Also known as: homosexual conducts · sodomy law · same-sex conduct
Written by attorneys — see sources below.
2 senses
Private intimate behavior between consenting adults. The Due Process Clause protects this conduct from criminal prohibition when the state offers no justification beyond moral disapproval.
Behavior that an organization may view as inconsistent with its sincerely held moral values. Forced inclusion of a person engaging in the conduct can significantly burden the group's right to define and convey its expressive message.
Private intimate behavior between consenting adults. The Due Process Clause protects this conduct from criminal prohibition when the state offers no justification beyond moral disapproval.
Hugo Hart and Hana Hashimoto, adult inmates in a state prison, maintained a consensual romantic relationship inside a locked cell. Officials charged them under a statute banning same-sex conduct between prisoners and defended the law solely on moral grounds. No security threat or coercion appeared in the record. The charges fail because the state may not criminalize private adult intimacy on moral disapproval alone.
Behavior that an organization may view as inconsistent with its sincerely held moral values. Forced inclusion of a person engaging in the conduct can significantly burden the group's right to define and convey its expressive message.
Hakeem Harris served as an assistant scoutmaster for a regional troop that publicly teaches moral straightness and traditional values. After Harris publicly identified as gay, the troop revoked his membership to avoid sending a conflicting message to members and parents. The state antidiscrimination agency ordered reinstatement. The troop's exclusion prevails because compelled inclusion would alter the values the organization seeks to instill.
2 common questions
Each sense below has its own examples, sources, and questions.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." Texas Penal Code Ann. § 21.06(a) (2003) provides that a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. The statute defines deviate sexual intercourse as any contact between any part of the genitals of one person and the mouth or anus of another person, or the penetration of the genitals or the anus of another person with an object. The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. The Supreme Court granted certiorari to consider three questions. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.
View caseHannah Hale and Hazel Hoffman rented a unit in a condominium subject to association rules that incorporated a state statute criminalizing same-sex acts in multifamily housing. Police entered the unit and charged the couple after neighbors complained about private bedroom conduct. The statute rested only on moral condemnation. The prosecution cannot proceed because bare moral disapproval supplies no legitimate interest under the Due Process Clause.
Hana Huang and a partner engaged in consensual sexual activity inside their private bedroom in university-owned graduate housing. Campus police arrested them under a statute that singled out same-sex conduct in educational institutions. The state offered only moral disapproval as justification. The charges violate due process because the statute lacks any legitimate governmental objective.
2 common questions
No. The Due Process Clause requires at least a legitimate governmental interest under rational basis review. Moral disapproval standing alone does not qualify as such an interest and therefore cannot support criminal prohibition of private consensual adult intimacy.
Not when the only asserted justification remains moral disapproval. Even in institutional settings, criminalization of private consensual adult intimacy fails rational basis review absent an independent legitimate interest such as security or coercion.
An organization may exclude the member when forced inclusion would significantly burden its ability to convey a sincerely held moral message. The state's interest in nondiscrimination does not override that expressive autonomy when the burden is substantial.
The defense applies only when the organization engages in expression and the member's inclusion would materially alter the message the group seeks to convey. It does not protect purely commercial or non-expressive groups from neutral antidiscrimination rules.
…The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to mandate its own moral code. The Bowers Court further stated that the Due Process Clause does not recognize…