A Texas law criminalized “deviate sexual conduct,” defined as oral- or anal-genital contact, between people of the same sex—but not between people of the opposite sex. The government’s sole justification for the statute was that the Legislature found this conduct to be immoral. John Lawrence and Tyron Garner were convicted under the statute and challenged the statute under the Equal Protection and Due Process Clauses of the 14th Amendment.
The U.S. Supreme Court held that the statute violated the Due Process Clause. As Justice Breyer pointed out during oral argument, the state made no effort to ground the statute in facts or evidence suggesting that homosexual sodomy threatened life, liberty or property. The state did nothing at all to justify its actions except to “repeat the word morality.” Reasoning that the state’s police powers are not so broad as to justify the criminalization of private, consensual conduct simply because a majority thinks that conduct is immoral, the Court found that the statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Having concluded that the statute served no legitimate end, the Court did not need to address whether there was a “fundamental right” to homosexual sodomy. Lawrence correctly put the burden of proof on government to justify its prohibition of an activity that neither violated anyone’s rights nor threatened to violate anyone’s rights—and the government failed to carry that burden.