In an intriguing aside, she suggested that prohibiting same-sex marriage would be constitutional under rational basis review as long as it was not driven by animosity toward homosexuals. She was less persuaded by the privacy argument of the defense than its alternative argument that the state could not criminalize anal sex between men if it did not criminalize anal sex between a man and a woman. He accused the majority of taking the process of social change into its own hands rather than letting gay rights activists pursue their goals through the legislature.ĭefending Bowers, with which she had agreed, O'Connor stated that she would have struck down the law on the grounds of equal protection rather than due process. Scalia suggested that this decision would lead to a slippery slope in which no form of sexual conduct, no matter how socially undesirable, could be constitutionally prohibited. Wade, implying that the majority tailored its reasoning to further the causes of abortion and gay rights with which those Justices sympathized. He contrasted its logic in this case with the reasoning that it had used in Planned Parenthood v. Hardwick, Scalia warned that rethinking this decision could have a ripple effect that would undermine many of the Court's other decisions. This showed that the key factor in the decision was that the sexual acts happened inside a private residence, where the state and law enforcement had no right to dictate individual behavior in these deeply personal matters.Ĭhiding the majority for overturning Bowers v. As a caveat, Kennedy added that a state still could criminalize non-consensual homosexual intercourse, intercourse involving children, prostitution, or public sexual conduct. This right was similar to the right of privacy in issues related to marriage, procreation, and other family relationships. Kennedy stated that homosexuals had a fundamental right in engaging in private sexual activity and that the state did not have the right to impose its own moral perspective on individuals. The majority's reasoning was based on due process rather than equal protection concerns. The Texas Court of Criminal Appeals (essentially the state supreme court for criminal matters) declined review. Hardwick that criminalizing homosexuality was constitutional, they asserted the creative argument of a right to privacy and argued that law enforcement should not have the right to invade an individual's bedroom.Īlthough a three-judge appellate panel initially agreed with the defendants and struck down the law, an en banc review reversed the panel without hearing oral arguments and found the law constitutional. Challenging the Supreme Court's decision in Bowers v. The defense attorneys argued that the Texas law violated the Constitution because it prevented only homosexual couples from engaging in anal sex while allowing the same conduct for heterosexual couples. Appeals were permitted only in cases where a fine of at least a certain amount was imposed. They pleaded no content to the charges on the advice of their lawyers and were fined a small amount, which was raised when the judge realized that their lawyers planned to raise a constitutional challenge to the convictions. (Garner was African-American.) Nevertheless, Quinn charged Lawrence and Garner with "deviate sex" under Chapter 21, Section 21.06 of the Texas Penal Code. It is possible that Quinn's account was driven by Lawrence's hostility toward him as well as his biases against African-Americans and homosexuals. However, the other three officers reported different stories, two of them saying that they saw no intercourse at all. One of the deputies, Joseph Quinn, alleged that Lawrence and Garner were engaged in anal sex in the bedroom, which was unlocked. The sheriff's deputies entered the apartment on Eubanks' directions with weapons drawn. He then called the police and reported that there was a disturbance involving weapons at the apartment. Eubanks was angry that Garner had been flirting with Lawrence and left the apartment, ostensibly to buy a soda. While Garner and Eubanks had been involved in a romantic relationship, Lawrence and Eubands were friends. John Lawrence, Tyron Garner, and Robert Eubanks were three gay men spending the evening together at Lawrence's apartment in Houston.
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