Dissent in Lawrence v. Texas
539 U.S. 558 (2003) (2003) · Supreme Court of the United States
Lawrence v. Texas struck down state sodomy laws as violating the liberty protected by the Due Process Clause, overruling Bowers v. Hardwick. The decision established that intimate consensual sexual conduct between adults is protected by the Constitution and marked a major advance in LGBTQ rights and personal autonomy doctrine.
What was the dissent in Lawrence v. Texas?
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented vigorously. Scalia argued that the majority was overruling a 17-year-old precedent without adequate justification and that the decision called into question all morals legislation. He warned that the opinion's logic would lead inevitably to the recognition of same-sex marriage, a prediction that proved accurate twelve years later in Obergefell.
Case Overview
Facts
Houston police officers entered the apartment of John Lawrence in response to a reported weapons disturbance and found Lawrence engaged in a sexual act with another adult man, Tyron Garner. Both men were arrested, held overnight, and charged under Texas's Homosexual Conduct law, which criminalized sexual intercourse between persons of the same sex. They were convicted and fined $200 each.
Majority Holding
The Court held 6-3 that the Texas sodomy law was unconstitutional. Justice Kennedy's majority opinion held that the liberty protected by the Due Process Clause gives consenting adults the right to engage in private sexual conduct without government intervention. The Court expressly overruled Bowers v. Hardwick, which had upheld a similar Georgia sodomy statute in 1986.
Majority Reasoning
Justice Kennedy's opinion held that Bowers had failed to appreciate the extent of the liberty at stake, framing the issue too narrowly as whether there is a fundamental right to engage in homosexual sodomy. The proper framing was whether the government may intrude on the most private human conduct in the most private of places, the home. Kennedy traced the history of sodomy laws and found that the historical grounds relied upon in Bowers were overstated. The opinion held that adults have a liberty interest in choosing to enter into personal relationships in the confines of their homes without being labeled criminals, and that moral disapproval alone is not a sufficient basis for legislation.
The Dissenting Opinion
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented vigorously. Scalia argued that the majority was overruling a 17-year-old precedent without adequate justification and that the decision called into question all morals legislation. He warned that the opinion's logic would lead inevitably to the recognition of same-sex marriage, a prediction that proved accurate twelve years later in Obergefell.
Key Quotes
“The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
“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.”
“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Impact and Legacy
Lawrence invalidated sodomy laws in the thirteen states that still had them and fundamentally shifted the constitutional landscape for LGBTQ rights. The decision's broad language about personal autonomy and liberty influenced subsequent cases on same-sex marriage and other privacy rights. It demonstrated that the Court was willing to overrule relatively recent precedent when it concluded that a prior decision was fundamentally wrong.
Exam Relevance
Lawrence is tested in substantive due process questions about the scope of liberty and the standard of review applicable to personal autonomy claims. Professors frequently ask whether Lawrence applied rational basis review, heightened scrutiny, or something in between, as the opinion deliberately avoided specifying the level of scrutiny. Students should also be prepared to evaluate Lawrence's stare decisis analysis alongside Casey and Dobbs.
Study Tips
- Note that the opinion deliberately avoids declaring a fundamental right or specifying the level of scrutiny, which creates analytical ambiguity.
- Understand how Kennedy reframed the issue from Bowers to change the outcome.
- Consider Justice Scalia's dissent as a predictive roadmap for Obergefell.
- Be prepared to discuss whether Lawrence's reasoning survived Dobbs's emphasis on history and tradition.
Read the Full Case Analysis
View the complete brief for Lawrence v. Texas including full reasoning, doctrine, and study resources.
More Constitutional Law Dissents
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514 U.S. 549 (1995) (1995)
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
529 U.S. 598 (2000) (2000)
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
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Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
National Federation of Independent Business v. Sebelius
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Lochner v. New York
198 U.S. 45 (1905) (1905)
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
West Coast Hotel Co. v. Parrish
300 U.S. 379 (1937) (1937)
Justice Sutherland, joined by Justices Van Devanter, McReynolds, and Butler, dissented, maintaining that the minimum wage law unconstitutionally impaired the freedom of contract and that the meaning of the Constitution does not change with the shifting of economic winds.