The Rehnquist Court (1986–2005)
Did the Rehnquist Court rule on the constitutionality of anti-sodomy laws?
Yes, the Rehnquist Court issued its landmark decision in Lawrence v. Texas in 2003, which struck down a Texas anti-sodomy law. The Texas law made it a crime for two persons of the same sex to engage in sodomy. The case occurred when police went to the apartment of John Geddes Lawrence after receiving a report of weapons disturbance. Police found no weapons but did find Lawrence having sex with a man named Tyron Garner. The police charged Lawrence and Garner with violating the anti-sodomy law. The two men contended the law violated their due-process rights by violating their fundamental rights of liberty and privacy.
The law appeared to be against Lawrence and Garner because of the Burger Court precedent in Bowers v. Hardwick (1986). In that decision, the U.S. Supreme Court upheld a Georgia sodomy law, finding that there was no fundamental constitutional right for homosexuals to engage in sodomy. Lawrence and Garner asked the U.S. Supreme Court to overturn Bowers.
To the surprise of some, the U.S. Supreme Court overruled Bowers in its decision. Justice Anthony Kennedy, in his majority opinion, wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Kennedy reasoned that the State did not have the legal authority to regulate the private conduct of two consenting adults. “The petitioners [Lawrence and Garner] are entitled to respect for their private lives,” Kennedy wrote. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”
In her separate concurring opinion, Justice Sandra Day O’Connor reasoned that the law was unconstitutional because it violated the Equal Protection Clause to single out sodomy acts by persons of the same sex. Justice Antonin Scalia authored one of his patented stinging dissents, accusing the majority of having “taken sides in the culture war.” He criticized the majority for questioning the state’s moral justification for its homosexual sodomy law. He warned that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are “called into question” by the majority’s decision.