Determined whether a criminal statute against same-sex sexual relations violated constitutional rights of lesbians and gay men.
In June 2003, the Supreme Court issued its landmark decision in Lawrence v. Texas, recognizing for the first time that private, consensual sexual relations between adults are a matter of core identity that cannot be disrupted or prohibited by government. Legal Momentum filed a brief as amicus curiae in this case.
Legal Momentum's brief, prepared with the assistance of the law firm of Irell and Manella, argued that the Texas statute prohibiting same-sex sexual relations unlawfully discriminated on the basis of sex, in two ways. First, the statute used the law to impose a gender stereotype that, while deeply familiar, is nonetheless a sex role preference that the government should enforce, especially not through the criminal law: that women should be sexually intimate only with men, and that men should be sexually intimate only with women. While at one time – in cases such as Bradwell v. Illinois, 83 U.S. (16 Wall) 130 (1872), where the Supreme Court upheld the exclusion of women from the practice of law on the grounds that women belonged in the home rather than the courtroom – such state enforcement of "proper" roles was seen as acceptable, the Supreme Court in recent decades has utterly rejected it. We argued that the Texas law was especially problematic because it used the threat of arrest, conviction and punishment to enforce the state’s view of what constitutes gender-appropriate conduct. Second, the statute relied on a facial gender classification, because it made criminality turn on the gender of the actors involved in the conduct – that is, if either of the petitioners had been the other sex, there would have been no crime under Texas law.