Hardwick that found no privacy protection for consensual sex between homosexuals was "wrongly decided". The Court of Appeals decided to review the case en banc.
Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel's decision and upheld the law's constitutionality 7–2, denying both the substantive due process and equal protection arguments.
Quinn had discretionary authority to charge them for a variety of offenses and to determine whether to arrest them.
When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check the statutes to be certain they covered sexual activity inside a residence.
Defendants convicted, Harris County Criminal Court (1999), rev'd, 2000 WL 729417 (Tex. Legal punishments for sodomy often included heavy fines, life prison sentences, or both, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy.
Hodges which recognized same-sex marriage as a fundamental right under the United States Constitution.
In Griswold for the first time the Supreme Court recognized that couples, at least married couples, had a right to privacy, drawing on the Fourth Amendment's protection of private homes from searches and seizures without a warrant based on probable cause, the Fourteenth Amendment's guarantee of due process of law in the states, and the Ninth Amendment's assurance that rights not specified in the Constitution are "retained by the people". Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home.
In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. The Court rejected this challenge in a 5 to 4 decision.Justice Byron White's majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a right to sodomy.Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. Its outcome was celebrated by gay rights advocates, and set the stage for further reconsiderations of standing law, including the landmark case of Obergefell v. The case attracted much public attention, and a large number of amici curiae ("friends of the court") briefs were filed.Lacking transportation home, the couple were preparing to spend the night.