Is Homosexual Conduct Considered a ''Crime'' in Texas ?

In Lawrence v. Texas (2003) 539 U.S. 558, the high court held that a Texas statute, which criminalized sodomy between consenting members of the same sex, violated the person's due process rights under the Fourteenth Amendment. (Lawrence, supra, 539 U.S. at pp. 564-579.) The court framed the issue as "whether the majority may use the power of the State to enforce its moral views on the whole society through operation of the criminal law." (Id. at p. 571.) And in reaching its conclusion, the court noted "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." (Id. at p. 572.) The court also noted that, in its previous decision in Planned Parenthood of Southeastern Pa. v. Casey (1992) 505 U.S. 833, it "reaffirmed the substantive force of the liberty protected by the Due Process Clause," and "confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." (Lawrence, supra, at pp. 573-574, italics added.) Despite the Lawrence court's broad pronouncements regarding the liberty interests of persons "in matters pertaining to sex" (Lawrence, supra, 539 U.S. at p. 572), Lawrence dealt only with sodomy between consenting adults of the same sex. It did not deal with other "matters pertaining to sex," including consensual incest between adult members of the opposite sex who are related by consanguinity. Indeed, the court emphasized the limited nature of its holding by noting that the case before it did not involve, among other things, "persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused." (539 U.S. at p. 578.) In sum, in Lawrence v. Texas (2003) the Supreme Court held that a Texas statute making it unlawful for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional as applied to two adult males who had engaged in a consensual act of sodomy in the privacy of their own home. (Lawrence, supra, 539 U.S. at p. 578.) In reaching this conclusion, the court stated in part: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners 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. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." (Ibid.) The Supreme Court also concluded that the Texas statute barring sodomy between same-sex partners, but not opposite-sex partners, furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." (Id. at p. 578.)