How Lawrence v. Texas Undermined Fornication Laws

What did the Supreme Court decide in Lawrence v. Texas?

In Lawrence v. Texas, decided on June 26, 2003, the Supreme Court held that a state may not make private, consensual sexual conduct between adults a crime ^[1]. The case was argued on March 26, 2003, and concerned section 21.06(a) of the Texas Penal Code, which made it an offense to engage in deviate sexual intercourse, as the code called it, with a person of the same sex ^[1].

The facts were simple. Houston police, answering a reported weapons disturbance, entered the apartment of the petitioner Lawrence and found him with another man, Garner, engaged in a private, consensual act ^[1]. Both were arrested, held overnight and convicted before a justice of the peace; after obtaining a trial de novo, they pleaded no contest and were each fined $200 plus $141.25 in court costs ^[1].

The Court reversed by six votes to three. Justice Anthony Kennedy wrote for himself and Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, and rested the decision on the Due Process Clause of the Fourteenth Amendment ^[1]. Justice Sandra Day O'Connor agreed with the result but relied on the Equal Protection Clause, because the Texas law punished conduct only when the partners were of the same sex ^[1].

The majority also defined what the case did not involve: minors, people who might be injured or coerced or who could not easily refuse consent, public conduct, prostitution, and any question of whether the government must formally recognize a relationship ^[1]. Those limits remain central to how lower courts read the decision.

Timeline

1. 1955The American Law Institute's Model Penal Code recommends no criminal penalties for consensual sexual relations conducted in private.
2. 1972March 22: Eisenstadt v. Baird ties the right of privacy to the individual, married or single.
3. 1986June 30: Bowers v. Hardwick upholds Georgia's sodomy law by 5 votes to 4.
4. 2003June 26: Lawrence v. Texas overrules Bowers by 6 votes to 3; Justice Scalia's dissent lists fornication laws among those called into question.
5. 2005January 14: the Supreme Court of Virginia strikes down the state's fornication law in Martin v. Ziherl.
6. 2019Utah's fornication section is repealed as of May 14 (S.B. 43, signed March 27).
7. 2022June 24: Dobbs says it casts no doubt on non-abortion precedents; July 1: Idaho's repeal of its fornication law takes effect.
8. 2023Minnesota repeals its fornication statute, section 609.34.

Why did the Court overrule Bowers v. Hardwick?

The Court overruled Bowers v. Hardwick because it concluded that Bowers had misread both the liberty at stake and the history behind sodomy laws. Bowers, decided on June 30, 1986 by five votes to four, had upheld Georgia's sodomy statute, which allowed a prison term of one to twenty years, in a case that began when Michael Hardwick was charged in August 1982 ^[2]. Justice Byron White had framed the issue as whether the Constitution conferred "a fundamental right upon homosexuals to engage in sodomy," and answered no ^[2]. Justice Lewis Powell, who supplied the fifth vote, said after his retirement that he had probably made a mistake in that case ^[14].

The Lawrence majority said that framing revealed the Court's own failure to appreciate the extent of the liberty at stake ^[1]. It stated that Bowers "was not correct when it was decided, and it is not correct today" ^[1]. It also adopted the reasoning of Justice Stevens's 1986 dissent, which had argued that a majority's view of a practice as immoral is not a sufficient reason to uphold a law against it, whether the people involved are married or unmarried ^[1][2].

The Court relied on a line of privacy decisions to make that point. It described Griswold v. Connecticut (1965) as the most pertinent starting point, and it quoted Eisenstadt v. Baird (1972), where the Court had tied the right of privacy to "the individual, married or single" ^[1][4]. Read together with later contraception and abortion cases, those precedents showed, in the majority's account, that the protection could not be confined to married adults ^[1].

History and practice also mattered. The majority pointed to the American Law Institute's 1955 Model Penal Code, which recommended no criminal penalties for consensual sexual relations conducted in private, and noted that the number of states with laws of the kind upheld in Bowers had fallen to 13, four of which enforced them only against same-sex conduct ^[1]. Bowers itself had stressed that until 1961 all fifty states outlawed sodomy ^[2]. For the background of the 1986 case, see Bowers v. Hardwick, the ruling Lawrence overturned.

What did Justice Scalia say about fornication laws?

Justice Antonin Scalia argued that the majority's reasoning endangered fornication laws along with many other morals-based statutes. In a dissent joined by Chief Justice William Rehnquist and Justice Clarence Thomas, he listed state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity as laws that Bowers had been needed to sustain and that the decision now called into question ^[1]. He did not analyze fornication separately; it appears as one item in that list.

Scalia also criticized the majority's use of Eisenstadt. In his view, that 1972 case had invalidated a law on the distribution of contraceptives to unmarried persons solely on equal-protection grounds, and so did not establish a due-process right that Lawrence could build on ^[1]. The Eisenstadt opinion itself shows why the point mattered: the Court had expressly declined to decide whether the unmarried had a fundamental right of access to contraceptives ^[4].

Justice Thomas added a short separate dissent. He wrote that if he were a member of the Texas Legislature he would vote to repeal the law, but he joined Scalia in rejecting the constitutional holding ^[1]. The majority opinion, for its part, never used the word fornication ^[1].

Are fornication laws unenforceable after Lawrence?

In practice, yes: fornication laws are widely treated as unenforceable against consenting adults in private, although the Supreme Court has never ruled on one directly. Cornell's Legal Information Institute states the conclusion plainly, explaining that because Lawrence protects private sexual acts under the Due Process Clause, fornication laws cannot be enforced ^[3]. It adds that challenging an unenforced law in court is difficult, because a lawsuit generally requires actual harm, so these statutes tend to remain until legislators repeal them ^[3].

The clearest test came in Virginia. In Martin v. Ziherl, a woman sued her former partner for transmitting a disease he allegedly knew he had; a Richmond trial judge dismissed the claim because she had been engaged in the illegal act of fornication ^[5]. On January 14, 2005, the Supreme Court of Virginia struck down the fornication law (269 Va. 35), in an opinion by Justice Elizabeth B. Lacy from which no justice dissented, while making clear that the state could still regulate sexual conduct in public ^[5][15]. The ACLU of Virginia, which filed a friend-of-the-court brief, argued that Lawrence had made that outcome predetermined ^[5].

Georgia reached a similar result by another route. On January 13, 2003, about five months before Lawrence, the Supreme Court of Georgia held that the right to privacy in the state constitution barred the use of its fornication statute against a 16-year-old whose conduct with his 16-year-old girlfriend was private, unforced, non-commercial and between people legally able to consent ^[9]. Because that ruling rests on the Georgia Constitution, it does not depend on how federal doctrine evolves.

How have states responded since 2003?

States have responded slowly, mostly by repealing statutes that had become dead letters. Virginia's legislature formally repealed section 18.2-344 by Acts 2020, chapter 122, fifteen years after its supreme court struck the law down ^[6]. Utah's fornication section, which had made the offense a class B misdemeanor, is marked repealed as of May 14, 2019, under a bill the governor signed on March 27 ^[12][16], and Minnesota's section 609.34 was repealed by its 2023 session laws ^[13].

Idaho shows how directly lawmakers have relied on Lawrence. At an October 25, 2021 meeting, a subcommittee of the Idaho Criminal Justice Commission noted that the state's adultery and fornication statutes criminalized constitutionally protected conduct, citing Lawrence, and concluded that both should be repealed ^[7]. The same notes described the crimes-against-nature statute as outdated, vague and plainly unconstitutional as written, and the group agreed to replace it with narrower offenses such as sexual abuse of an animal ^[7]. Senate Bill 1325 then passed both chambers, was signed on March 22, 2022, and took effect on July 1, 2022 ^[8].

Elsewhere, statutes remain in place. Georgia's fornication section is still in its code, now limited by the state's own case law ^[9], and several other states, mostly in the South, keep fornication or cohabitation offenses that have not been repealed. The state-by-state picture, with penalties, is set out in fornication laws still on the books.

Could Lawrence be overturned after Dobbs?

Lawrence remains good law in October 2026, but Dobbs v. Jackson Women's Health Organization renewed debate about its foundations. On June 24, 2022, the Court overruled its abortion precedents in an opinion by Justice Samuel Alito, joined by Justices Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett; Chief Justice John Roberts concurred in the judgment, and Justices Breyer, Sotomayor and Kagan dissented ^[10].

The majority stated that nothing in its opinion should be read to cast doubt on precedents that do not concern abortion ^[10]. It distinguished cases such as Lawrence on the ground that abortion, unlike the rights at issue there, involves the destruction of a "potential life" ^[10]. In the majority's account, the dissent's warnings about other rights were unfounded.

Justice Thomas wrote a separate concurrence going further. He said that the Court "should reconsider all of this Court's substantive due process precedents," naming Griswold, Lawrence and Obergefell, and no other justice joined that opinion ^[11]. No decision overruling or narrowing Lawrence was found for this article as of October 2026. If such a case ever succeeded, the federal barrier to enforcing fornication statutes would weaken, although state constitutional rulings such as Georgia's would remain. For the earlier privacy cases on which Lawrence built, see Griswold v. Connecticut and the right to privacy.

Frequently asked questions

What was the vote in Lawrence v. Texas?

The vote was 6-3. Five justices, led by Justice Kennedy, formed the majority on due-process grounds, and Justice O'Connor concurred in the judgment on equal-protection grounds. Justices Scalia and Thomas and Chief Justice Rehnquist dissented.

Who wrote the majority opinion?

Justice Anthony Kennedy wrote it, joined by Justices Stevens, Souter, Ginsburg and Breyer. The opinion grounded the decision in the Due Process Clause of the Fourteenth Amendment and expressly overruled Bowers v. Hardwick (1986).

Does Lawrence protect adultery?

The Court did not say. Adultery involves a spouse who is not a party to the relationship, and the majority confined its holding to private, consensual conduct between adults without addressing marriage. Justice Scalia's dissent listed adultery laws, alongside fornication laws, among those called into question, and several states still list adultery as a misdemeanor.

Why weren't fornication laws struck down at the same time?

Because the Supreme Court decides only the case before it. Lawrence concerned a Texas same-sex sodomy statute, so no fornication law was at issue. Fornication statutes have instead been struck down or limited by state courts, as in Georgia in 2003 and Virginia in 2005, or repealed by legislatures.

Does Lawrence v. Texas apply to minors or sex in public?

No. The majority stated that the case did not involve minors, coercion, public conduct or prostitution. States therefore keep the power to punish sexual acts in public places or with people unable to consent, even when the statute uses the old word fornication.

Is Lawrence v. Texas still good law?

Yes, as of October 2026 it has not been overruled. The Dobbs majority in 2022 said its abortion ruling cast no doubt on such precedents, although Justice Thomas, writing alone, urged the Court to reconsider Lawrence, Griswold and Obergefell.