The Nine [103]
The facts in the new case, Lawrence v. Texas, were uncomplicated and very similar to those that gave rise to Bowers. On September 17, 1998, Houston police, responding to a report of a weapons disturbance, entered an apartment where John Geddes Lawrence and Tyron Garner were having sex. The two men were arrested for violating the Texas law against “deviate sexual intercourse,” which prohibited oral and anal sex. The question for the Court was whether a state could constitutionally prohibit consensual sexual conduct between adults.
Even at the oral argument, it was apparent how much the Court had changed over the years. All Rehnquist could say in support of the Texas law was that “the kind of conduct we’re talking about here has been banned for a long time.” Even Scalia, who had, like Rehnquist and O’Connor, supported the Bowers opinion, sounded defensive. “It’s an act committed in private,” he said. “The police have not gone around knocking on bedroom doors to see if anyone—I mean—this is not the kind of a crime that the police go around looking for.” In questioning Charles A. Rosenthal Jr., the Harris County district attorney, Breyer called the Bowers decision “harmful in consequence, wrong in theory, and understating the constitutional value” and asked, “How do you respond to that?”
Rosenthal tried to change the subject.
But Breyer wouldn’t give up, saying, “I would like to hear your straight answer.”
The worldly Supreme Court audience chuckled at the double entendre, which Breyer himself neither intended nor noticed.
At the conference, only three justices supported the Texas law—Rehnquist, Scalia, and Thomas. O’Connor could not bring herself to repudiate her vote in Bowers altogether, but she couldn’t bring herself to reaffirm it, either. So she found a characteristic middle ground, voting to overturn Lawrence’s conviction on the ground that the prosecution of homosexuals (but not heterosexuals) violated the Equal Protection Clause. That left five votes—Stevens, Kennedy, Souter, Ginsburg, and Breyer—to overturn Bowers, and Stevens wisely assigned Kennedy to write the opinion. (Inside the Court, Kennedy was sometimes said to be “clerk-driven”—that is, overly influenced by his law clerks. Lawrence demonstrated that the charge was both unfair and unwarranted, because three of Kennedy’s four clerks that year were committed conservatives.)
As the Court often saved the most controversial opinions for the last day of the term, everyone knew that the decision in Lawrence v. Texas would be announced on June 26, 2003. Justices do not read their full opinions in open court but generally give abbreviated versions for the tourists and other (usually) baffled spectators who happen to be present. But on this day, gay rights supporters from around the country filled the spectator benches, waiting for the result in Lawrence. The audience stirred when Rehnquist, impassive as always, said, “The opinion of the Court, number 02–102. Lawrence versus Texas will be announced by Justice Kennedy.”
Kennedy’s voice had an uncharacteristic quaver. He was more worldly than Lewis Powell—Kennedy knew many gay people—but he was also a conservative man by most definitions of that term. A devout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. He was, simply, a man who had been transformed by the changing world around him.
“We granted certiorari to consider the constitutional claims presented, including the question whether Bowers v. Hardwick should be overruled,” he said, then quoted a line from that opinion: “The issue as presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” But that framing of the question, Kennedy said, “demeans the claim put forward, just as it would demean a married couple if it were said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that do prohibit a particular sexual act. Their penalties and purposes, though,