prohibited sodomy between individuals of the same sex but not individuals of different sexes. Id. at 357. On privacy grounds, the men argued that their conduct was intimate in nature and, therefore, beyond the scope of government interference. Id. at 359. 9. Lawrence v. State, 41 S.W.3d 349, 350 (Tex. Ct. App. 2001) (citing Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003)), rev d, 123 S. Ct. 2472 (2003). 10. Lawrence v. State, 41 S.W.3d 349, 362 (Tex. Ct. App. 2001) (summarizing court s ruling upholding statute and affirming convictions), rev d, 123 S. Ct. 2472 (2003). 11. 123 S. Ct. at 2484 (reversing decision of lower court). 12. Id. at 2483 (overruling Court s holding in Bowers). 13. Id. at 2482 (explaining stigma attached to holding in Bowers). 14. See id. (explaining Court s preference for substantive due process argument instead of equal protection argument). The Court determined that a ruling grounded in equal protection principles would invite future efforts to rewrite the statute to achieve the same result. See id. 15. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (recognizing procreation as basic civil right of man protected by Fourteenth Amendment). Although the decision in Skinner is based on equal protection principles, it recognizes the right to procreate as an essential component of liberty. Id.; see Pierce v. Soc y of Sisters, 268 U.S. 510, 534 (1925) (recognizing Fourteenth Amendment protects parents liberty interest in directing children s upbringing); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923) (recognizing liberty in Due Process Clause protects right to teach children foreign languages); see also Adam B. Wolf, Fundamentally Flawed: Tradition and Fundamental Rights, 57 U. MIAMI L. REV. 101, 109 (2002) (explaining development of fundamental rights and substantive due process). 16. 381 U.S. 479, 484 (1965).
2004] CASE COMMENT 1251 the distribution or use of contraceptive drugs or devices for the purpose of preventing conception. 17 The Court identified penumbras in several of the enumerated guarantees of the Bill of Rights that collectively formed a zone of privacy protecting the marital bedroom from government intrusion. 18 The Court has since relocated the right to privacy, confining it to the substantive component of the Fourteenth Amendment s Due Process Clause. 19 Having identified a right to privacy in Griswold, the Court has spent the last four decades defining its scope. 20 Rights the Court considers fundamental merit strict scrutiny of encroaching legislation and yield only to compelling state interests. 21 In contrast, lesser rights garner only rational basis review and are superceded by a legitimate state interest. 22 A right is generally fundamental if its exercise is deeply rooted in the nation s history and traditions or is implicit in the concept of ordered liberty. 23 Despite judicial expansion of the right to privacy, the Court refused to protect homosexual intimacy. 24 In Bowers v. Hardwick, 25 the Court upheld a Georgia statute criminalizing sodomy and concluded that the right to privacy did not protect homosexual intimacy from state regulation. 26 Refusing to identify a fundamental right to engage in sodomy, the Court applied rational 17. Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (invalidating Connecticut s accessory statute as violation of privacy under Due Process Clause of Fourteenth Amendment). 18. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (describing penumbras creating right to privacy in First, Third, Fourth, Fifth, and Ninth Amendments). The Court reasoned that the law violated the penumbral right to privacy because it prevented use of contraceptives and thereby achieved its goals through a destructive impact on the relationship. Id. at 485. Subsequently, the Court expanded the right to privacy to include non-married individuals. See Carey v. Population Servs. Int l, 431 U.S. 678, 697-99 (1977) (holding state may not deny young people access to contraceptives). 19. See supra note 1 and accompanying text (citing cases recognizing privacy rights under substantive component of Due Process Clause); see also Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846 (1992) (reaffirming Due Process Clause as source of woman s right to abortion). 20. See supra note 1 and accompanying text (citing landmark cases defining right to privacy under Due Process Clause). 21. See Roe v. Wade, 410 U.S. 113, 155 (1973) (stating laws infringing on fundamental rights must show compelling state interest ); see also Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (explaining Court s analysis of laws infringing fundamental rights). 22. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (stating standard of review applied to nonfundamental rights); Williams v. Vermont, 472 U.S. 14, 17 (1985) (applying rational basis standard to nonfundamental right). 23. See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (explaining criteria for recognition of fundamental rights); Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (explaining deeply rooted test for identifying fundamental rights); see also Palko v. Connecticut, 302 U.S. 319, 325-26 (1937) (stating criteria for recognition of fundamental right). A right is deemed fundamental if it is implicit in the concept of ordered liberty. Palko, 302 U.S. at 325. 24. See Bowers v. Hardwick, 478 U.S. 186, 191-96 (1986) (holding Constitution does not protect sodomy), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). 25. 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). 26. Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (refusing to extend Constitutional protection to homosexual intimacy), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). The facts in Bowers were essentially the same as in Lawrence, except the men arrested for sodomy were not charged. Id. at 188. Unlike the statute in Lawrence, the Georgia statute prohibited sodomy between members of the opposite sex also. Id.
1252 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:1249 basis review, concluding that states have a legitimate interest in the preservation of morality. 27 Although Bowers temporarily halted expansion of privacy rights under the Fourteenth Amendment, the Court continued to employ the Due Process Clause to distance the government from the private lives of its citizens. 28 In subsequent rulings, the Court both reaffirmed the substantive dimension of the Due Process Clause and weakened the foundation of Bowers by refusing to recognize moral disapproval as a legitimate state interest. 29 Despite the resurgence of the right to privacy, however, the Court remained reluctant to recognize new fundamental rights under substantive due process principles. 30 In Lawrence v. Texas, the Supreme Court employed the substantive component of the Fourteenth Amendment s Due Process Clause to invalidate a Texas statute criminalizing same-sex sodomy. 31 Following the blueprint of post-griswold cases and citing continuing criticism of Bowers at home and abroad, the Court determined that the Fourteenth Amendment s guarantee of liberty protected private homosexual intimacy. 32 Unlike previous landmark cases, the Court did not identify a fundamental right to engage in such conduct. 33 Instead, the Court concluded that the Texas statute furthered no legitimate state interest that would validate its invasive effect on the lives of homosexuals. 34 Consistent with its recent rulings, the Court also rejected Texas asserted interest in preserving morality by stating that homosexuals have the right to engage in certain conduct in their homes without being 27. Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (applying rational basis test to Georgia anti-sodomy law), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). 28. See Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) (employing substantive due process to invalidate Pennsylvania s spousal consent provision in abortion statute). 29. See Romer v. Evans, 517 U.S. 620, 635 (1996) (invalidating amendment to Colorado Constitution prohibiting state protection of homosexuals based on sexual orientation). In striking down Colorado s Amendment 2, the Court held that a law born out of animosity towards a certain group can never proffer a legitimate state interest. Id. at 634; see also Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846 (1992) (reaffirming central holding in Roe and recognizing Due Process Clause as source of fundamental right). Contra Romer, 517 U.S. at 644 (Scalia, J., dissenting) (arguing Amendment 2 not born out of animus towards homosexuals). 30. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (declining to recognize fundamental right to assisted suicide); Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (holding no fundamental right to visitation of children); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (declining to recognize fundamental right to education). 31. 123 S. Ct. at 2484 (holding Texas sodomy statute violates liberty interest in Due Process Clause). 32. See id. (stating liberty interest in Due Process Clause of Fourteenth Amendment protects homosexual intimacy). 33. Compare 123 S. Ct. at 2484 (recognizing liberty interest protects homosexual intimacy), with Roe v. Wade, 410 U.S. 113, 153-54 (1973) (recognizing woman s fundamental right to terminate pregnancy in fetal pre-viability stages). 34. 123 S. Ct. at 2484 (holding Texas statute furthers no legitimate state interest). While the Court does not explicitly identify its standard of review, it mentions a legitimate state interest instead of a compelling state interest, which implies rational basis review. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997) (stating standard of review applied to non-fundamental rights).
2004] CASE COMMENT 1253 branded as criminals. 35 In striking down the Texas sodomy law, the Supreme Court correctly identified the Fourteenth Amendment s Due Process Clause as the source of protection for homosexual intimacy. 36 By grounding its ruling in substantive due process, the Court properly positioned itself to reconsider and overrule Bowers, thus invalidating the precedent that the statute relied on. 37 The Court s refusal to declare a fundamental right to sexual orientation remains consistent with recent substantive due process jurisprudence and demonstrates the Court s reluctance to recognize new fundamental rights. 38 In Lawrence, however, the Court s failure to explicitly identify such a right highlights subtle inconsistencies in an otherwise strong declaration of homosexual autonomy. 39 The deferential standard of review applied to the Texas statute is entirely inconsistent with the forceful language the Court used to denounce it. 40 After boldly proclaiming that [l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct, the Court employed mere rational basis review, its least exacting standard of scrutiny. 41 The Court repeatedly identifies a mere liberty interest protecting homosexual intimacy, instead of explicitly extending the post-griswold right of privacy to include such conduct. 42 The Court s justification for deviating from the doctrine of stare decisis is equally puzzling. 43 By relying on foreign case law and mounting criticism of Bowers, the majority implies their ruling is based, in 35. See 123 S. Ct. at 2484 (declaring state may not criminalize private consensual homosexual intimacy); id. at 2486 (O Connor, J., concurring) (rejecting moral disapproval as legitimate state interest). 36. See supra note 1 and accompanying text (citing cases employing substantive due process protection in matters of family and procreation). But see 123 S. Ct. at 2484 (O Connor, J., concurring) (arguing ruling should be based on equal protection principles instead of substantive due process). Justice O Connor notes that the Court is most likely to apply rational basis review and strike down laws under the Equal Protection Clause where the challenged legislation inhibits personal relationships. Id. at 2485. Noting that the Texas statute prohibits sodomy only between persons of the same sex, Justice O Connor stated that Texas treats the same conduct differently based solely on the participants. Id. 37. See Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (basing ruling on fundamental rights and substantive due process principles), overruled by Lawrence v. Texas, 123 S. Ct. 2472 (2003). 38. Supra note 28 and accompanying text (citing Casey, which declined to recognize new fundamental right under substantive due process principles). 39. See 123 S. Ct. at 2489-93 (Scalia, J., dissenting) (noting inconsistencies in majority s reasoning). Justice Scalia sharply criticizes the majority s reasoning, including its use of Casey to support the substantive component of the Due Process Clause, while dismissing its strong language supporting stare decisis. Id. at 2488. Justice Scalia also noted the Court s strong reliance on stare decisis while reaffirming abortion rights in Casey, including the importance of adhering to the doctrine in the face of widespread criticism. Id. 40. See id. at 2484 (applying rational basis review after strongly denouncing Texas statute). 41. Id. (noting low standard of review used by Court after strong language denouncing statute). 42. See id. (failing to identify right to privacy as protection of homosexual intimacy). Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. Id. (emphasis added). 43. See 123 S. Ct. at 2488 (Scalia, J., dissenting) (criticizing majority for overruling Bowers). Justice Scalia comments on the Court s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. Id.
1254 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:1249 part, on foreign precedent and public opinion. 44 As the dissent properly points out, neither has any role in the Supreme Court s interpretation of the United States Constitution. 45 Despite flawed reasoning, the Lawrence holding will have an enormous impact on the future of morals legislation. 46 Considering the small number of states prohibiting sodomy and the infrequency of enforcement, Lawrence may come to symbolize the emancipation of pornographers rather than homosexuals. 47 By rejecting Texas moral-preservation defense, the decision questions the validity of other morals legislation and deprives states of a legitimate argument in upholding them. 48 If the Court had declared a fundamental right to sexual orientation, strict scrutiny would strike down offending laws while a rational basis analysis would apply to other morality laws. 49 The Court s decision in Lawrence v. Texas extends long overdue protection to homosexual intimacy through application of substantive due process principles. In its effort to recognize homosexual autonomy, however, the Court has severely handicapped the state s ability to define morally unlawful conduct. Regardless of its uncertain impact on morals legislation, Lawrence marks the end of state-sanctioned stigmatization of homosexuals and a long-awaited departure of the state from the bedroom of homosexuals. Adam J. Homicz 44. See id. at 2482-83 (citing substantial and continuing criticism of Bowers decision in United States and abroad). 45. See id. at 2489 (Scalia, J., dissenting) (describing majority s discussion of foreign precedent as meaningless dicta ); see also Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 854 (1992) (stating importance of upholding precedent despite socially divisive nature of issue). 46. See 123 S. Ct. at 2495 (Scalia, J., dissenting) (describing Court s holding as end of all morals legislation ). As Justice Scalia correctly noted in his dissent, the overruling of Bowers leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Id. at 2496. Lawrence will almost certainly be credited with starting the domino effect towards legalization of same-sex marriage. See Carolyn Lochhead, Same-sex Marriage Momentum Stuns Both Its Backers and Foes, S.F. CHRON., Mar. 5, 2004, at A19 (noting opponents of same-sex marriage trace genesis through Massachusetts decision back to Lawrence). 47. See 123 S. Ct. at 2490 (Scalia, J., dissenting) (noting majority makes no attempt to limit scope of decision); see also Murray, supra note 6, at A03 (reporting challenge to Ohio obscenity law citing Lawrence as precedent). 48. 123 S. Ct. at 2490 (Scalia, J., dissenting) (stating decision calls into question laws against bigamy, incest, bestiality, and prostitution); see also Goodridge v. Dep t of Pub. Health, 798 N.E.2d 941, 953 (Mass. 2003) (citing Lawrence in landmark decision holding Massachusetts ban on same-sex marriages unconstitutional). The Goodridge decision made Massachusetts the first state in the country to declare any ban on same-sex marriage unconstitutional. Goodridge, 440 N.E.2d at 957. The four-vote majority decision of the Supreme Judicial Court came less than six months after Lawrence and cites the case eight times in support of its holding. Id. at 958-86. 49. See supra note 21 and accompanying text (describing strict scrutiny applied to legislation infringing on fundamental rights); see also Carey v. Population Servs. Int l, 431 U.S. 678, 688 (1977) (applying same standard of review to contraceptive laws as abortion laws).