Homosexuality and the Constitution: A Legal Analysis of the Supreme Court Ruling in Lawrence v. Texas

CRS Report for Congress
Homosexuality and the Constitution:
A Legal Analysis of the Supreme Court
Ruling in Lawrence v. Texas
Updated May 26, 2005
Jody Feder
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Homosexuality and the Constitution: A Legal Analysis
of the Supreme Court Ruling in Lawrence v. Texas
Summary
In a sweeping decision issued on June 26, 2003, the Supreme Court struck down
a Texas state statute that made it a crime for homosexuals to engage in certain private
sex acts. Specifically, the Court’s ruling in Lawrence v. Texas held that the due
process privacy guarantee of the Fourteenth Amendment extends to protect
consensual gay sex. Although the Court also considered whether the Texas state
statute violated the constitutional right to equal protection, the Court ultimately based
its ruling on broader privacy grounds. In addition, the Court also overturned its 1986
decision in Bowers v. Hardwick, a controversial case in which the Court ruled that
there was no constitutional right to privacy that protects homosexual sodomy. This
report provides an overview of the Supreme Court’s opinion in Lawrence v. Texas,
coupled with a discussion of its implications for future cases involving gay rights in
general and same-sex marriage in particular. For a more detailed discussion of
current developments regarding gay marriage, see CRS Report RL31994, Same-Sex
Marriages: Legal Issues, by Alison M. Smith.

Contents
I. Introduction.....................................................1
Background in Lawrence v. Texas ................................1
Sodomy Laws in Other States....................................2
Past Supreme Court Decisions in Gay Rights Cases: Bowers v. Hardwick
and Romer v. Evans........................................2
II. Supreme Court Review...........................................4
Bowers v. Hardwick and the Right to Privacy........................4
Equal Protection ..............................................7
III. Conclusion....................................................8
Immediate Consequences........................................8
Implications for Future Cases Involving Gay Rights...................9

Homosexuality and the Constitution: A Legal
Analysis of the Supreme Court Ruling in
Lawrence v. Texas
I. Introduction
In a sweeping decision issued on June 26, 2003, the Supreme Court struck down
a Texas state statute that made it a crime for homosexuals to engage in certain private
sex acts. Specifically, the Court’s ruling in Lawrence v. Texas held that the due
process privacy guarantee of the Fourteenth Amendment extends to protect¹
consensual gay sex. Although the Court also considered whether the Texas state
statute violated the constitutional right to equal protection, the Court ultimately based
its ruling on broader privacy grounds. In addition, the Court also overturned its 1986
decision in Bowers v. Hardwick, a controversial case in which the Court ruled that
there was no constitutional right to privacy that protects homosexual sodomy. This
report provides an overview of the Supreme Court’s opinion in Lawrence v. Texas,
coupled with a discussion of its implications for future cases involving gay rights in
general and same-sex marriage in particular. For a more detailed discussion of
current developments regarding gay marriage, see CRS Report RL31994, Same-Sex
Marriages: Legal Issues, by Alison M. Smith.
Background in Lawrence v. Texas
In 1998, sheriff’s officers, responding to a false report of a weapons disturbance,
entered the private residence of John Geddes Lawrence, found Lawrence and Tyron
Garner engaged in consensual sex, and arrested the two men for violating a Texas
statute that prohibits homosexual sodomy.² Under the Texas penal code, “a person
commits an offense if he engages in deviate sexual intercourse with another
individual of the same sex;”³ “deviate sexual intercourse” is defined to include oral⁴
or anal sex.
Following their convictions, Lawrence and Garner challenged the statute on
constitutional equal protection and due process privacy grounds. Although a panel
of the Court of Appeals of Texas ruled in their favor, the full Court of Appeals,

¹ 539 U.S. 558 (2003).
² Petition for Writ of Certiorari at 5, Lawrence v. Texas, 41 S.W.3d 349 (Tex. App. 2001)
(No. 02-102) (hereinafter Petition for Writ of Certiorari).
³ Tex. Penal Code § 21.06.
⁴ Tex. Penal Code § 21.01(1).

sitting en banc, reversed, thereby reaffirming the original convictions.⁵ When the
Texas Court of Criminal Appeals refused to review the case, Lawrence and Garner
appealed to the U.S. Supreme Court.⁶ The Supreme Court granted certiorari,⁷ and
ultimately struck down the state statute, thereby reversing the Court of Appeals of
Tex as.⁸
Sodomy Laws in Other States
At the time of the Lawrence decision, twelve other states, in addition to Texas,
had anti-sodomy laws on their books. However, of the thirteen states with anti-
sodomy laws, only four states, including Texas, had laws that criminalized sodomy
between same-sex couples but not between heterosexual partners.⁹ The remaining
states with anti-sodomy laws criminalized sodomy for all couples, regardless of
whether they consisted of same-sex or opposite-sex partners.
Notably, the number of states with anti-sodomy laws had declined significantly
in the nearly two decades since the landmark Bowers v. Hardwick case upheld a
Georgia law that outlawed homosexual sodomy in 1986. At that time, 24 states and
the District of Columbia had anti-sodomy laws on the books, but half of those states,
including Georgia, subsequently legislatively repealed or judicially overturned their
respective anti-sodomy statutes.¹⁰ By overturning Bowers and by deciding Lawrence
on privacy grounds, the Supreme Court simultaneously overturned all state anti-
sodomy laws, including statutes that do not distinguish between heterosexual and
homosexual couples.
Past Supreme Court Decisions in Gay Rights Cases: Bowers
v. Hardwick and Romer v. Evans
The Supreme Court’s decision in Lawrence v. Texas marks one of the few
instances in which the Court has agreed to participate in a wider legal debate
surrounding “gay rights.” Indeed, over the past two decades, the Supreme Court has
heard relatively few cases involving such issues.¹¹ Of the gay rights cases that the

⁵ Lawrence v. Texas, 41 S.W.3d 349 (Tex. App. 2001) (en banc); cert. granted 537 U.S.

1044 (2002).

⁶ Petition for Writ of Certiorari at 5-8.
⁷ Lawrence v. Texas, 537 U.S. 1044 (2002).
⁸ Lawrence v. Texas, 539 U.S. 558 (2003).
⁹ The four states that criminalize same-sex sodomy only were Texas, Kansas, Missouri, and
Oklahoma. The nine states that criminalize sodomy regardless of the sexual orientation of
the partners were Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South
Carolina, Utah, and Virginia. Id.
¹⁰ Petition for Writ of Certiorari at 24-25.
¹¹ See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Romer v. Evans, 517 U.S.

620 (1996); Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995);

Bowers v. Hardwick, 478 U.S. 186 (1986); Rowland v. Mad River Local School Dist., 470
(continued...)

Court has heard, two cases, namely Bowers v. Hardwick¹² and Romer v. Evans,¹³ are
of particular significance to the outcome in Lawrence and are therefore discussed in
greater detail in this section.¹⁴
In Bowers v. Hardwick, the Supreme Court considered a challenge to a Georgia
statute that criminalized both homosexual and heterosexual sodomy. Ruling that the
Due Process clause of the Fourteenth Amendment did not provide a fundamental
right to engage in consensual homosexual sodomy, even in the privacy of one’s own
home, the Court upheld the Georgia statute.¹⁵ Although other Supreme Court rulings
have recognized a due process right of privacy that protects personal decisions
regarding activities such as marriage, contraception, and procreation from
government interference,¹⁶ the Bowers decision essentially refused to recognize a
similar right of privacy to protect individuals engaged in homosexual sodomy.
The other Supreme Court case shaping the Court’s decision in Lawrence is
Romer v. Evans. Decided in 1996, Romer held that Amendment 2 of the Colorado
Constitution, which barred localities from enacting civil rights protections on the
basis of sexual orientation, violated the Equal Protection Clause of the Fourteenth
Amendment.¹⁷ Although classifications based on sexual orientation do not receive
the heightened constitutional scrutiny normally reserved for review of suspect
classifications such as race or gender, the Court in this case nevertheless determined
that the Colorado amendment violated the guarantee of equal protection because the
law was motivated strictly by animus for homosexuals and because there was
otherwise no rational basis for enacting such a sweeping restriction on the legal rights
of gays and lesbians. According to the Court:
We must conclude that Amendment 2 classifies homosexuals not to further a
proper legislative end but to make them unequal to everyone else. This Colorado
cannot do. A State cannot so deem a class of persons a stranger to its laws.¹⁸

Amendment 2 violates the Equal Protection Clause.
¹¹ (...continued)
U.S. 1009 (1985).
¹² 478 U.S. 186 (1986).
¹³ 517 U.S. 620 (1996).
¹⁴ For additional discussion of these two cases, see CRS Report 96-575, “Homosexuality and
the Federal Constitution: A Legal Analysis of the U.S. Supreme Court Ruling in Romer v.
Evans” by Charles V. Dale. For a detailed discussion of a wide range of legal issues
regarding sexuality, see William N. Eskridge, Jr. & Nan D. Hunter, S^EXUALI^T^Y,G^ENDER,
^{AND THE}L^AW (1997).
¹⁵ Hardwick, 478 U.S. at 191-92.
¹⁶ See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977); Loving v.
Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965).
¹⁷ 517 U.S. 620, 635 (1996).
¹⁸ Id.

Despite the fact that Bowers and Romer were decided on different constitutional
grounds, both of the cases involved issues that were raised in the Lawrence case.
Ultimately, the Supreme Court overruled its decision in Bowers, holding that the due
process right to privacy extends to protect private, consensual sexual activity.
Although Justice Sandra Day O’Connor, who originally voted with the majority to
uphold the Georgia statute at issue in Bowers, did not join in the 5-4 decision to
overrule that case, she did agree with the majority’s decision to strike down the Texas
statute for different reasons. In a separate opinion reminiscent of the Court’s ruling
in Romer, O’Connor indicated that she was voting to strike down the Texas sodomy
law as a violation of the constitutional guarantee of equal protection¹⁹. The Court’s
opinion, O’Connor’s concurrence, and the dissent’s argument are detailed in the
following section.
II. Supreme Court Review
In their petition seeking Supreme Court review, attorneys for Lawrence and
Garner posed three questions to the Court: (1) did the Texas statute violate the Equal
Protection Clause of the Fourteenth Amendment; (2) did the Texas statute violate the
right to privacy embedded in the Due Process Clause of the Fourteenth Amendment;²⁰
and (3) should Bowers be overruled? The Court’s consideration of these and other
issues is discussed in the following section.
Bowers v. Hardwick and the Right to Privacy
Under the second question presented in Lawrence – which formed the basis for
the Court’s eventual ruling – the Supreme Court was faced with the question of
whether or not the homosexual sodomy statute violates the right to privacy embedded
in the Due Process Clause of the Fourteenth Amendment. Because the Bowers v.
Hardwick case specifically considered the same issue, the Court’s decision on the
privacy question likewise affected the Court’s decision on the third and final question
– whether or not to overrule Bowers. The Court ultimately overruled Bowers and held
that government interference with a private and intimate consensual adult activity is
a violation of the due process right to privacy. This section describes the Court’s
reasoning and discusses the dissent’s response.
The Court began its analysis in Lawrence by summarizing its substantive due
process privacy doctrine. Under the Supreme Court’s privacy jurisprudence, the
Court has recognized a constitutional right to privacy despite the fact that this right
is not specifically enumerated in the Constitution. In Bowers, for example, the Court
noted that the Due Process right to privacy protects from government interference a
wide range of personal decisions regarding issues such as child rearing, family
relationships, procreation, marriage, contraception, and abortion.²¹ This right to
privacy is grounded in the notion that certain freedoms are so “fundamental” or

¹⁹ Lawrence v. Texas, 539 U.S. 558, 579 (2003).
²⁰ Petition for Writ of Certiorari at i.
²¹ Bowers v. Hardwick, 478 U.S. 186, 190-191 (1996). See also, Lawrence v. Texas, 539
U.S. at 573-74.

“implicit in the concept of ordered liberty” that “neither liberty nor justice would
exist if they were sacrificed.”²² Alternatively, certain liberties may be deemed
fundamental because they are “deeply rooted in this Nation’s history and tradition.”²³
Because these two tests do not always articulate clear standards for determining when
a liberty is so “fundamental” that it deserves constitutional protection under the Due
Process Clause, extending the right to privacy to liberties that have not previously
been deemed fundamental by the Court, such as a right to engage in consensual
homosexual sodomy, can sometimes prove controversial.
After outlining its privacy jurisprudence, the Court set forth its reasons for
reconsidering its decision in Bowers. Of primary importance to the Court was the
idea that the Bowers Court had “misapprehended the claim of liberty there presented
to it.”²⁴ In the Lawrence Court’s view, the issue in Bowers was about more than a
fundamental right to engage in homosexual sodomy. Rather, the case was about
whether or not individuals have the right to make personal choices regarding their
intimate relationships free of government interference.²⁵ Although the Lawrence
Court did not explicitly deem homosexual sodomy to be a fundamental right, the
Court nonetheless concluded that the Bowers Court had failed to properly define the
liberty interests at stake when individuals make private, consensual choices about
their sexual conduct.
The Court criticized the Bowers decision on several additional grounds. First,
the Court noted that Bowers had relied in part on a history of condemnation of
homosexuality, but the Court countered that argument by citing several legal and
historical sources demonstrating that “there is no longstanding history in this country
of laws directed at homosexual conduct as a distinct matter.”²⁶ Second, although
many believe homosexuality to be immoral, the Court noted that public perceptions
on this issue have shifted over time. The Court pointed to changing trends in state
law and international law as evidence of an “emerging awareness that liberty gives
substantial protection to adult persons in deciding how to conduct their private lives
in matters pertaining to sex.”²⁷ Indeed, half the states with anti-sodomy laws have
legislatively repealed or judicially overruled such statutes over the last two decades,
including Georgia, the state whose anti-sodomy statute was upheld by the Court in
Bowers, and a number of Western democracies have recognized the right to sexual
privacy.²⁸ Finally, the Court noted that its own constitutional doctrine has evolved
over the years that have elapsed since the Bowers decision was handed down,
specifically citing its decisions in Romer and in Planned Parenthood of Southeastern

²² Palko v. Connecticut, 302 U.S. 319, 325-26 (1937).
²³ Moore v. East Cleveland, 431 U.S. 494, 503 (1977).
²⁴ Lawrence v. Texas, 539 U.S. 558, 567 (2003).
²⁵ Id. at 564-67.
²⁶ Id. at 568.
²⁷ Id. at 572.
²⁸ Id. at 573.

Pa. v. Casey, a privacy case involving abortion rights.²⁹ In addition to these criticisms
of the Bowers decision, the Court also took special note of the stigma imposed by
state laws that criminalize sodomy.³⁰
After finishing this critique of Bowers, the Court next considered whether or not
to overturn the case. In determining whether or not to overrule precedent, the
Supreme Court typically considers four factors: (1) whether the precedent establishes
a workable rule, (2) whether the public has relied on the rule, (3) whether legal
doctrine has changed, and (4) whether facts in the case or public perception of such
facts has changed.³¹ Although the Court, which recognizes a need for continuity and
respect for the rule of law, does not lightly overrule precedent, neither is the Court
willing to refrain from doing so when it determines that a previous case has been
incorrectly decided.³² In Lawrence, the Court determined that:
[T]here has been no individual or societal reliance on Bowers of the sort that
could counsel against overturning its holding once there are compelling reasons
to do so. Bowers itself causes uncertainty, for the precedents before and after its
issuance contradict its central holding. The rationale of Bowers does not
withstand careful analysis. . . . Bowers was not correct when it was decided, and
it is not correct today. It ought not to remain binding precedent. Bowers v.³³
Hardwick should be and now is overruled.
After noting that the Lawrence case involved a consensual relationship and did
not involve minors, public conduct, prostitution, or other legitimate state concerns,
the majority concluded its opinion with the following strongly worded statement in
support of its holding:
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.
It is a promise of the Constitution that there is a realm of personal liberty which
the government may not enter. The Texas statute furthers no legitimate state
interest which can justify its intrusion into the personal and private life of the³⁴
individual.
In an equally strongly worded dissent, Justice Antonin Scalia criticized the
majority’s decision in Lawrence. He accused the majority of being inconsistent for
failing to adhere to the precedent established in Bowers after some of the same
Justices had insisted on strong adherence to the rules of precedent in the 1992 Casey
decision, in which the Court upheld abortion rights and refused to overturn Roe v.

²⁹ Id. at 573-74.
³⁰ Id. at 575-76.
³¹ Planned Parenthood v. Casey, 505 U.S. 833, 854-55 (1992).
³² Id.
³³ Lawrence v. Texas, 539 U.S. 558, 577 (2003).
³⁴ Id. at 578 (citing Casey).

Wade.³⁵ He also accused the majority of misapplying the Court’s substantive due
process doctrine, asserting that homosexual sodomy has not achieved the status of
a fundamental constitutional right in the years since Bowers was decided, ³⁶ and he
warned that the majority’s opinion signaled “the end of all morals legislation.”³⁷
Arguing that the Court “has taken sides in the culture war,” the dissent concluded by
arguing that the majority’s opinion opens the door to legal challenges against an array
of laws that regulate sexual activity and personal relationships, including laws that
prohibit same-sex marriage.³⁸
Equal Protection
Although Justice O’Connor did agree that the Texas statute was
unconstitutional, she did not agree with the majority’s reasoning. Rather than ruling
on due process privacy grounds, O’Connor based her concurring opinion on the
Equal Protection Clause of the Fourteenth Amendment.³⁹
Under the Supreme Court’s equal protection jurisprudence, “the general rule is
that legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest.”⁴⁰ Laws based
on suspect classifications such as race or gender, however, typically receive
heightened scrutiny and require a stronger, if not compelling, state interest to justify
the classification.⁴¹ Because sexual orientation is not considered to be a suspect
category, a state need only advance a rational reason for enacting a statute that treats
individuals differently depending on their sexual orientation.⁴²
Since Lawrence involved a statute that criminalized sodomy when engaged in
by same-sex couples but not identical conduct by different-sex couples, O’Connor’s
concurring opinion relied on the rational basis standard of review. Acknowledging
that most laws that are reviewed under the rational basis standard survive
constitutional scrutiny, O’Connor nevertheless noted that “[w]hen a law exhibits such
a desire to harm a politically unpopular group, we have applied a more searching
form of rational basis review to strike down such laws under the Equal Protection
Clause.”⁴³ Citing Romer, O’Connor extended this argument further, contending that
“[m]oral disapproval of this group, like a bare desire to harm the group, is an interest
that is insufficient to satisfy rational basis review under the Equal Protection Clause.
. . . The Texas sodomy law raises the inevitable inference that the disadvantage

³⁵ Id. at 586-592.
³⁶ Id. at 592-98.
³⁷ Id. at 599.
³⁸ Id. at *599-605.
³⁹ Id. at 579.
⁴⁰ City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
⁴¹ Id.
⁴² Romer v. Evans, 517 U.S. 620, 642 at n1 (1996) (Scalia, J., dissenting).
⁴³ Lawrence v. Texas, 539 U.S. 558, 580 (2003).

imposed is born of animosity toward the class of persons affected.”⁴⁴ As with the
Colorado constitutional amendment at issue in Romer, therefore, O’Connor
concluded that the Texas statute violated the Equal Protection Clause. Despite this
conclusion, O’Connor was careful to note that not all laws that distinguish between
heterosexuals and homosexuals would violate equal protection, specifically noting
that an interest in preserving national security or the traditional institution of
marriage could constitute a legitimate governmental interest.⁴⁵
Although no other member of the Court signed on to O’Connor’s concurring
opinion, the majority opinion, which found the equal protection argument “tenable,”
appeared to favor the privacy approach because of its broader effect.⁴⁶ The dissent,
however, disagreed with O’Connor’s equal protection analysis, arguing that the
Texas statute does not discriminate because it applies equally to men and women, as
well as to heterosexuals and homosexuals, all of whom are subject to the same
prohibition against engaging in same-sex sodomy.⁴⁷
III. Conclusion
Because many observers had expected the Court to issue a ruling on the more
narrow equal protection grounds favored by O’Connor, the Court’s privacy ruling
was more sweeping than predicted.⁴⁸ The broad decision in Lawrence is sure to have
lasting consequences for other cases involving, among other issues, sexual privacy
and gay rights. Some of these potential consequences are highlighted below.
Immediate Consequences
One immediate effect of the Court’s ruling in Lawrence was to invalidate all
thirteen of the existing state anti-sodomy laws, regardless of whether they applied to
homosexual couples only or to all couples both heterosexual and homosexual. Had
the Court issued its ruling on the more narrow equal protection grounds favored by
O’Connor, the effect of the decision would have been to invalidate only those state
statutes that discriminated against gays by prohibiting homosexual sodomy
exclusively. Since the Court issued a broader ruling that the government cannot
criminalize private, consensual, adult sexual behavior, the Lawrence case appears to
create a more expansive right to sexual privacy that prohibits the states from making
sodomy a crime for anyone, homosexual or heterosexual.
In another development, the Court also vacated the Kansas Court of Appeals’
ruling in Limon v. Kansas, a similar case involving an equal protection challenge to

⁴⁴ Id. at 582-83.
⁴⁵ Id. at 585.
⁴⁶ Id. at 574-75.
⁴⁷ Id. at 599-600.
⁴⁸ Linda Greenhouse, Justices, 6-3, Legalize Gay Sexual Conduct in Sweeping Reversal of
Court’s ‘86 Ruling, N.Y. Times, June 27, 2003, at A1.

a state law that treats homosexuals and heterosexuals differently.⁴⁹ Under Kansas
law, sodomy with a child between the ages of 14 and 16 is punishable with probation
if the partner is an older teenager of the opposite sex, but the same act is punishable
with a prison sentence if the partner is an older teenager of the same sex. As a result
of the Kansas statute, 18-year old Matthew Limon received a 17-year sentence for
engaging in consensual gay sex with a 14-year old boy, despite the fact that he would
have received a far lighter sentence for engaging in similar conduct with a youth of
the opposite sex. The Supreme Court ordered the Kansas court to reconsider the case
in light of the Lawrence ruling,⁵⁰ but the Court of Appeals of Kansas distinguished
the Lawrence case and upheld the sentence, ruling that the state’s interest in
protecting children provided a rational basis for criminalizing homosexual sodomy
more severely than heterosexual sodomy.⁵¹ The Kansas Supreme Court subsequently
issued a petition to review the lower court’s decision, but has not yet ruled in the
case.⁵²
Implications for Future Cases Involving Gay Rights
The Court’s broad decision in Lawrence is likely to prompt a series of
challenges to an array of governmental policies involving privacy interests and/or gay
rights. Indeed, the case, which appears to greatly expand constitutional protection for
sexual privacy, may give rise to challenges against statutes that prohibit same-sex
marriage, gay adoption, gays in the military, or similar issues. How the courts will
resolve these controversies, however, remains unclear.
On the one hand, the Court’s ruling emphasized that “our laws and tradition
afford constitutional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing, and education” and
that “persons in a homosexual relationship may seek autonomy for these purposes.”⁵³
If Lawrence is viewed as establishing a broad constitutional right to sexual privacy,
then the Court’s decision may be interpreted as supporting challenges to laws that
prohibit activities such as same-sex marriage or gay adoption.
On the other hand, the Court also distinguished the Lawrence decision from
cases involving minors or prostitution, and it noted that the case “does not involve
whether the government must give formal recognition to any relationship that
homosexual persons seek to enter.”⁵⁴ Indeed, the courts may point to other
government interests, such as an interest in preserving marriage or national security
for example, to distinguish the private sexual conduct involved in Lawrence from the
issues at stake in cases involving gay marriage or gays in the military.

⁴⁹ Limon v. Kansas, 539 U.S. 955 (2003).
⁵⁰ Charles Lane, Gay Rights Ruling Affects Kansas Case, Wash. Post (June 28, 2003), at A8.
⁵¹ State v. Limon, 32 Kan. App. 2d 369.
⁵² State v. Limon, NO. 00-85898-AS, 2004 Kan. LEXIS 284 (Kan. May 25, 2004).
⁵³ Lawrence v. Texas, 539 U.S. 558, 574 (2003).
⁵⁴ Id. at 578.

Like the courts, Congress may also respond to the Lawrence decision. For
example, several legislators in the 108^th Congress introduced proposals to amend the
Constitution to prevent same-sex marriage, and similar proposed constitutional
amendments have been introduced during the 109^th Congress.⁵⁵

⁵⁵ See, e.g., H.J.Res. 39, H.R. 1100, S.J.Res 1, and S.J.Res. 13.