With Liberty and Privacy for All
Lawrence v. Texas was never really about queer sex. It was about literally keeping the government away from our bedrooms and out of everybody's pants. CisHets, that means you, too.
If I were to say “sodomy,” what’s the first thing that likely comes to mind after some of y'all stop blushing and squirming?
Probably queer men.
Fair enough, but the legal definition of sodomy in the United States includes much more than what’s implied by eggplant and peach emojis. If you’ve ever engaged in any kind of oral or anal sex, those cherry-picked Bible verses and protest signs are technically referring to you, too. Yes, even if you’re cisgender and heterosexual. Take all the time you need to come to terms with that, and maybe delete your browser history.
Queer people have constantly been told to “keep it in the bedroom” when it comes to sexual intimacy. A couple of guys who did exactly that still got arrested for it in a swatting incident fueled by jealousy, homophobia, and racism. Lawrence v. Texas (2003) is best known for nationally legalizing “gay sex,” but its full scope is a landmark verdict about privacy, equal protection, and due process rights for people of all sexes and orientations.
All of which is exactly why Republicans hate it enough to want to overturn it.
The Lowdown on Lawrence
Robert Eubanks had a friend named John Lawrence and an ex-lover named Tyron Garner. On September 17, 1998, the three men were spending an evening together at Lawrence’s apartment in Houston, TX. Eubanks, who evidently hadn’t quite moved on from his breakup with Garner, became angry that Garner was flirting with Lawrence. Eubanks left the apartment after telling the other two men that he was going out to buy soda. What he really did was call the police to make a false claim that “a black male was going crazy in the apartment and he was armed with a gun.”
When officers arrived, Eubanks directed them to Lawrence’s unlocked second-floor apartment. All four responding officers gave different accounts about what happened next. Deputy Joseph Quinn claimed he entered Lawrence’s bedroom, turned on the light, saw Lawrence and Garner actively engaging in anal sex, and that they continued to do so for over a minute with police officers present in the room (That's quite the vivid imagination you've got there, buddy.) Two other officers said they did not witness any form of sexual intercourse at all. Eubanks confessed at the scene that he lied about Garner having a gun.
Deputy Quinn wasn’t about to let a little thing like lack of corroboration get in the way of his homophobic witch hunt. He called the Assistant District Attorney to ask if sodomy was still illegal if it took place inside a private residence. The ADA said yes, and Lawrence and Garner were arrested for “deviant sex” under Chapter 21, Section 21.06 of the Texas Penal Code, also known as the Homosexual Conduct Law. Lawrence was reportedly angry and uncooperative with police throughout the arrest and intake. Garner, already having the audacity to be both Black and queer at the same time, remained at least outwardly calm. Lawrence and Garner pleaded no contest to the charges and were both fined. Eubanks was later convicted of filing a false report (which could easily have gotten Garner killed) and spent 15 days in jail.
Due Process and Equal Protection
The Supreme Court of the United States (SCOTUS) had ruled years earlier in Bowers v. Hardwick (1986) that “[t]he Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” State or local laws criminalizing consensual sodomy were not a Constitutional violation, even if the act occurred in the privacy of the home. In fact, a state could legally regulate or ban “any kind of private sexual conduct between consenting adults” according to the Bowers ruling.
When Lawrence made its way to SCOTUS in 2003, the defense attorneys argued two main points:
Texas’s “Homosexual Conduct Law” violated the Fourteenth Amendment’s Equal Protection Clause by criminalizing sexual intimacy by same-sex couples, but not identical behavior by different-sex couples; and
Criminal convictions for adults engaging in private, consensual sexual intimacy violate their vital interests in liberty and privacy protected under the Fourteenth Amendment’s Due Process Clause.
In a 6-3 ruling, SCOTUS found that the Defendants’ “right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government,” and that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” The Lawrence opinion also cited Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) as precedents for due process protections to include the right to privacy and unwarranted government intrusion. Griswold overturned bans on the distribution, access, and use of contraceptives for married people, and Eisenstadt extended that decision to unmarried individuals based on the Equal Protection Clause. To help explain the reasoning of how the Court reached its decision, Justice Kennedy wrote:
“It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’ Planned Parenthood of Southeastern Pa. v. Casey (1992).”
I deeply regret to say those pretty words have already become collateral damage to the loss of constitutionally protected abortion rights. When Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade two years ago, it also cancelled out Casey. In matters of privacy and bodily autonomy, SCOTUS now defines "the liberty of all" based on a moral code that classified Black people as chattel, women as property of their husbands, and queerness as a capital offense.
The landmark precedents set in Rowe, Casey, Lawrence, Griswold, Eisenstadt, and more recently in Obergefell v. Hodges (2015) and Pavan v. Smith (2017) all center on the principle of substantive due process, which is something that Justice Clarence Thomas in particular considers "demonstrably erroneous" and cannot abide. In his concurring opinion in Dobbs, he wrote that future SCOTUS cases should be used as an opportunity to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” as a matter of “duty to correct the error established in those precedents.”
We already know that without Rowe and Casey, abortion and reproductive justice rights have become a geography-based minefield in which some pregnant people are forced to carry non-viable and/or life-threatening pregnancies to term, while some others exhaust every resource they have on traveling to safer states to access available care options. But what happens if Justice Thomas gets his way, and the other substantive due process rights precedents are erased?
The end of Griswold and Eisenstadt would put the right to distribute, access, and use birth control medications and devices in the hands of state legislatures run by people who can’t find the clitoris on an anatomy diagram and think taking Plan B is tantamount to murder. Overturning Pavan would mean that same-sex couples no longer have a guaranteed right to be listed on their children’s birth certificates, a move that would shatter their custody, visitation, and inheritance rights. Repealing Obergefell would mean that new same-sex marriages would no longer be legal in 35 states (existing same-sex marriages and those conducted in other, affirming states would be protected, at least for now, by the Respect for Marriage Act.)
So, what does all that have to do with sodomy? One word: privacy. Lawrence v. Texas was never really about anal sex. It was about literally keeping the government out of your bedroom and away from hassling you over what (or who) was in your pants. Privacy and bodily autonomy are critical civil and human rights for everyone, regardless of gender or sexual orientation. (Yes, CisHets, that means you too.) All of that is jeopardized, for everyone, by a Supreme Court Justice who “can find [neither in the Bill of Rights nor any other part of the Constitution, a] general right of privacy,” but can convince a majority of the nation’s highest court to agree with him.
Individual Impacts of Criminalized Sodomy
If Lawrence is ever overturned, an assortment of private, consensual acts of physical intimacy would again become illegal in 14 states. Giving or receiving anilingus, cunnilingus, or fellatio, the use of insertable sex toys on another person, and anal sex are all still technically considered crimes against nature in my home state of North Carolina. The Lawrence opinion is the only thing that prevents prosecution of these acts as Class I felonies (the same category of crime as running a drug lab out of your dwelling place) punishable by up to two years in prison.
90s-Era Me laughed this off, thinking “who on Earth is gonna come barging through my bedroom door to arrest me over where I put my mouth or my AAA batteries?” I didn’t know then what would happen to John Lawrence and Tyron Garner, but I sure as hell understood that nobody could find out about that girl I kissed under the bleachers at the Homecoming football game, or what my college girlfriend and I got up to in her dorm room.
Come the new millennium, I learned the hard way about how North Carolina and other states used their anti-sodomy laws in family court proceedings to deny or restrict child custody and visitation rights. The only thing that kept an already knock-down, drag-out divorce and custody dispute from being utterly disastrous was the principle of mutually assured destruction. If my ex-spouse had decided to tell the court about my sexual history with female partners, I had more receipts than a CVS store to prove his, shall we say, informed and enthusiastic consent.
Let's say that at some future date, Lawrence does get overturned, and Hypothetical You is convicted of breaking your state's reactivated anti-sodomy laws. First, there's the not-insignificant matter of having a criminal record. A misdemeanor conviction stays with you for life unless you can successfully petition the court for an expungement. Any future convictions for other crimes may face enhanced sentencing, as you are now considered a repeat offender. If an employment or lease application asks whether you have been convicted of a crime, your choices are to be honest and hope for sympathy or lie and hope the background check isn’t thorough enough to catch you. Having a misdemeanor on your criminal record may also disqualify you from certain professional positions and elected or appointed offices. It can also negatively affect your immigration status.
If sodomy is a felony in your state, you're in for a whole different level of hurt. You'll be barred from even more employment opportunities and will lose certain professional licenses. You're banned from military enlistment and will have difficulty enrolling at many colleges or universities. Housing options will be much more limited. You will likely not be approved as a foster or adoptive parent, and any custody or visitation arrangements you have with your biologically-related children may be impacted. Federal law prohibits felons from owning or possessing a firearm, and your voting rights will be restricted in most states. Idaho, South Carolina and Mississippi still require people who were convicted of consensual sodomy pre-Lawrence to register as sex offenders.
Broader Implications
Overturning Lawrence could undermine laws and policies protecting LGBTQ+ people from discrimination in employment, housing, public accommodation, healthcare, and education. Sexual orientation is considered a federally protected class (for now), but state laws that criminalize same-sex intimacy would create an end run around identity by focusing on behavior. This would become a secular extension of religious doctrines that treat same-sex relationships and physical intimacy as “intrinsically disordered” and demand celibacy in exchange for conditional tolerance.
Censorship would also become an even more pressing issue. Existing nationwide efforts to ban classroom discussion of sexual orientation and gender identity, censor school curricula and library books, and prohibit student-led Gender and Sexuality Alliance clubs would no longer center on religious-based objections, but on avoiding the promotion of criminal activity. The same would apply to the already-escalating efforts to censor and suppress queer-themed social media and entertainment content. What faster and easier way is there to stigmatize and erase any literary, historical, artistic, or cultural value from queer lives and stories that to lump it all in with exploitation and pornography?
My Predictions
I don’t think Lawrence is immediately next on the anti-LGBTQ+ judicial hit list. Speaking strictly about landmark due process cases, I think Obergefell would be a bigger and more likely first target. If the goal is to demoralize queer people and pander to Christian Nationalists, why settle for re-criminalizing a handful of consensual sex acts when you could instead make 23 million U.S. residents into second-class citizens again?
I mean, sure, you'd also create grand-scale legal chaos as legislatures and lawyers spend the next few years trying to figure out what to do about tax codes, estate planning benefits, child custody and survivorship rights, Social Security and disability benefit eligibility, health insurance coverage, and the right to medical decision-making or hospital visitation for same-sex partners both in their home states and when traveling. But if you’re a Republican in a deep red district looking to replace your soul with right wing political action committee endorsements and evangelical donor dollars, all of that is a feature, not a glitch.
I’m not saying all of this to freak anybody out. I want to remind people not just of the odds, but also the stakes in our upcoming election cycles. We do not have time for panic or apathy, and we cannot afford despair. Since the concept of legal precedent is more of a vibe than a binding principle these days, we cannot trust that even more due process decisions won’t be targeted.
LGBTQ+ equality is inextricably linked to reproductive justice, bodily autonomy, and privacy rights for everyone, regardless of gender or sexual orientation. We really are all in this together. We have to be vigilant and strategic in pushing our representatives to give those rights as much legal protection as they feasibly can, which means they're going to have to do much more and better than just rainbow flags and lip service.
