The State cannot demean a homosexual person's 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.
In Bowers v Hardwick (1986), the United States Supreme Court held that the due process clause of the Federal Constitution's Fourteenth Amendment did not confer a fundamental right upon homosexuals to engage in consensual sodomy. The case also rendered valid a Georgia statute that criminalized acts of consensual sodomy, regardless of whether the participants were of the same sex, even when the acts in question occurred in the privacy of the home. Subsequently, police officers in Texas entered a man's apartment when it responded to a reported weapons disturbance and observed the man engaging in anal sexual intercourse with another man. Although this conduct was in private and consensual, the two men were arrested and charged with violating a Texas sodomy statute which made it a misdemeanor for a person to engage in "deviate sexual intercourse" with another individual of the same sex. The men were convicted in Texas' Harris County Criminal Court and were assessed fines of $200 each. In affirming, the Court of Appeals of Texas concluded that the statute did not violate the Fourteenth Amendment's equal protection and due process clauses, and that Bowers v Hardwick was controlling as to the federal due process aspect of the case.
Did the Texas sodomy statute violate the Fourteenth Amendment’s equal protection and due process clauses?
The Court held that the convictions under the Texas statute violated the two men's vital interests in liberty and privacy protected by the due process clause. It held that the statute, although purporting to do no more than prohibit a particular sexual act, sought to control a personal relationship that was within the liberty of persons to choose without being punished as criminals. The Court further held that the stigma imposed by the statute was not trivial and that the statute furthered no legitimate state interest that could justify the statute's intrusion into the personal and private life of the individual. As to the applicability of Bowers v Hardwick in the present case, the Court held that the aforementioned case was overruled, for among other reasons, the historical premises relied upon in Bowers were not without doubt and, at the very least, were overstated. According to the Court, the foundations of Bowers had subsequently sustained serious erosion from more recent Supreme Court decisions, and criticism of Bowers by some scholars and state courts had been substantial and continuing. More importantly, the Court ruled that there had been no individual or societal reliance on Bowers of the sort that could have counseled against overturning Bowers' holding once there were compelling reasons to do so.