Penn State Law eLibrary Journal Articles Faculty Works 2006 An Other Christian Perspective on Lawrence v. Texas Victor C. Romero Penn State Law Follow this and additional works at: http://elibrary.law.psu.edu/fac_works Part of the Civil Rights and Discrimination Commons, and the Constitutional Law Commons Recommended Citation Victor C. Romero, An Other Christian Perspective on Lawrence v. Texas, 45 J. Cath. Leg. Stud. 115 (2006). This Article is brought to you for free and open access by the Faculty Works at Penn State Law eLibrary. It has been accepted for inclusion in Journal Articles by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. ARTICLES AN "OTHER" CHRISTIAN PERSPECTIVE ON LAWRENCE V. TEXAS VICTOR C. ROMEROt I. GAYS, GOD, AND CAESAR The introduction to the seminal compendium, Christian Perspectives on Legal Thought,1 asks the following question: "What does it mean in America today to say that Jesus, rather than Caesar, is Lord?'' 2 Put slightly differently, if Caesar represents the power, glory, and influence of man and the secular world, how should people who claim to follow Jesus rather than Caesar conduct themselves in the public sphere? As a Christian and a teacher of constitutional law, I would like to apply that question to an analysis of the American public's reaction to recent events, beginning with the Supreme Court's 2003 decision in Lawrence v. Texas,3 the case outlawing prohibitions against same-sex activity, and ending with the 2005 referenda that resulted in limiting the definition of marriage to a union between a man and woman in eighteen states. This essay will explore whether this public reaction, fueled in large part by Christians, reflects placing Jesus rather than the world at the center of worship and concern. Although I can claim no expertise in Christian theology, I wonder whether a more faithful application of Jesus's teachings on social justice would have led to a different interpretation, one that embraces t Associate Dean for Academic Affairs & Maureen B. Cavanaugh Research Professor, Penn State University. I thank Phil McConnaughay for his support of this and many other projects; my many colleagues for their input and conversations regarding this subject, especially Carlos Ball and Rob Vischer, for insightful comments on an earlier draft; and, most importantly, I thank my wife, Corie, my children, Ryan and Julia, and my family in the Philippines for their constant love and care. ' CHRISTIAN PERSPECTIVES ON LEGAL THOUGHT xvii-xxii (Michael W. McConnell, Robert F. Cochran, Jr. & Angela C. Carmella eds., 2001). 2 Id. at xx. 3 539 U.S. 558 (2003). 116 JOURNAL OF CATHOLIC LEGAL STUDIES [Vol. 45:115 Lawrence and rejects States' attempts to narrowly define families in ways that mirror Levitical teaching.4 In the spirit of inquiry, reconciliation, and friendly debate, I humbly offer these thoughts to fellow Christians who may disagree, concerned that the prevailing narrative on these events reflects but one view of Christianity.5 II. IN THE BEGINNING WERE HARDWICK AND EVANS 6 Before the Supreme Court's pronouncement in Lawrence, American constitutional law on the rights of gays and lesbians was unsettled. On the one hand, Bowers v. Hardwick7 stood for the proposition that there was no substantive due process right to engage in same-sex sodomy and that therefore, the state of Georgia was allowed to criminalize it.8 On the other, Romer v. Evans9 held that the state of Colorado could not amend its constitution to disallow gays and lesbians from petitioning authorities to enact antidiscrimination laws. 10 Because Hardwick was adjudicated on due process grounds while Evans was an equal protection case, the Court's view on future gay rights cases was decidedly murky, but perhaps what the justices anticipated.1" As William Eskridge explains, "[t]his lack of 4 See, e.g., Leviticus 18:22, 20:13 (New American) (discussing the sinfulness of same-sex activity under Old Testament law). 5 I am reminded of the example of civil rights activist Bob Moses who, knowing he could not change hearts himself, understood nonetheless that he could be a catalyst for change: 'Moses tried to be a catalyst-without being the determining force-of the other person's decision to act. He understood that as an outsider he could never badger the reluctant participant." CHARLES MARSH, THE BELOVED COMMUNITY: How FAITH SHAPES SOCIAL JUSTICE, FROM THE CIVIL RIGHTS MOVEMENT TO TODAY 104 (2005). It is in this spirit that I offer these thoughts, ever mindful that I may be wrong. 6 Although these cases are more popularly called Bowers and Romer, respectively, I think it more appropriate to highlight the names of the gay petitioners whose rights were at issue. 7 478 U.S. 186 (1986). 8 Id. at 189-91. 9 517 U.S. 620 (1996). 10 Id. at 626-27. 11 It is also worth noting that the reach of the proposed Amendment 2 in Evans extended beyond the sexual conduct discussed in Hardwick to encompass same-sex orientation. The amendment read: No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, 20061 LAWRENCE V. TEXAS authoritative guidance is probably what the Supreme Court expected after Evans: ...courts would struggle with issues of sexual orientation discrimination on a case-by-case basis, less constrained by Supreme Court precedent because of the Hardwick versus Evans choice now available." 12 Thus, in the interim between 1996, when Evans was decided, and 2003, when Lawrence was handed down, there was no clear answer to the issue of when government discrimination based on sexual orientation was constitutionally permissible. Although raising other thorny issues, the Court reconciled the apparent Hardwick- Evans conflict by overruling Hardwick in Lawrence, discussed more fully below. III. THE FLOOD: LAWRENCE AND THE BACKLASH The facts of Lawrence are worth a brief mention here, if only because of the bizarre way in which the case came into being.13 On one fall evening in 1998, John Lawrence and Tyron Garner were doing what millions of other couples do every day in America-they were having sex in their home. What happened next was less commonplace. Police broke into their apartment, interrupting their intimate activity. Unbeknownst to them, a neighbor had called the police to the Lawrence-Garner household, reporting a weapons violation. While the neighbor was later charged with filing a false report, Lawrence and Garner were arrested pursuant to a Texas statute that criminalized sex between members of the same gender as "deviate sexual intercourse." 14 At the time of the arrest, Texas ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. Id. at 624 (internal quotation marks omitted) (emphasis added). 12 WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 172 (1999). 13 For more on the murky facts of Lawrence, see generally Dale Carpenter, The Unknown Past of Lawrence v. Texas, 102 MICH. L. REV. 1464 (2004). The facts of Hardwick are similarly curious: Unbeknownst to Hardwick, a police officer was given permission to enter his home pursuant to what turned out to be a faulty arrest warrant. See JOYCE MURDOCH & DEB PRICE, COURTING JUSTICE: GAY MEN AND LESBIANS V. THE SUPREME COURT 278-79 (2001). 14 TEX. PENAL CODE ANN. § 21.06(a) (Vernon 2003), invalidated by Lawrence v. Texas, 539 U.S. 558 (2003). 118 JOURNAL OF CATHOLIC LEGAL STUDIES [Vol. 45:115 was but one of a handful of states15 that criminalized same-sex activity. After pleading guilty to the act, the couple challenged their convictions in the Texas state courts, claiming that the law violated their federal constitutional rights. 16 Perhaps not surprisingly, given the Hardwick precedent, the Texas courts 17 upheld their convictions. In a 6-to-3 decision, the Supreme Court reversed. While Justice Kennedy penned the majority opinion and Justice O'Connor concurred in the judgment, the same six justices who struck down Colorado Amendment 2 in Evans voted in the plaintiffs' favor. The Kennedy majority explicitly chose to overrule Hardwick, noting that the Due Process Clause of the Fourteenth Amendment was broad enough to protect the consensual, private sexual activity of adults, whether the partners are of the same or opposite sex.'8 After painstakingly reviewing the history of anti-sodomy statutes generally (they did not discriminate against same-gender couples) and the Texas criminal law in particular (it was only recently enacted, apparently to target same-gender couples), Kennedy invoked the Court's decisions in Planned Parenthood v. Casey19 and Evans as controlling precedents-Planned Parenthood, to emphasize the Due Process Clause's substantive protection of intimate, personal decisions, and Evans to highlight the Court's rejection of animus- based discrimination based on sexual orientation. 20 Notwith- standing Justice Scalia's invocation of stare decisis, 21 the Kennedy majority saw fit to overturn Hardwick.22 From a purely constitutional law perspective, Lawrence was a long time coming, and indeed, Hardwick was arguably 15 The other states which had similar laws at the time included Idaho, Louisiana, Mississippi, and South Carolina. Lawrence, 539 U.S. at 581 (O'Connor, J., concurring). 16 Id. at 563 (majority opinion). 17 Id. 18 Id. at 573-75. 19 505 U.S. 833 (1992). 20 Lawrence, 539 U.S.