On June 26, 2011, Lawrence v. Texas -- the 2003 Supreme Court victory litigated by Lambda Legal that struck down sodomy laws -- will turn eight. As with most eight-year-olds, we have already seen promising glimpses of what Lawrence is capable of doing, but we have yet to witness its full potential, once it reaches maturity.
The incident that led to Lawrence occurred in Houston, Texas. Responding to a bogus citizen complaint, police officers stormed into the home of a gay man who was engaged in intimate same-sex conduct, and hauled both men off to jail in handcuffs and underwear for violating a state law that criminalized "deviate sexual intercourse." Lambda Legal represented the two men who challenged the law.
In a 6-3 decision, the Supreme Court declared the law -- and all others like it -- unconstitutional. The Court recognized the due process clause creates a constitutional protection for the fundamental right to form and sustain an intimate relationship, free from government intrusion. It also recognized that liberty and equality are inextricably intertwined, so that by anchoring its ruling on grounds of liberty, it was also furthering equal protection of the law.
Many hailed the ruling as the Brown v. Board of Education for lesbian, gay, and bisexual people. History has not proven them wrong. Some of the effects of Lawrence were immediate: Lesbian, gay, and bisexual people could no longer be presumptively branded criminals and treated as such in public and private spheres. But many of its effects are still unfolding.
Lawrence was a watershed moment that continues to generate other watershed moments. One can draw a line connecting Lawrence to the landmark decisions in its aftermath that have recognized marriage equality, found the so-called Defense of Marriage Act (DOMA) unconstitutional in various settings, and struck down laws burdening the right of same-sex couples to form intimate relationships. When a federal trial court declared "Don't Ask, Don't Tell" unconstitutional last year, it relied on Lawrence. When Prop 8 was declared unconstitutional last year by Judge Walker, he too relied on Lawrence. Just as the government may not make criminals of lesbian, gay, and bisexual people based on their relationships, neither can it fire them from their jobs, ignore their cries for help when harassed at school, deny them the same rights that heterosexuals enjoy, nor exclude them from institutions like marriage.
Earlier this year, the president and Attorney General concluded that the Department of Justice would not defend the constitutionality of DOMA, because it could not reasonably do so. Lawrence was integral to this tectonic shift in the administration's stance on DOMA cases. Previously, many courts had refused to test the constitutionality of antigay laws with the same standards used for laws discriminating on the basis of traits like religion, race, and sex. They reasoned that if the conduct that defines the class of gay people could constitutionally be criminalized through sodomy laws, then surely the government could justify other types of discrimination against gay people.
Lawrence swept this argument away. Many courts are now applying a more rigorous test -- heightened scrutiny -- which is appropriate when the group has experienced a history of discrimination and the trait is unrelated to one's ability to contribute to society. DOMA's unconstitutionality is especially glaring under this heightened scrutiny.
While we are still far from living up to this nation's promise of liberty and justice for all, there are more legal victories on the horizon, and Lambda Legal is vigorously pursuing them in court. We are making significant progress fulfilling the promise of equality, following the path that Lawrence carved out eight years ago.