Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 (2003), was a landmark decision of the U.S. Supreme Court in which the Court ruled that sanctions of criminal punishment for those who commit sodomy are unconstitutional. The Court reaffirmed the concept of a "right to privacy" that earlier cases, such as Roe v. Wade, had found the U.S. Constitution provides, even though it is not explicitly enumerated. The Court based its ruling on the notions of personal autonomy to define one's own relationships and of American traditions of non-interference with private sexual decisions between consenting adults.
|Lawrence v. Texas|
|Argued March 26, 2003|
Decided June 26, 2003
|Full case name||John Geddes Lawrence and Tyron Garner v. Texas|
|Citations||539 U.S. 558 (more)|
|Prior||Defendants convicted, Harris County Criminal Court (1999), rev'd, 2000 WL 729417 (Tex. App. 2000) (depublished), aff'd en banc, 41 S.W.3d 349 (Tex. App. 2001), review denied (Tex. App. 2002), cert. granted, 537 U.S. 1044 (2002).|
|Subsequent||Complaint dismissed, 2003 WL 22453791, 2003 Tex. App. LEXIS 9191 (Tex. App. 2003)|
|A Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th Amendment. Court of Appeals for the Fourteenth District of Texas reversed.|
|Majority||Kennedy, joined by Stevens, Souter, Ginsburg, Breyer|
|Dissent||Scalia, joined by Rehnquist, Thomas|
|U.S. Const. amend. XIV;|
Tex. Penal Code § 21.06(a) (2003)
This case overturned a previous ruling or rulings
|Bowers v. Hardwick (1986)|
In 1998, John Geddes Lawrence Jr., an older white man, was arrested along with Tyron Garner, a younger black man, at Lawrence's apartment in Harris County, Texas. Garner's former boyfriend had called the police, claiming that there was a man with a weapon in the apartment. Sheriff's deputies said they found the men engaging in sexual intercourse. Lawrence and Garner were charged with a misdemeanor under Texas' anti-sodomy law; both pleaded no contest and received a fine. Assisted by the American civil rights organization Lambda Legal, Lawrence and Garner appealed their sentences to the Texas Courts of Appeals, which ruled in 2000 that the sodomy law was unconstitutional. Texas appealed to have the court rehear the case en banc, and in 2001 it overturned its prior judgment and upheld the law. Lawrence appealed this decision to the Texas Court of Criminal Appeals, which denied his request for appeal. Lawrence then appealed to the U.S. Supreme Court, which agreed to hear his case.
The Supreme Court struck down the sodomy law in Texas in a 6–3 decision and, by extension, invalidated sodomy laws in 13 other states, making same-sex sexual activity legal in every U.S. state and territory. The Court, with a five-justice majority, overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy. It explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.
The case attracted much public attention, and many[specify] amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, and set the stage for further reconsideration of standing law, including the landmark case of Obergefell v. Hodges (2015) which recognized same-sex marriage as a fundamental right under the United States Constitution.
Legal punishments for sodomy often included heavy fines, prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a "sexual pervert". As late as 1970, Connecticut denied a driver's license to a man for being an "admitted homosexual".
As of 1960, every state had an anti-sodomy law. In 1961, the American Law Institute's Model Penal Code advocated the repeal of sodomy laws as they applied to private, adult, consensual behavior. Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold, the Supreme Court recognized for the first time that couples, at least married couples, had a right to privacy, drawing on the Fourth Amendment's protection of private homes from searches and seizures without a warrant based on probable cause, the Fourteenth Amendment's guarantee of due process of law in the states, and the Ninth Amendment's assurance that rights not specified in the Constitution are "retained by the people". Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge in a 5 to 4 decision. Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a right to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. He then reasoned that because state intrusions are equally burdensome on an individual's personal life regardless of his marital status or sexual orientation, there is no reason to treat the rights of citizens in same-sex couples any differently.
By the time of the Lawrence decision, ten states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Michigan, Utah, and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma, and Missouri—prohibited same-sex couples from engaging in anal and oral sex.
Arrest of Lawrence and GarnerEdit
On September 17, 1998, John Geddes Lawrence Jr., a gay 55-year-old medical technologist, was hosting two gay acquaintances, Tyron Garner, age 31, and Robert Eubanks, 40, at his apartment in northeast Harris County, Texas, east of the Houston city limits. Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had a tempestuous on-again off-again romantic relationship since 1990. Lacking transportation home, the couple were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported "a black male going crazy with a gun" at Lawrence's apartment.
Four Harris County sheriff's deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and later in determining what charges to bring. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and to determine whether to arrest them. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check the statutes to be certain they covered sexual activity inside a residence. He was told that Texas' anti-sodomy statute, the "Homosexual Conduct" law, made it a Class C misdemeanor if someone "engages in deviate sexual intercourse with another individual of the same sex". The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.
Quinn decided to arrest Lawrence and Garner and charge them with having "deviate sex". In the separate arrest reports he filed for each, he wrote that he had seen the arrestee "engaged in deviate sexual conduct namely, anal sex, with another man". Lawrence and Garner were held in jail overnight. At a hearing the next day, they pleaded not guilty to a charge of "homosexual conduct". They were released toward midnight. Eubanks pleaded no contest to charges of filing a false police report. He was sentenced to 30 days in jail but was released early.
Prosecution and appealsEdit
The gay rights advocates from Lambda Legal litigating the case convinced Lawrence and Garner not to contest the charges and to plead no contest instead. On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial. Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.
To appeal, Lawrence and Garner needed to have their cases tried in Harris County Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court's decision in Bowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was "wrongly decided". On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pleaded "no contest". Ross fined them $200 each, the amount agreed upon in advance by both sides.
A three-judge panel of the Texas Fourteenth Court of Appeals heard the case on November 3, 1999. Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented. The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel's decision and upheld the law's constitutionality 7–2, denying both the substantive due process and equal protection arguments. Attorneys for Lawrence and Garner asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year's delay, on April 17, 2002, that request was denied. Lambda Legal's Harlow called that decision "a major abdication of judicial responsibility". Bill Delmore, the Harris County prosecutor who argued the case, called the judges "big chickens" and said: "They have a history of avoiding the hot potato cases if they can."
Consideration by the Supreme CourtEdit
- Whether the petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws;
- Whether the petitioners' criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment;
- Whether Bowers v. Hardwick should be overruled.
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations. An op-ed in support by former Sen. Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument. The attorneys for Texas did not control the amicus briefs submitted in support of their position by representatives of religious and social conservatism, including Jay Alan Sekulow and Robert P. George. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had "severe physical, emotional, psychological, and spiritual consequences".
At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs. Texas Attorney General John Cornyn, then a candidate for the US Senate, refused to have his office argue the case. Charles A. Rosenthal, District Attorney of Harris County, represented the state. His performance was later described as "the worst oral argument in years", but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.
On June 26, 2003, the Supreme Court issued a 6–3 decision in favor of Lawrence that struck down Texas's statute. Five justices held it violated the Due Process Clause, while a sixth, Sandra Day O'Connor, held it violated the Equal Protection Clause.
Opinion of the CourtEdit
Five justices formed the majority and joined an opinion written by Justice Anthony Kennedy. The Court ruled that Texas's law prohibiting private homosexual activity between consenting adults violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The Court did not speak of private sexual activity as a fundamental right that might require the highest "strict scrutiny" standard of judicial review. Instead, it focused on why the Court's decision in Bowers v. Hardwick was wrong.
First, the Court stated that its decision in Bowers went against its statements in cases involving child-rearing (Pierce v. Society of Sisters and Meyer v. Nebraska), contraception (Griswold v. Connecticut and Eisenstadt v. Baird), and abortion (Roe v. Wade) that the Constitution protects a right to privacy and personal autonomy. Next, Kennedy wrote that in Bowers the Court had misread the historical record regarding laws criminalizing homosexual relations. He stated that, after further research, the Court had found that historical American anti-sodomy laws had been directed at "nonprocreative sexual activity more generally," rather than specifically at homosexual acts, contrary to the Court's conclusions in Bowers. Combined with the fact that these laws were often unenforced, the Court saw this as constituting a tradition of avoiding interference with private sexual activity between consenting adults.
Lastly, Kennedy noted that Bowers's jurisprudential foundation had been weakened by two subsequent cases involving sexuality (Planned Parenthood v. Casey and Romer v. Evans), and that the reasoning of Bowers had been criticized in the United States and rejected by most other developed Western countries. For this reason, Kennedy stated that there was a jurisprudential basis to think that it should be "an integral part of human freedom" for consenting adults to choose to privately engage in sexual activity.
Kennedy wrote: "The petitioners [Lawrence and Garner] 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." Kennedy reviewed the assumption the court made in Bowers, using the words of Chief Justice Burger's concurring opinion in that case, that "Condemnation of [homosexual practices] is firmly rooted in Judeo-Christian moral and ethical standards." He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code's recommendations since 1955, the Wolfenden Report of 1957, and a 1981 decision of the European Court of Human Rights in Case 7525/76 Dudgeon v United Kingdom.
Justice Sandra Day O'Connor only concurred in the judgment and wrote a concurring opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed the court's invocation of due process guarantees of liberty in this context. Rather than including sexuality within protected liberty, she would strike down the law as violating the equal protection clause because it criminalized male–male but not male–female sodomy. O'Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because "democratic society" would not tolerate it for long. O'Connor noted that a law limiting marriage to heterosexual couples would pass rational scrutiny as long as it was designed to "preserv[e] the traditional institution of marriage" and not simply based on the state's dislike of homosexual persons.
Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered. He noted that the same rationale used to overturn Bowers could have been used to overturn Roe v. Wade, which some of the Justices in the majority in Lawrence had upheld in Planned Parenthood v. Casey (1992). Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey. O'Connor's concurrence noted that Scalia's dissent conceded that if cases such as Romer v. Evans "have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review" applied.
Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.
He wrote that:
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ... [T]he Court has taken sides in the culture war, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed.
He cited the majority opinion's concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:
So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.
He continued: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." The majority's "invention of a brand-new 'constitutional right'", he wrote, showed it was "impatient of democratic change".
Justice Thomas wrote in a separate, two-paragraph dissent that the law the Court struck down was "uncommonly silly", a phrase from Justice Potter Stewart's dissent in Griswold v. Connecticut, but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas legislature he would vote to repeal the law.
President George W. Bush's press secretary Ari Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, 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: "In fact, the decision today ... took what had been a state-by-state matter and pronounced a binding national constitutional principle."
The Lambda Legal's lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that "the court admitted its mistake in 1986, admitted it had been wrong then ... and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights."
Professor Laurence Tribe has written that Lawrence "may well be remembered as the Brown v. Board of Education of gay and lesbian America". Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court ... this was a drastic rewrite".
The end result of Lawrence v. Texas was "like the Roe v. Wade of the homosexual issue", according to Peter LaBarbera of Culture and Family Institute and Americans for Truth about Homosexuality, an organization recognized as a homophobic hate group by the Southern Poverty Law Center.
Age of consent lawsEdit
Lawrence invalidated age of consent laws that differed based on sexual orientation. The day after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 "Romeo and Juliet" law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior but explicitly excludes same-sex conduct from the sentence reduction. In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court's ruling on October 21, 2005, in State v. Limon.
In Muth v. Frank (2005), following Lawrence a man convicted of criminal behavior by having an incestuous relationship in Wisconsin appealed his ruling in an attempt to apply the logic of sexual privacy in Lawrence. The Seventh Circuit declined to extend the right of privacy stated in Lawrence to cases of consensual adult incest. The case was distinguished because parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring as suggested by geneticists who were witnesses at the trial.
The Connecticut Supreme Court rejected an argument based on Lawrence that a high school teacher had a constitutional right to engage in sexual activity with his consent-aged students. The court rejected the teacher's privacy and liberty arguments in the context of an "inherently coercive relationship wherein consent might not easily be refused".
Upon rehearing Williams v. Pryor after Lawrence, the Eleventh Circuit Court of Appeals upheld Alabama's ban on the sale of sex toys. Facing comparable facts, the Fifth Circuit struck down Texas's sex toy ban holding that "morality is an insufficient justification for a statute" and "interests in 'public morality' cannot constitutionally sustain the statute after Lawrence".
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 United States prohibiting consensual human sexual conduct can also block prosecution of bestiality. Issues stem from several states that include human sexual conduct and bestiality in the same "anti-sodomy" statute. "Cases have been turned over on appeal because of unclear language in the law, and often times no charges are brought at all," said Leighann. As of 2018, 45 states have direct prohibitions on bestiality, while others may prohibit it under broader animal cruelty laws, according to the Animal Legal and Historical Center (Michigan State University College of Law).
Same-sex marriage bansEdit
A few months later, on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Although deciding the case on the basis of the state constitution, Chief Justice Margaret Marshall quoted Lawrence in its second paragraph: "Our obligation is to define the liberty of all, not to mandate our own moral code."
Aside from Massachusetts, other state case law had been quite explicit in limiting the scope of Lawrence and upholding state bans on same-sex marriage regulations. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.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 court challenge to a state same-sex marriage ban, Judge Vaughn Walker cited Scalia's dissent in his decision in Perry v. Schwarzenegger that found California's Proposition 8 banning same-sex marriage unconstitutional.
United States militaryEdit
The United States Court of Appeals for the Armed Forces, the last court of appeals for courts-martial before the Supreme Court, ruled that Lawrence applies to Article 125 of the Uniform Code of Military Justice, the article banning sodomy. It also twice upheld prosecutions under Article 125 when applied as necessary to preserve good order and discipline in the armed forces.
The level of scrutiny applied in LawrenceEdit
Justice Scalia and others[who?] have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged "fundamental right". He wrote the majority, instead, applied "an unheard-of form of rational basis review that will have far-reaching implications beyond this case".
Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either "fundamental" or "not fundamental" as too restrictive. Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government's action has not been arbitrary. Justice Stevens had repeatedly criticized tiered scrutiny and preferred a more active judicial balancing test based on reasonability.
Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny. In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.
John Lawrence died of complications from a heart ailment in 2011, aged 68. Tyron Garner died of meningitis in 2006, aged 39, and Robert Eubanks was beaten to death in 2000, in a case that was never solved.
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- He summarized the majority's criteria as: looking to (1) "whether its foundations have been 'eroded' by subsequent decisions; (2) it has been subject to 'substantial and continuing' criticism; (3) it has not induced 'individual or societal reliance'".
- Scalia noted that in Casey stare decisis was of the utmost importance because of the divisive nature of the case. The majority in Lawrence, he wrote, "do[es] not bother to distinguish—or indeed, even bother to mention—the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant the preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it." He continued: "Today, however, the widespread opposition to Bowers, a decision resolving an issue as 'intensely divisive' as the issue in Roe, is offered as a reason in favor of overruling it."
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- Linda Greenhouse. "Supreme Court Paved Way for Marriage Ruling With Sodomy Law Decision", The New York Times, November 19, 2003, accessed July 16, 2012
- Perry v. Schwarzenegger Page 63 item 21 c 
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- Hunter, Nan D. (2004). "Living with Lawrence". Minnesota Law Review. 88:1104. This interpretation is more consistent with the open-ended balancing style that the more liberal justices have consistently advocated. San Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 98 (Marshall, J., dissenting) (showing "disagreement with the Court's rigidified approach to equal protection analysis").
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- Lofton v. Secretary of the Department of Children & Family Services, 358 F.3d 804 (United States Court of Appeals for the Eleventh Circuit 2004).
- Witt v. Department of the Air Force, No. 06-35644.
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- Carpenter, Dale (2012). Flagrant Conduct: The Story of Lawrence v. Texas. New York: W. W. Norton & Company. pp. 11–12. ISBN 978-0-393-06208-3. OCLC 761383909.
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- Lithwick, Dahlia (March 12, 2012). "Extreme Makeover: The Story Behind the Story of Lawrence v. Texas". The New Yorker. Retrieved July 15, 2012. A lengthy review of Carpenter, Flagrant Conduct.
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