Although homosexual conduct is not a fundamental right, intimate sexual relationships between consenting adults are protected by the Due Process Clause of the Fourteenth Amendment.
Responding to a reported weapons disturbance in a private residence, Houston police entered Lawrence’s apartment and saw him and another adult man, Garner, engaging in a private, consensual sexual act. Both men were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.
Do the criminal convictions of Lawrence and Garner under the Texas law criminalizing sexual intimacy by same-sex couples violate the Due Process Clause of the Fourteenth Amendment?
Yes, the criminal convictions under a Texas law criminalizing sexual intimacy is a violation of the Due Process Clause.
He objects to the Court’s decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers, which might now need to be considered. Also, the same rationale used to overturn Bowers could be used to overturn Roe v. Wade. Scalia criticized the majority for failing to give the same respect to stare decisis that three of those in the majority had insisted on in previous decisions.
Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstand this, nowhere in the Constitution does it state a general right of privacy.
She does not join the court in overruling Bowers and she would’ve reached the same conclusion based on the Equal Protection Clause, rather than the Due Process Clause.
The Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Accordingly, the Court overruled Bowers.