Remaking Lawrence

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 a homosexual lifestyle.

These sentences appeared in the Supreme Court’s decision Lawrence v. Texas, which struck down sodomy laws as violating liberty protections for private sexual conduct. The decision was a watershed moment for civil rights and civil liberties advocates. For gay rights activists, the decision represented a movement toward sexual equality: “when the history of our times is written, Lawrence may well be remembered as the Brown v. Board of gay and lesbian America.” For civil libertarians, Lawrence marked another victory for privacy rights, namely that consenting adults have the right to engage in relations free from government intrusion. One article aptly described the decision as the Court drawing “a thick constitutional curtain around the nation’s bedrooms.”

Fast forward ten years. Arguments for the freedom of sexual expression, intimate association, and individual liberty that successfully prevailed in one set of circumstances—the decriminalization of sodomy—have been put to use in legal challenges involving gay and lesbian adoption, military service, and same-sex marriage. While Lawrence is invoked quite frequently and almost reflexively, lower courts rarely cite it as controlling precedent, and some have scoffed at attorneys for drawing on the decision to make their case. In the instances in which Lawrence takes center stage in a decision, its meaning either has a different application than when it was decided in 2003, or it is used in large part to strike down morality-based laws.5 These developments raise an important question only Tina Turner could style: What’s Lawrence Got to Do With It?