O'Connor's concurrence
Justice O'Connor, argued the statutewas unconstitutional under the Equal Protection Clause rather thandue process and would have kept Bowers intact.
Justice Sandra Day O'Connor onlyconcurred in the judgment and wrote a concurring opinion in which sheoffered a different rationale for invalidating the Texas sodomystatute. She disagreed with the overturning of Bowers—she had beenin the Bowers majority—and disputed the court's invocation of dueprocess guarantees of liberty in this context. Rather than includingsexuality within protected liberty, she would strike down the law asviolating the equal protection clause because it criminalizedmale–male but not male–female sodomy. O'Connor maintained that asodomy law that was neutral both in effect and application might beconstitutional, but that there was little to fear because "democraticsociety" would not tolerate it for long. O'Connor noted thata law limiting marriage to heterosexual couples would pass rationalscrutiny as long as it was designed to "preserv[e] thetraditional institution of marriage" and not simply based onthe state's dislike of homosexual persons.
Scalia's dissent
Justice Antonin Scalia wrote a dissent,which Chief Justice William H. Rehnquist and Justice Clarence Thomasjoined. Scalia objected to the Court's decision to revisit Bowers,pointing out many decisions from lower courts that relied on Bowersthat might now need to be reconsidered. He noted that the samerationale used to overturn Bowers could have been used to overturnRoe v. Wade, which some of the Justices in the majority inLawrence had upheld in Planned Parenthood v. Casey (1992).Scalia also criticized the majority opinion for failing to give thesame respect to stare decisis that three of those in the majority hadinsisted on in Casey. O'Connor's concurrence noted that Scalia'sdissent conceded that if cases such as Romer v. Evans "havestare decisis effect, Texas' sodomy law would not pass scrutiny underthe Equal Protection Clause, regardless of the type of rational basisreview" applied.
Scalia wrote that if the court was notprepared to validate laws based on moral choices as it had done inBowers, state laws against bigamy, same-sex marriage, adult incest,prostitution, masturbation, adultery, fornication, bestiality, andobscenity would not prove sustainable.
He wrote that:
Today's opinion is the product of aCourt, which is the product of a law-profession culture, that haslargely signed on to the so-called homosexual agenda, by which I meanthe agenda promoted by some homosexual activists directed ateliminating the moral opprobrium that has traditionally attached tohomosexual conduct. ... [T]he Court has taken sides in the culturewar, departing from its role of assuring, as a neutral observer, thatthe democratic rules of engagement are observed.
He cited the majority opinion's concernthat the criminalization of sodomy could be the basis fordiscrimination against homosexuals as evidence that the majorityignored the views of most Americans:
So imbued is the Court with the lawprofession's anti-anti-homosexual culture, that it is seeminglyunaware that the attitudes of that culture are not obviously"mainstream"; that in most States what the Court calls"discrimination" against those who engage in homosexualacts is perfectly legal.
He continued: "Let me be clearthat I have nothing against homosexuals, or any other group,promoting their agenda through normal democratic means." Themajority's "invention of a brand-new 'constitutional right'",he wrote, showed it was "impatient of democratic change".
Thomas's dissent
Justice Thomas wrote in a separate,two-paragraph dissent that the law the Court struck down was"uncommonly silly", a phrase from Justice PotterStewart's dissent in Griswold v. Connecticut, but he voted touphold it as he could find "no general right of privacy"or relevant liberty in the Constitution. He added that if he were amember of the Texas legislature he would vote to repeal the law.
Reactions
President George W. Bush's presssecretary Ari Fleischer refused to comment on the decision, notingonly that the administration had not filed a brief in the case. Asgovernor, Bush had opposed the repeal of the Texas sodomy provision,which he called a "symbolic gesture of traditional values". After quoting Fleischer calling it "a state matter",Linda Greenhouse, writing in The New York Times, commented: "Infact, the decision today ... took what had been a state-by-statematter and pronounced a binding national constitutional principle."
The Lambda Legal's lead attorney in thecase, Ruth Harlow, stated in an interview after the ruling that "thecourt admitted its mistake in 1986, admitted it had been wrong then... and emphasized today that gay Americans, like all Americans, areentitled to full respect and equal claim to [all] constitutionalrights."
Professor Laurence Tribe has writtenthat Lawrence "may well be remembered as the Brown v. Boardof Education of gay and lesbian America". Jay Alan Sekulowof the American Center for Law and Justice has referred to thedecision as having "changed the status of homosexual acts andchanged a previous ruling of the Supreme Court ... this was a drasticrewrite".
The end result of Lawrence v. Texaswas "like the Roe v. Wade of the homosexual issue",according to Peter LaBarbera of Culture and Family Institute andAmericans for Truth about Homosexuality, an organization recognizedas a homophobic hate group by the Southern Poverty Law Center.
Subsequent cases
Sexual privacy
Age of consent laws
Lawrence invalidated age of consentlaws that differed based on sexual orientation. The day after theLawrence decision, the Supreme Court ordered the State of Kansas toreview its 1999 "Romeo and Juliet" law that reducesthe punishment for a teenager under 18 years of age who hasconsensual sexual relations with a minor no more than four yearstheir junior but explicitly excludes same-sex conduct from thesentence reduction. In 2004, the Kansas Appeals Court upheld the lawas is, but the Kansas Supreme Court unanimously reversed the lowercourt's ruling on October 21, 2005, in State v. Limon.
Consensual incest
In Muth v. Frank (2005),following Lawrence a man convicted of criminal behavior by having anincestuous relationship in Wisconsin appealed his ruling in anattempt to apply the logic of sexual privacy in Lawrence. TheSeventh Circuit declined to extend the right of privacy stated inLawrence to cases of consensual adult incest. The case wasdistinguished because parties were not similarly situated since thereis in the latter case an enhanced possibility of genetic mutation ofa possible offspring as suggested by geneticists who were witnessesat the trial.
Fornication
In Martin v. Ziherl, the SupremeCourt of Virginia ruled the state's fornication law unconstitutionalrelying on Lawrence and the right to privacy.
Teacher-student relationships
The Connecticut Supreme Court rejectedan argument based on Lawrence that a high school teacher had aconstitutional right to engage in sexual activity with hisconsent-aged students. The court rejected the teacher's privacy andliberty arguments in the context of an "inherently coerciverelationship wherein consent might not easily be refused".
Adult entertainment
Upon rehearing Williams v. Pryorafter Lawrence, the Eleventh Circuit Court of Appeals upheldAlabama's ban on the sale of sex toys. Facing comparable facts, theFifth Circuit struck down Texas's sex toy ban holding that "moralityis an insufficient justification for a statute" and"interests in 'public morality' cannot constitutionallysustain the statute after Lawrence".
Bestiality
According to Leighann Lassiter,director of animal abuse for the Humane Society of the United States,the Lawrence ruling that struck down all statutes in the UnitedStates prohibiting consensual human sexual conduct can also blockprosecution of bestiality. Issues stem from several states thatinclude human sexual conduct and bestiality in the same "anti-sodomy"statute. "Cases have been turned over on appeal because ofunclear language in the law, and often times no charges are broughtat all," said Leighann. As of 2018, 45 states have directprohibitions on bestiality, while others may prohibit it underbroader animal cruelty laws, according to the Animal Legal andHistorical Center (Michigan State University College of Law).
Same-sex marriage bans
A few months later, on November 18,2003, the Massachusetts Supreme Judicial Court ruled that same-sexcouples have a right to marry. Although deciding the case on thebasis of the state constitution, Chief Justice Margaret Marshallquoted Lawrence in its second paragraph: "Our obligation isto define the liberty of all, not to mandate our own moral code."
Aside from Massachusetts, other statecase law had been quite explicit in limiting the scope of Lawrenceand upholding state bans on same-sex marriage regulations. (SeeStandhardt v. Superior Court ex rel County of Maricopa, 77P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 821 N.E.2d 15(Ind. App. 2005); Hernandez v. Robles (7 NY3d 338 2005).)
In the first successful federal courtchallenge to a state same-sex marriage ban, Judge Vaughn Walker citedScalia's dissent in his decision in Perry v. Schwarzeneggerthat found California's Proposition 8 banning same-sex marriageunconstitutional.
United States military
The United States Court of Appeals forthe Armed Forces, the last court of appeals for courts-martial beforethe Supreme Court, ruled that Lawrence applies to Article 125 of theUniform Code of Military Justice, the article banning sodomy. It alsotwice upheld prosecutions under Article 125 when applied as necessaryto preserve good order and discipline in the armed forces.
The level of scrutiny applied inLawrence
Justice Scalia and others havenoted that the majority did not appear to apply the strict scrutinystandard of review that would be appropriate if the Lawrence majorityhad recognized a full-fledged "fundamental right".He wrote the majority, instead, applied "an unheard-of formof rational basis review that will have far-reaching implicationsbeyond this case".
Nan D. Hunter has argued that Lawrenceused a new method of substantive due process analysis, and that theCourt intended to abandon its old method of categorizing due processrights as either "fundamental" or "notfundamental" as too restrictive. Justice Souter, forexample, argued in Washington v. Glucksberg that the role ofthe Court in all cases, including unenumerated rights cases, is toensure that the government's action has not been arbitrary. JusticeStevens had repeatedly criticized tiered scrutiny and preferred amore active judicial balancing test based on reasonability.
Lower courts have read Lawrencedifferently on the question of scrutiny. In Lofton v. Secretary ofthe Department of Children and Family Services the United StatesCourt of Appeals for the Eleventh Circuit upheld a state law barringadoption of children by homosexuals, holding explicitly that Lawrencedid not apply strict scrutiny. In Witt v. Department of the AirForce, the United States Court of Appeals for the Ninth Circuitheld that Lawrence applied intermediate scrutiny.
Plaintiffs
John Lawrence died of complicationsfrom a heart ailment in 2011, aged 68. Tyron Garner died ofmeningitis in 2006, aged 39, and Robert Eubanks was beaten to deathin 2000, in a case that was never solved.