DISENTANGLING LAW AND POLICY PREFERENCES
IN RESPONSE TO A NEIGHBOR’S false report about a man “going crazy” with a gun, an armed Harris County sheriff’s deputy entered John Lawrence’s unlocked apartment on September 17, 1998. Instead of finding a dangerous situation, the deputy found an awkward one: Lawrence and another man were engaged in intimate sexual acts. The deputy arrested both men based on a Texas anti-sodomy law that prohibited anal and oral sex between members of the same sex. They spent the night in jail and were eventually fined $200.
Lawrence challenged his conviction on the grounds that the law itself violated both his constitutional right to privacy and the equal protection clause of the Fourteenth Amendment. The case made its way to the United States Supreme Court where six justices voted to overturn the Texas law in Lawrence v. Texas (2003). In so doing, the justices overturned the precedent in Bowers v. Hardwick (1986) in which the Court had upheld a similar law.
Both sides were quick to see politics at work. Conservatives said that the justices who voted to strike the Texas law (Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’Connor, David Souter, and John Paul Stevens) had trampled precedent to get to their desired policy outcome. Liberals said the three justices who voted to uphold the Texas law (William Rehnquist, Antonin Scalia, and Clarence Thomas) were simply promoting homophobic policy preferences (Pinello 2003, 100).
Even in this politically charged environment, however, each side justified itself in legal terms. Justice Kennedy’s majority opinion argued that the due process clause of the Fourteenth Amendment protected consensual intimate physical relationships and that Romer v. Evans (1996) meant that class-based legislation directed at homosexuals violated the equal protection clause. On the other side, Justice Thomas argued that even though on policy grounds he found Texas’s law against homosexual sex “uncommonly silly,” the Constitution provided no grounds for overturning it. He said that were he a member of the Texas state legislature— and presumably acting on policy instead of legal grounds—he would vote to repeal the law.
In this case, like so many, political and legal explanations weave together in a complex knot. As a result, separating these influences is very