Writing for the majority in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, Justice Samuel Alito argued that the Constitution contained no explicit right to an abortion and that “Roe was egregiously wrong from the start.”
Alito tried to assure Americans that the decision posed no danger to other landmark cases that rely on a constitutional right to privacy — which Roe, echoing a 1965 case about birth control, affirmed as a fundamental liberty protected by the due process clause of the 14th Amendment. But Justice Clarence Thomas wrote in his concurring opinion that several of these cases, notably Lawrence v. Texas, which struck down state sodomy laws, and Obergefell v. Hodges, which established constitutional protection for same-sex marriage, must now be revisited in light of Dobbs.
While it is difficult to determine which justice is a more accurate predictor of the future, the potential exists for landmark victories in the movement for LGBTQ equality to be re-litigated and possibly overturned. Because the Lawrence decision serves as a bedrock upon which all subsequent gains for LGBTQ equality rest, the historical connections between Roe and Lawrence hold the key to grappling with the potential consequences of the Dobbs decision. Both Roe and Lawrence were based on a constitutional right to privacy, and recognizing this link may reveal where the court will go with regard to the rights of LGBTQ Americans.
At the time of Roe, many queer activists understood how helpful the Supreme Court’s abortion decision could be in their own struggle for equality. In February 1973, a few weeks after the Supreme Court invalidated a Texas state abortion law in Roe, the Texas legislature considered adopting a new penal code that criminalized sexual contact between members of the same sex.
Appearing before a state Senate committee charged with studying the proposed criminal code, Frank Stovall, a gay rights activist based in Austin, warned of the dangers of adopting what became known as the homosexual conduct law. “Sodomy is in essence a crime without a victim, which in essence is no crime at all,” he told the committee. The potential harm of the proposed statute, according to Stovall, rested with its violation of bodily autonomy, and he invoked Roe to illustrate this point. “What was the real right involved (in Roe)?” he asked. “The right that the Supreme Court upheld in its landmark decision was the right of a woman to control her own body.” He went on: “The sodomy laws concern essentially the same issue. It is a basic human right of every individual in this society to control his or her own body without any legal interference.”
Although state legislators ignored these objections and approved the new sodomy statute anyway, Stovall and other queer activists continued to insist that the constitutional right to privacy applied in both instances.
All of the legal challenges to the Texas homosexual conduct law, up to and including Lawrence, built upon the constitutional interpretation of the right to privacy affirmed by Roe. A federal case known as Baker v. Wade illustrated this link.
In 1979, Dallas resident Don Baker filed suit in federal district court, claiming that the new sodomy statute violated his and all other gay and lesbian Texans’ right to privacy because it illegally extended the reach of the state into the bedrooms of citizens with no compelling interest to justify the intrusion. Echoing Roe, Baker argued that the Texas homosexual conduct law “violates plaintiff’s fundamental right to privacy to control his body in personal relationships, in the privacy of his own home.”
In August 1982, U.S. District Judge Jerry Buchmeyer agreed. “The right of two individuals to choose what type of sexual conduct they will enjoy in private,” Buchmeyer wrote in his opinion, “is just as personal, just as important, just as sensitive” as decisions involving whether to bear a child. “Accordingly, homosexual conduct in private between consenting adults is protected by a fundamental right of privacy.”
Although three years later the Fifth Circuit Court of Appeals overturned Buchmeyer’s ruling, finding that the state of Texas had a legitimate interest in promoting morality with the statute, Baker v. Wade nevertheless laid the groundwork for using the constitutional right to privacy relied upon in Roe to challenge state sodomy laws.
Two decades later, queer activists made a similar argument against the Texas sodomy law before the U.S. Supreme Court, this time with more success. Harris County sheriffs’ deputies arrested John Lawrence and Tyron Garner near Houston in 1998 for allegedly violating the homosexual conduct law. While Lawrence and Garner’s legal team raised a number of constitutional objections to the Texas sodomy law, only the privacy argument prevailed before the court. In June 2003, Justice Anthony Kennedy, writing for the majority in Lawrence v. Texas, ruled that the Texas sodomy statute, like the invalidated state abortion law struck down in Roe, violated the constitutional right to privacy. Lawrence and Garner, as well as millions of other LGBTQ Americans, Kennedy wrote, “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.”
In other words, Roe helped pave the way for Lawrence and remains a critical legal building block for dozens of advances in LGBTQ equality during the last 50 years. Recognizing the deep connections between Roe and Lawrence is essential to understanding just how threatening the recent Dobbs decision is to the rights of LGBTQ Americans. By overturning Roe, the U.S. Supreme Court has removed a significant pillar in the foundation of equality and created the potential for dramatic changes in the lives of millions of people who depend on a constitutional right to privacy in their daily lives.
Wesley G. Phelps is an associate professor of history at the University of North Texas and author of the forthcoming book titled “Before Lawrence v. Texas: The Making of a Queer Social Movement” (University of Texas Press, 2023).
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