Lawrence V. Texas - Background

Background

Legal punishments for sodomy often included heavy fines and/or life prison sentences, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied a driver's license to a man for being an "admitted homosexual".

As of 1960, every state had an anti-sodomy law. In 1961, the American Law Institute's Model Penal Code advocated repealing sodomy laws as they applied to private, adult, consensual behavior. A few years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws. Most judges were largely unsympathetic to the substantive due process claims raised.

In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold for the first time the Supreme Court recognized, at least for married couples, a right to privacy, drawing on the Fourth Amendment's protection of private homes from searches and seizures without a warrant based on probable cause, the Fifth Amendment's guarantee of due process of law, and the Ninth Amendment's assurance that rights not specified in the Constitution are "retained by the people." Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.

In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge in a 5 to 4 decision. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a "right" to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently.

By the time of the Lawrence decision, nine states−Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia−still banned consensual sodomy without respect to the sex of those involved, and four−Texas, Kansas, Oklahoma and Missouri−prohibited same-sex couples from engaging in anal and oral sex.