Apart from allowing same-sex couples to marry in California — which was itself momentous — the recent California Supreme Court ruling did something else important and notable: It reaffirmed the promise of Lambda Legal’s historic U.S. Supreme Court victory striking down all remaining state sodomy laws five years ago. This news is especially gratifying as we prepare to celebrate the fifth anniversary of Lawrence v. Texas this month.

We always knew that Lawrence was about so much more than sodomy laws — and so much more than sex. True, we began the case challenging Texas’s “homosexual conduct” law on behalf of our clients John Lawrence and Tyron Garner, who were literally dragged from John’s home one night for having private, consensual sex. But from the beginning, we argued for the fundamental right that all adults have to express private sexual intimacy without interference from the government. For the right that all people in this country have to be treated fairly under the law.

Lawrence overturned an earlier U.S. Supreme Court decision, Bowers v. Hardwick, which had upheld Georgia’s criminal sodomy law. At the time, sodomy laws were being used to justify wholesale discrimination against gay men and lesbians — keeping people from job opportunities, adoption and simply living their daily lives with dignity and respect. Bowers left all of this perfectly legal, because it asked the wrong legal question: Did gay people have a constitutional right to sodomy?

If this sounds familiar, it should. Opponents in our marriage cases often try to convince courts that we are seeking a right to “same-sex marriage,” not a right to marry that all people share. In deciding our marriage case (brought with lead counsel NCLR, the ACLU and others), the California Supreme Court did not buy the “same-sex marriage” argument. It found that some rights, like the right to sexual intimacy we secured in Lawrence, are so fundamental that they cannot be taken away from anyone. This, the court said, was true for marriage as well.

Additionally, the California Supreme Court cited Lawrence several times in its decision and used it to reject the notion that history and tradition can justify discrimination, quoting Lawrence’s now-familiar line: “…times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

“For this reason,” the California Supreme Court added, “the interest in retaining a tradition that excludes an historically disfavored minority group from a status that is extended to all others — even when the tradition is long-standing and widely shared — does not necessarily represent a compelling state interest….”

The weight of Lawrence in this case — and in other marriage cases — cannot be overstated. At five years old, Lawrence v. Texas is coming of age and informing a range of cases that involve liberty and fairness.

In fact, less than a week after the California marriage win, a federal appeals court panel issued a decision in the ACLU’s case challenging the military’s “Don’t Ask, Don’t Tell” policy that relied heavily on Lawrence, just as we’d urged in our friend-of-the-court brief. In the words of the court: “We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest….”

In other words: based on Lawrence, the military must prove that it has an important reason for enforcing “Don’t Ask, Don’t Tell” against a well-qualified servicemember. The case now returns to the lower court, where the military will attempt to make its case — something that will be harder now that the standards of liberty set in Lawrence have been held to apply. Meanwhile, we continue to put Lawrence to work in the fight for equality — it’s been cited in hundreds of cases addressing employment discrimination, custody rights, criminal law, and, of course, relationship recognition.

The lesson here, as we celebrate the Lawrence anniversary, is that all aspects of individual liberty and equality relate to each other. And they build upon each other.
As we secure the right to marry in a state like California it gives us added strength to pursue our work on all fronts. We are as much a part of this great nation as anyone else — and that recognition is perhaps the greatest legacy of Lawrence.