Hatton W. Sumners
Supreme Court Case Book
Ninth Amendment
1
© State Bar of Texas
Special appreciation is extended to the following people and organizations:
The inspiration of all Law-Related Education projects: Dr. Isidore Starr.
Special thanks to the Scholar Staff:
Yvonne Greenwood
Professor Jerry Perry
Dr. Mel Hailey
Dr. Jerry Polinard
Special thanks to the State Bar of Texas Law-Related Education Department for their
support and skills in making this activity guide come to life. The staff includes:
Jan L. Miller, Director
Linda DeLeon, Office Manager
Developed in 1995 and revised in 2013 by the Law-Related Education Department,
State Bar of Texas. All rights reserved. Permission is granted for these materials to be
reproduced for classroom use. No part of these materials may be reproduced in any
other form or for any other purpose without the written consent of the Department of
Public Service / Law-Related Education, State Bar of Texas.
2
© State Bar of Texas
Hatton W. Sumners
Supreme Court Case Book
Ninth Amendment
Griswold v. Connecticut (1965) ...............................................................................4
Roe v. Wade (1973) ................................................................................................9
Bowers v. Hardwick (1986) .....................................................................................16
Lawrence v. Texas (2003) .......................................................................................19
3
© State Bar of Texas
ESTELLE T. GRISWOLD, ET AL. v. STATE OF
CONNECTICUT
381 U. S. 479, 85 S.Ct. 1678, 14 L.Ed. 2d 510
Argued March 29, 1965
Decided June 7, 1965
Griswold was Executive Director of the Planned Parenthood League of Connecticut,
and Buxton, a licensed physician and professor at the Yale Medical School, served as
Medical Director for the League at its Center in New Haven. The New Haven Center
was operating from November 1 to November 10, 1961, where information, instruction,
and medical advice as to the means of preventing conception were offered to married
persons. Wives were physically examined, and the Center suggested the best
contraceptive device or material for her use. Fees were usually charged, although
some couples paid no fee. Griswold and Buxton were arrested on November 10, 1961,
for violating two state statutes.
The statutes Griswold and Buxton were accused of violating were parts of the General
Statutes of Connecticut that had been in effect since 1879:
Section 53--32: Any person who uses any drug, medicinal article or
instrument for the purpose of preventing conception shall be fined not less
than fifty dollars or imprisoned not less than sixty days nor more than one
year or be both fined and imprisoned.
Section 54--196: Any person who assists, abets, counsels, causes, hires
or commands another to commit any offense may be prosecuted and
punished as if he were the principal offender.
Both Griswold and Buxton were found guilty as accessories and fined $100 each. Their
conviction was affirmed both by the Appellate Division of the Circuit Court and the
Supreme Court of Errors for the State of Connecticut.
•
ISSUE: Does an individual's right to privacy under the Ninth Amendment
preclude the state's power to prohibit the use and prescription of contraceptive
devices by married couples?
4
© State Bar of Texas
GRISWOLD v. CONNECTICUT (1965)
Decision
Justice Douglas's opinion for the Court was relatively brief compared to the concurring
and dissenting opinions. The Court, in its seven-to-two ruling, held that the Connecticut
law forbidding use of contraceptives unconstitutionally intruded upon the right of marital
privacy. Justice Douglas explained that although the right to privacy does not appear
anywhere in writing, it exists as part of other rights given in the Constitution. Justice
Douglas wrote:
The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help
give them life and substance.... Various guarantees create zones of
privacy. The right of association contained in the penumbra of the First
Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers "in any house" in time of
peace without the consent of the owner is another facet of that privacy.
The Fourth Amendment explicitly affirms "the right of the people to be
secure in their persons, houses, papers, and effects against unreasonable
searches and seizures." The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government
may not force him to surrender to his detriment. The Ninth Amendment
provides: "The enumeration in the Constitution of certain rights, shall not
be construed to deny or disparage others retained by the people."
The present case, then, concerns a relationship lying within the zone of privacy created
by certain fundamental constitutional guarantees. Justice Douglas went on to say that
the "right of marital privacy" is even "older than the Bill of Rights." He also concluded
that:
The association of people is not mentioned in the Constitution nor in the
Bill of Rights. The right to educate a child in a school of the parents'
choice -- whether public or private or parochial -- is also not mentioned.
Nor is the right to study any particular subject or any foreign language.
Yet the First Amendment has been construed to include certain of those
rights.... we have protected forms of "association" that are not political in
the customary sense but pertain to the social, legal and economic benefit
of the members.
In a concurring opinion, Justice Goldberg agreed with the Court's opinion, but added:
Although I have not accepted the view that "due process" as used in the
Fourteenth Amendment includes all of the first eight Amendments ..., I do
agree that the concept of liberty protects those personal rights that are
fundamental, and is not confined to the specific terms of the Bill of
Rights....
In discussing the history of the Ninth Amendment, Justice Goldberg stated:
5
© State Bar of Texas
The Ninth Amendment reads, "The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained
by the people." The Amendment is almost entirely the work of James
Madison. It was introduced in Congress by him and passed the House
and Senate with little or no debate and virtually no change in language. It
was proffered to quiet expressed fears that a bill of specifically
enumerated rights could not be sufficiently broad to cover all essential
rights and that the specific mention of certain rights would be interpreted
as a denial that others were protected....
The Ninth Amendment simply shows the intent of the Constitution's
authors that other fundamental personal rights should not be denied such
protection or disparaged in any other way simply because they are not
specifically listed in the first eight constitutional amendments.... Nor am I
turning somersaults with history in arguing that the Ninth Amendment is
relevant in a case dealing with a State's infringement of a fundamental
right. While the Ninth Amendment—and indeed the entire Bill of Rights—
originally concerned restrictions upon federal power, the subsequently
enacted Fourteenth Amendment prohibits the States as well from
abridging fundamental personal liberties. And, the Ninth Amendment, in
indicating that not all such liberties are specifically mentioned in the first
eight amendments, is surely relevant in showing the existence of other
fundamental personal rights, now protected from state, as well as federal,
infringements. In sum, the Ninth Amendment simply lends strong support
to the view that the "liberty" protected by the Fifth and Fourteenth
Amendments from infringement by the Federal Government or the States
is not restricted to rights specifically mentioned in the first eight
amendments.
Goldberg quoted from the Marbury v. Madison decision, stating:
While this Court has had little occasion to interpret the Ninth Amendment,
"(I)t cannot be presumed that any clause in the constitution is intended to
be without effect."
Justice Harlan wrote a separate concurring opinion, in which he stated in part:
I fully agree with the judgment of reversal, but find myself unable to join
the Court's opinion. The reason is that it seems to me to evince an
approach to this case very much like that taken by my Brothers Black and
Stewart in the dissent, namely: the Due Process Clause of the Fourteenth
Amendment does not touch this Connecticut statute unless the enactment
is found to violate some right assured by the letter ... of the Bill of Rights.
Justice Black wrote a dissenting opinion and was joined by Justice Stewart:
6
© State Bar of Texas
I do not to any extent whatever base my view that this Connecticut law is
constitutional on a belief that the law is wise or that its policy is a good
one. In order that there may be no room at all to doubt why I vote as I do,
I feel constrained to add that the law is every bit as offensive to me as it is
my Brethren of the majority and my Brothers Harlan, White and Goldberg
who, reciting reasons why it is offensive to them, hold it unconstitutional....
Had the doctor defendant here, or even the nondoctor defendant, been
convicted for doing nothing more than expressing opinions to persons
coming to the clinic that certain contraceptive devices, medicines or
practices would do them good and would be desirable, or for telling people
how devices could be used, I can think of no reasons at this time why their
expressions of views would not be protected by the First and Fourteenth
Amendments, which guarantee freedom of speech....
The two defendants here were active participants in an organization which
gave physical examinations to women, advised them what kind of
contraceptive devices or medicines would most likely be satisfactory for
them, and then supplied the devices themselves, all for a graduated scale
of fees, based on the family income. Thus these defendants admittedly
engaged with others in a planned course of conduct to help people violate
the Connecticut law....
Referring to the discussion of the right of privacy in the opinions of the majority, Justice
Black wrote:
The Court talks about a constitutional "right of privacy" as though
there is some constitutional provision or provisions forbidding any
law ever to be passed which might abridge the "privacy" of
individuals. But there is not. There are, of course, guarantees in
certain specific constitutional provisions which are designed in part
to protect privacy at certain times and places with respect to certain
activities. Such, for example, is the Fourth Amendment's guarantee
against "unreasonable searches and seizures." But I think it belittles
that Amendment to talk about it as though it protects nothing but
"privacy." To treat it that way is to give it a niggardly interpretation,
not the kind of liberal reading I think any Bill of Rights provision
should be given. The average man would very likely not have his
feelings soothed any more by having his property seized openly than
by having it seized privately and by stealth. He simply wants his
property left alone. And a person can be just as much, if not more,
irritated, annoyed and injured by an unceremonious public arrest by
a policeman as he is by a seizure in the privacy of his office or
home.... For these reasons I get nowhere in this case by talk about a
constitutional "right or privacy" as an emanation from one or more
constitutional provisions. I like my privacy as well as the next one,
but I am nevertheless compelled to admit that government has a
7
© State Bar of Texas
right to invade it unless prohibited by some specific constitutional
provision. For these reasons I cannot agree with the Court's
judgment and the reasons it gives for holding this Connecticut law
unconstitutional.
In his dissent, Justice Stewart called the Connecticut law an "uncommonly silly law" and
one that "is obviously unenforceable." However, he concluded that "we are not asked in
this case to say whether we think this law is unwise, or even asinine. We are asked to
hold that it violates the U. S. Constitution. And that I cannot do." Regarding the
application of the Ninth Amendment to the case, Justice Stewart said:
... to say that the Ninth Amendment has anything to do with this case is to
turn somersaults with history. The Ninth Amendment, like its companion
the Tenth, which this Court held "states but a truism that all is retained
which has not been surrendered," was framed by James Madison and
adopted by the States simply to make clear that the adoption of the Bill of
Rights did not alter the plan that the Federal Government was to be a
government of express and limited powers, and that all rights and powers
not delegated to it were retained by the people and the individual States.
Until today no member of this Court has ever suggested that the Ninth
Amendment meant anything else, and the idea that a federal court could
ever use the Ninth Amendment to annul a law passed by the elected
representatives of the people of the State of Connecticut would have
caused James Madison no little wonder.
What provision of the
Constitution, then, does make this state law invalid? The Court says it is
the right of privacy "created by several fundamental constitutional
guarantees." With all deference, I can find no such general right of privacy
in the Bill of Rights, in any other part of the Constitution, or in any case
ever before decided by this Court.
8
© State Bar of Texas
JANE ROE, et al. v. HENRY WADE
410 U. S. 113, 93 S.Ct. 705, 35 L.Ed. 2d 147
Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973
Jane Roe, a single woman who was living in Dallas County, Texas, began this federal
action in March 1970 against the District Attorney of Dallas County. She alleged in the
suit that she was unmarried and pregnant, that she wished to terminate her pregnancy
by an abortion "performed by a competent, licensed physician, under safe, clinical
conditions," that she was unable to get an abortion in Texas because her life did not
appear to be threatened by the pregnancy, and that she could not afford to travel to
another jurisdiction in order to get a legal abortion under safe conditions. She claimed
that the Texas statutes were unconstitutionally vague and that they violated her right of
personal privacy, protected by the First, Third, Fourth, Fifth, Ninth, and Fourteenth
Amendments.
The Texas statutes in question were:
Article 1191.
If any person shall designedly administer to a pregnant woman or
knowingly procure to be administered with her consent any drug or
medicine, or shall use towards her any violence or means whatever
externally or internally applied, and thereby procure an abortion, he shall
be confined in the penitentiary not less than two nor more than five years;
if it be done without her consent, the punishment shall be doubled. By
"abortion" is meant that the life of the fetus or embryo shall be destroyed
in the woman's womb or that a premature birth thereof be caused.
Article 1192.
Whoever furnished the means for procuring an abortion knowing the
purpose intended is guilty as an accomplice.
Article 1193.
If the means used shall fail to produce an abortion, the offender is
nevertheless guilty of an attempt to produce abortion, provided it be
shown that such means were calculated to produce that result, and shall
be fined not less than one hundred nor more than one thousand dollars.
Article 1194.
If the death of the mother is occasioned by an abortion so produced or by
an attempt to effect the same it is murder.
Article 1195.
Whoever shall during parturition of the mother destroy the vitality or
life in a child in a state of being born and before actual birth, which
9
© State Bar of Texas
child would otherwise have been born alive, shall be confined in the
penitentiary for life or for not less than five years.
Article 1196.
Nothing in this chapter applies to an abortion procured or attempted by
medical advice for the purpose of saving the life of the mother.
The U. S. District Court for the Northern District of Texas, relying in part on the Supreme
Court's decision in Griswold v. Connecticut (1965), struck down the state statute. The
District Court held that the "fundamental right of single women and married persons to
choose when to have children is protected by the Ninth Amendment, through the
Fourteenth Amendment" and that Texas criminal abortion statutes were void because
they were both unconstitutionally vague and constituted an overbroad infringement of
the plaintiff's Ninth Amendment rights. The case was then appealed.
•
ISSUE: Is there a right of privacy in the Ninth Amendment? Is pregnancy a
fundamental right? Does the state have a compelling reason to regulate
abortions? (Issues according to Sarah Weddington.)
10
© State Bar of Texas
ROE v. WADE (1973)
Decision
The Supreme Court, in what is probably the most controversial decision handed down
by the Burger Court, struck down the Texas abortion laws but held that states have two
interests that outweigh a pregnant woman's right to choose to abort a fetus at specific
points in the pregnancy. The state has an interest in the health of the mother, which
becomes compelling at the end of the first trimester. At that point, the state may
regulate abortion to the extent that the regulation reasonably relates to the protection of
maternal health.
The state also has interest in potential human life, which becomes compelling at the
point of fetal viability—the end of the second trimester—and at that point the state may
prohibit abortions.
Writing for the seven-to-two Court, Justice Blackmun emphasized the difficult task of
deciding this case:
One's philosophy, one's experiences, one's exposure to the raw
edges of human existence, one's religious training, one's attitudes
toward life and family and their values, and the moral standards one
establishes and seeks to observe, are all likely to influence and to
color one's thinking and conclusions about abortion. In addition,
population growth, pollution, poverty, and racial overtones tend to
complicate and not to simplify the problem. Our task, of course, is to
resolve the issue by constitutional measurement, free of emotion
and of predilection. We seek earnestly to do this....
Justice Blackmun then looked at the history of abortion laws, not only in Texas, but in
the world. He traced abortion practices to Greek and Roman times, where it was
"resorted to without scruple." He also found that ancient religions did not bar abortion.
In examining English common law, he said that abortion performed before "quickening,
the first recognizable movement of the fetus ... was not an indictable offense." In fact,
England's first criminal abortion statute came in 1803, and this law disappeared in 1837
and did not appear again until 1861.
By the 1950s in the U. S., a large majority of the states banned abortion unless done to
save or preserve the life of the mother. Justice Blackmun wrote:
It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century,
abortion was viewed with less disfavor than under most American statutes
currently in effect.
11
© State Bar of Texas
Justice Blackmun examined the right of privacy used by the lower court in making its
decision:
[Although] the Constitution does not explicitly mention any right of privacy
... the Court has recognized that a right of personal privacy, or a
guarantee of certain areas or zones of privacy, does exist under the
Constitution....
This right of privacy, whether it be founded in the Fourteenth
Amendment's concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court determined, in the Ninth
Amendment's reservations of rights to the people, is broad enough to
encompass a woman's decision whether or not to terminate her
pregnancy....
We, therefore, conclude that the right of personal privacy includes the
abortion decision, but that this right is not unqualified and must be
considered against important state interests in regulation.
In determining whether a fetus is a person within the meaning of the Fourteenth
Amendment, Blackmun wrote:
The Constitution does not define "person" in so many words. ...
[T]he Fourteenth Amendment contains three references to "person."
The first, in defining "citizens," speaks of "persons born or
naturalized in the U. S...” The word also appears both in the Due
Process Clause and in the Equal Protection Clause.... [T]he use of
the word is such that it has application only postnatally. None
indicates, with any assurance, that it has any possible prenatal
application.... [This] persuades us that the word "person," as used in
the Fourteenth Amendment, does not include the unborn....
In areas other than criminal abortion, the law has been reluctant to
endorse any theory that life, as we recognize it, begins before life birth or
to accord legal rights to the unborn except in narrowly defined situations
and except when the rights are contingent upon life birth.... In short, the
unborn have never been recognized in the law as persons in the whole
sense.
Justice Blackmun summarized what has become known as the Trimester Test as
follows:
1. A state criminal abortion statute of the current Texas type, that excepts
from criminality only a life-saving procedure on behalf of the mother,
without regard to pregnancy stage and without recognition of the other
interests involved, is violative of the Due Process Clause of the Fourteenth
Amendment.
12
© State Bar of Texas
a) For the stage prior to approximately the end of the first
trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's
attending physician.
b) For the stage subsequent to approximately the end of the
first trimester, the State, in promoting its interest in the health
of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal
health.
c) For the stage subsequent to viability, the State in
promoting its interest in the potentiality of human life may, if
it chooses, regulate and even proscribe, abortion except
where it is necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in
the preceding paragraphs of this Part XI of this opinion, to mean only a
physician currently licensed by the State, and may proscribe any abortion
by a person who is not a physician as so defined.
Justice Blackmun concluded:
Our conclusion that Art. 1196 is unconstitutional means, of course, that
the Texas abortion statutes, as a unit, must fall.
Justice Stewart concurred, but stated that "There is no constitutional right of privacy, as
such. (The Fourth) Amendment protects individual privacy against certain kinds of
governmental intrusion, but its protections go further, and often have nothing to do with
privacy at all ...."
Chief Justice Burger and Justice Douglas also filed concurring opinions.
Justice Rehnquist filed a dissenting opinion, in which he stated:
While the opinion ... commands my respect, I find myself
nonetheless in fundamental disagreement with those parts of it that
invalidate the Texas statute in question, and therefore dissent....
I have difficulty in concluding, as the Court does, that the right of "privacy"
is involved in this case....
The fact that a majority of the States reflecting, after all the majority
sentiment in those States, have had restrictions on abortions for at least a
century is a strong indication ... that the asserted right to an abortion is not
"so rooted in the traditions and conscience of our people as to be ranked
as fundamental."
13
© State Bar of Texas
The Texas statute is struck down in toto, even though the Court
apparently concedes that at later periods of pregnancy Texas might
impose these selfsame statutory limitations on abortion.
My understanding of past practice is that a statute found to be invalid as
applied to a particular plaintiff, but not unconstitutional as a whole, is not
simply "struckdown" but is, instead, declared unconstitutional as applied to
the fact situation before the Court.
Justice White also dissented.
FOLLOW-UP: Norma McCorvey (Jane Roe in Roe v. Wade) still lives in Dallas. In
1995 she was the administrator of an abortion clinic. In 1987, she revealed in an
interview with columnist Carl Rowan that her pregnancy had not been the result of a
rape. In 2000, she had stopped working at the abortion clinic and was an active
participant in a pro-life group.
Sarah Weddington, Jane Roe's attorney, reported that she was informed of the decision
when a reporter called her a few seconds before receiving a collect telegram from the
Court. After this case, she held several elected and appointed offices in Texas and U.
S. politics. In 1986 Weddington returned to Austin, Texas and opened
her own law practice.
NOTES: In 1992, the U. S. Supreme Court heard arguments in the case of Casey v.
Planned Parenthood of Southeastern Pennsylvania. The justices, in this case, declined
to overturn Roe but broadened the state’s rights to limit abortion. In a five-to-four
decision, the Court upheld a requirement for counseling by doctors on risks of abortion
and alternatives, a 24-hour waiting period, consent by one parent or judicial approval of
a minor’s abortion, and a requirement that doctors keep detailed records of abortions
and the reasons for performing late-term abortions. It overturned a requirement that a
married woman notify her husband before receiving an abortion.
In 2000, the Supreme Court heard Stenberg v. Carhart, which questioned so-called
“partial birth abortions.” Nebraska was one of approximately thirty states that had
statutes regarding this procedure. The Nebraska law forbad partial birth abortions
unless they were “necessary to save the life of the life of the mother.” Dr. Carhart, a
Nebraska physician who performed abortions, initiated a federal lawsuit to get the state
statute declared unconstitutional.
In this highly controversial case, the Supreme Court decision was a five-to-four split,
with eight of the nine justices writing opinions. The Court renewed its support of the
constitutional right to an abortion by striking down the Nebraska statute, stating that the
law was so broadly written that it could be applied to even the most common method of
abortion.
In 2003 Congress enacted, and President Bush signed into law, the Partial-Birth
Abortion Ban Act, which forbad two specific types of late-term abortions. In 2007 the
14
© State Bar of Texas
Supreme Court heard Gonzales v. Carhart, which questioned the validity of this law
because it lacked a health exception. In a five-to-four decision this ban was upheld by
the Court. This was the first time the Supreme Court banned a specific procedure in a
case over how—not whether—to perform an abortion.
15
© State Bar of Texas
BOWERS, ATTORNEY GENERAL OF GEORGIA v.
MICHAEL HARDWICK
478 U. S. 186, No. 85-140
Argued March 31, 1986
Decided June 30, 1986
In August 1982, Michael Hardwick was living in Atlanta, Georgia, when the city police
went to his apartment to serve him a warrant for failing to pay a fine. When they were
admitted into the house by one of Hardwick’s friends, the police officers found Hardwick
in bed with another man. Since homosexual activity violated the Georgia anti-sodomy
law, the officers arrested Hardwick. If convicted, he faced up to a twenty-year prison
sentence. After a preliminary hearing, the District Attorney decided not to present the
matter to the grand jury unless further evidence developed.
Even though he was not charged with a crime, Hardwick decided to challenge the
Georgia law in federal court. He attacked the statute because he believed that sexual
activity between consenting adults was none of the state’s business and that as a
practicing homosexual he was in imminent danger of arrest. The federal district court
dismissed the suit for failure of the plaintiff to state a claim. A divided panel of the Court
of Appeals for the Eleventh Circuit reversed. The appellate court relied on the Ninth
Amendment and the Due Process Clause of the Fourteenth Amendment, holding that
the Georgia statute violated Hardwick’s constitutional right of privacy. Other courts of
appeals had arrived at opposite judgments on the same issue. Bowers, the Attorney
General of Georgia, appealed this judgment to the U. S. Supreme Court.
•
ISSUE: Does a state sodomy law, which makes homosexual conduct a criminal
act, violate an individual’s right of privacy, as implied in the Ninth Amendment,
and the Due Process Clause of the Fourteenth Amendment?
16
© State Bar of Texas
BOWERS v. HARDWICK (1986)
Decision
A bitterly divided Supreme Court, in a five-to-four decision, upheld the Georgia statute.
The decision stopped short of ruling that homosexual conduct was illegal, concluding
instead that a state had the constitutional power to regulate homosexual behavior.
Justice White wrote the majority opinion, in which Chief Justice Burger and Associate
Justices Powell, Rehnquist, and O’Connor joined him. Justice White began by
explaining the issue in the case:
This case does not require a judgment on whether laws against sodomy
between consenting adults in general, or between homosexuals in
particular, are wise or desirable. It raises no question about the right or
propriety of state legislative decisions to repeal their laws that criminalize
homosexual sodomy, or of state-court decisions invalidating those laws on
state constitutional grounds. The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in
sodomy and hence invalidates the laws of the many States....
The majority opinion continued:
... [R]espondent would have us announce ... a fundamental right to
engage in homosexual sodomy. This we are quite unwilling to do. It is
true that despite the language of the Due Process Clauses of the Fifth and
Fourteenth Amendments, which appears to focus only on the process by
which life, liberty, or property is taken, the cases are legion in which those
Clauses have been interpreted to have substantive content, subsuming
rights that to a great extent are immune from federal or state regulation or
proscription....
Respondent ... asserts that the result should be different where the
homosexual conduct occurs in the privacy of the home. He relies on
Stanley v. Georgia (1969), where the Court held that the First Amendment
prevents conviction for possessing and reading obscene material in the
privacy of one’s home: “If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his house, what
books he may read or what films he may watch.”
Stanley did protect conduct that would not have been protected outside
the home, and it partially prevented the enforcement of state obscenity
laws; but the decision was firmly grounded in the First Amendment. The
right pressed upon us here has no similar support in the text of the
Constitution, and it does not qualify for recognition under the prevailing
principles for construing the Fourteenth Amendment. Its limits are also
difficult to discern. Plainly enough, otherwise illegal conduct is not always
immunized whenever it occurs in the home. Victimless crimes, such as
17
© State Bar of Texas
the possession and use of illegal drugs, do not escape the law where they
are committed at home. Stanley itself recognized that its holding offered
no protection for the possession in the home of drugs, firearms, or stolen
goods. And if respondent’s submission is limited to the voluntary sexual
conduct between consenting adults, it would be difficult, except by fiat, to
limit the claimed right to homosexual conduct while leaving exposed to
prosecution adultery, incest, and other sexual crimes even though they
are committed in the home. We are unwilling to start down that road.
Justice White concluded his majority opinion by stating that the majority of the voters in
Georgia agree that homosexual conduct is immoral and unacceptable, and twenty-four
other states also have sodomy laws.
In order to emphasize his view that there is no fundamental right to commit homosexual
sodomy, Chief Justice Burger wrote a concurring opinion. In another concurring opinion,
Justice Powell agreed with the majority that there is no fundamental right to engage in
homosexual conduct, but he suggested that the respondent might be protected by the
Eighth Amendment in this case. Powell stated:
... The Georgia statute at issue ... authorizes a court to imprison a person
for up to 20 years for a single private, consensual act of sodomy. In my
view, a prison sentence for such conduct—certainly a sentence of long
duration—would create a serious Eighth Amendment substantive right....
In his dissenting opinion, which was joined by Justices Brennan, Marshall, and Stevens,
Blackmun called the decision “revolting.” He wrote, “The statute at issue ... denies
individuals the right to decide for themselves whether to engage in particular forms of
private, consensual sexual activity.”
18
© State Bar of Texas
JOHN LAWRENCE v. TEXAS
02-0102
Argued March 26, 2003
Decided June 26, 2003
In 1986, by a five-to-four vote in the case of Bowers v. Hardwick, the United States
Supreme Court upheld a Georgia anti-sodomy law. At the time of that decision, twentyfive states had such laws. By 1998, only thirteen states still had such laws on the
books, and only four of those thirteen states, including Texas, applied sodomy laws
exclusively to same-sex couples.
This case began in Houston in 1998 when the police, responding to a reported weapons
disturbance, entered the apartment of John Geddes Lawrence through an unlocked
door. Lawrence and Tyron Garner were arrested for violating the Texas anti-sodomy
law. Both men were adults at the time of the alleged offense, and there is no question
that their conduct was in private and consensual. After pleading “no contest,” the two
men were each fined $200 and spent a night in jail for the misdemeanor charge. The
neighbor was later convicted of filing a false report.
Lawrence and Garner challenged the constitutionality of the Texas law and lost in the
intermediate appellate court. When the Texas Supreme Court refused to hear the case,
they appealed to the United States Supreme Court, which accepted the case under a
writ of certiorari.
•
ISSUE: Does the Texas anti-sodomy statute violate the Ninth Amendment and
the Due Process Clause of the Fourteenth Amendment, when consenting adults
commit the act in the privacy of one’s home?
Does an anti-sodomy law, that applies exclusively only to same-sex couples,
violate the Fourteenth Amendment Equal Protection Clause?
19
© State Bar of Texas
JOHN LAWRENCE v. TEXAS
Decision
The Supreme Court overturned the Texas anti-sodomy law by a vote of six-to-three, with Justice
Kennedy writing the majority opinion. Kennedy declared, “The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and private life of the
individual.” Justices Stevens, Souter, Ginsburg and Breyer joined Kennedy in full. Justice
O’Connor agreed with the outcome of the case but not all of Kennedy’s rationale. Kennedy
wrote:
Liberty protects the person from unwarranted government intrusions
into a dwelling or other private places. In our tradition, the State is
not omnipresent in the home. And there are other spheres of our
lives and existence, outside the home, where the State should not be
a dominant presence….
Kennedy explained that the nation’s laws and traditions in the past years show an emerging
awareness that privacy gives substantial protection to adults in deciding how to conduct their
personal lives concerning sexual matters. He explained that, although twenty-five states had
sodomy laws at the time of the Bowers ruling, “Laws prohibiting sodomy do not seem to have
been enforced against consenting adults acting in private.” Kennedy continued:
The present case does not involve minors. It does not involve
persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter. The case does
involve two adults who, with full and mutual consent from each
other, engaged in sexual practices common to the homosexual
lifestyle. 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. Their right to liberty
under the Due process Clause gives them the full right to engage in
their conduct without intervention of the government….
Kennedy focused on sexual relations but singled out the home as the most private of places.
He also referred to international law in a way that could influence future disputes. He noted that
the European Court of Human Rights and other nations recognize the right of gay adults to
engage in intimate, consensual conduct.
By a separate five-to-four vote, the Supreme Court took the rare step of reversing one of its own
decisions, Bowers v. Hardwick. In 1986 the Court had upheld a Georgia sodomy law and
declared that homosexuals have no constitutional right to engage in sodomy in private.
“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,” Justice Kennedy said.
Justice O’Connor, who was part of the five-to-four majority in Bowers v. Hardwick, did not join
20
© State Bar of Texas
the majority in overruling it. But she provided the sixth vote for overturning the Texas sodomy
law in a forcefully written separate opinion that attacked the law under the Equal Protection
Clause of the Fourteenth Amendment because it made “deviate sexual intercourse” a crime only
between same-sex couples and not for heterosexuals. O’Connor stated:
A law branding one class of persons as criminal solely based on the
State’s moral disapproval of that class and the conduct associated
with that class runs contrary to the values of the Constitution and
the Equal Protection Clause, under any standard of review….
In a scathing dissent, conservative Justice Scalia accused the Court of having “largely
signed on to the so-called homosexual agenda.” He explained, “Texas’ prohibition of
sodomy neither infringes a ‘fundamental right’ … nor is supported by a rational relation
to … a legitimate state interest, nor denies the equal protection of the law.” Scalia
continued:
One of the most revealing statements in today’s opinion is the Court’s grim
warning that the criminalization of homosexual conduct is “an invitation to
subject homosexual persons to discrimination both in the public and in the
private spheres.” It is clear from this that the Court has taken sides in the
culture war, departing from its role of assuring, as neutral observer, that
the democratic rules of engagement are observed. Many Americans do
not want persons who openly engage in homosexual conduct as partners
in their business, as scoutmasters for their children, as teachers in their
children’s schools, or as boarders in their home. They view this as
protecting themselves and their families from a lifestyle that they believe to
be immoral and destructive.
Scalia said the decision “effectively decrees the end of all morals legislation” and
“leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”
Justice Scalia answered Justice O’Connor’s Equal Protection argument by stating that
the law “applies equally to all persons.
Men and women, heterosexual and
homosexual, are all subject to its prohibition of deviate sexual intercourse with someone
of the same sex.”
Scalia took the uncommon step of reading his dissent from the bench, and his dissent
was also unusual in another way—it was twenty-one pages long, compared to eighteen
pages for the majority opinion. Chief Justice Rehnquist and Justice Thomas signed
Scalia’s dissent.
Justice Thomas also wrote separately to say that while he considers the Texas law at
issue “uncommonly silly,” he could not agree to strike it down because he found no
general right to privacy in the Constitution. He wrote:
21
© State Bar of Texas
If I were a member of the Texas Legislature, I would vote to repeal it. Punishing
someone for expressing his sexual preference … does not appear to be a worthy
way to expend valuable law enforcement resources. Notwithstanding this, I
recognize that as a member of this Court I am not empowered to help petitioners
and others similarly situated.
22
© State Bar of Texas