Legal Analysis of Lawrence v. Texas in Relation to MA & PA

 The June 26, 2003, decision of the U.S. Supreme Court in Lawrence v. Texas struck down a criminal statute prohibiting homosexual sodomy.  The majority found a “liberty” to enter personal adult relationships involving private, consensual sexual conduct that the government cannot intrude upon based solely on moral disapproval.  The majority noted, however, that this case did not “involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”  Majority opinion at 18.

 In a separate opinion supporting the majority, Justice Sandra O’Connor rightly observed that “other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”  Concurring opinion at 7.

 Based on reports in the media, advocates for same sex marriage plan to rely on Lawrence in their bid to overturn laws in this country defining marriage as the union between one man and one woman.  For the following reasons, the analysis in Lawrence bolsters the case for and not against marriage’s traditional definition.

 1)     1)   The majority concluded that “there is no longstanding history in this country of laws directed at homosexual conduct as a    distinctive matter.”  Majority at 7.   Conversely, laws defining marriage as the union between one man and one woman have enjoyed universal legal support in history.

2)       The majority found it significant that recently many states have repealed their laws against sodomy and other consensual sexual conduct, evidencing an emerging shift away from history and tradition.  Id. at 11-13.  The contrary is occurring in the marriage context whereby 37 states and the federal government now have laws expressly reaffirming the traditional definition of marriage. 

3)      The majority expressed a concern about the punitive effect of “state-sponsored condemnation” associated with criminal statutes.   Id. at 15.  Laws defining marriage as the union between one man and one woman are not criminal statutes and thus condemn no one.  Instead, marriage laws recognize the unique public importance of the procreative bond between both halves of the human race. 

4)      The majority recognized that liberty is not license.  It characterized the claim before it as the “right to engage in . . . conduct without intervention by the government.”  Id. at 18.  Issuing a marriage license involves by its very nature governmental intervention in favor of a relationship uniquely serving the common good.  Not all that is free must be officially endorsed. 

Thus, the Lawrence ruling is not only consistent with, but supports the longstanding policy in Massachusetts recognizing marriage as the union between one man and one woman.  This policy could be reversed by the Supreme Judicial Court this summer.  This policy must be reaffirmed by passage of the Marriage Affirmation and Protection Act.   Lawrence will not stand in the way.

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