Supreme
Court Strikes Down Sodomy Laws
Gay.com
/ PlanetOut.com Network , June 26, 2003
By Ann Rostow
SUMMARY: The U.S. Supreme Court made history Thursday,
overturning a Texas law that led to the arrest of two men for having
consensual sex at home.
The U.S. Supreme Court on Thursday delivered the most
powerful gay rights opinion in history, overturning a Texas law that led to
the arrest of two men for having consensual sex at home.
Written by Justice Anthony Kennedy, the 6-3 decision in Lawrence
v. Texas strikes down sodomy laws throughout the country and overturns
the infamous 1986 opinion in Bowers v.
Hardwick . In Bowers, a 5-4 majority upheld Georgia痴 sodomy
law on the basis of traditional morality.
?Bowers was
not correct when it was decided,? wrote Kennedy, 殿nd it is not correct
today. It ought not to remain binding precedent. Bowers
v. Hardwick should be, and is now, overruled.?
Prior to the release of the Lawrence
decision, GLBT community analysts were torn between two hopes. Some wished the
court would rule against the Texas sodomy statute on privacy grounds,
establishing a right to noncommercial private consensual sex for all couples,
including gays and lesbians. Others would have preferred the court rule on the
grounds of equal protection, stating clearly that no state may pass a law that
discriminates on the basis of sexual orientation based on moral sentiments
alone (as does the Texas 滴omosexual Conduct Law? at the center of this
case).
In his strongly worded opinion, Kennedy took both sides
into account. The decision is based on the privacy rights embedded in the 14th
Amendment痴 order that no state 都hall deprive any person of life, liberty
or property without due process of law.? But Kennedy makes clear that the
determination to rule on privacy rather than equal protection was an effort to
make the opinion wider rather than narrower.
展ere we to hold the (Texas) statute invalid under the
Equal Protection Clause,? he explained, 都ome might question whether a
prohibition would be valid if drawn differently, say, to prohibit the conduct
both between same-sex and different-sex participants.?
Further, the opinion accomplishes both objectives by
articulating in no uncertain terms the basic equality and humanity owed to gay
men and lesbians under the Constitution.
典he petitioners,? wrote Kennedy, 殿re entitled to
respect for their private lives. The state cannot demean their existence or
control their destiny by making their private sexual conduct a crime.? The
drafters of the Constitution, he concluded, 徒new 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. As the Constitution endures, persons
in every generation can invoke its principles in their own search for greater
freedom.?
Ruth Harlow, Lambda Legal Defense and Education Fund痴
lead attorney in the case, called the opinion 杜agnificent.?
The potential influence of the ruling is outlined in
Justice Antonin Scalia痴 sarcastic dissent, which was joined by Justice
Thomas and Chief Justice Rehnquist. Scalia, who read his lengthy comment from
the bench, said the main opinion 電ismantles the structure of constitutional
law that has permitted a distinction to be made between heterosexual and
homosexual unions.?
的f moral disapprobation of homosexual conduct is 創o
legitimate state interest,樗 he continued, 殿nd if, as the court coos
... ?(intimate conduct) can be but one element in a personal bond that is
more enduring,? what justification could there possibly be for denying the
benefits of marriage to homosexual couples??
Interestingly, Scalia cavalierly dismissed the single
argument that conservatives have raised in defense of discriminatory marriage
laws, continuing: 鉄urely not the encouragement of procreation, since the
sterile and the elderly are allowed to marry.?
Justice Sandra Day O辰onnor took her own route,
concurring with the five justices in the majority, but writing a separate
opinion based on equal protection analysis. O辰onnor, who voted in the Bowers
majority, declined to join the majority in overruling the 1986 privacy rights
opinion. Instead, O辰onnor repeated the essential theme of 1996痴 Romer
v. Evans (which struck a Colorado constitutional amendment prohibiting gay
rights laws), ruling that the Texas law singles out a class of people for
disparate treatment based on animosity alone, and thus fails the most minimal
tests used to judge the constitutionality of a law under the Equal Protection
Clause.
In a one-page comment, Justice Thomas agreed with
Scalia痴 analysis, but called the Texas sodomy law 砥ncommonly silly.?
的f I were a member of the Texas Legislature,? he
wrote, 的 would vote to repeal it.?
The Lawrence v. Texas
case stemmed from the 1998 arrest of two Houston men who were having sex in
their own bedroom when the police entered their home on a false emergency
call. The two men, John Lawrence and Tyron Garner, were arrested and jailed
for a night.
In a press release, Lambda Legal Defense said
Thursday痴 high court ruling 都tarts an entirely new chapter in our fight
for equality for lesbians and gay men.?
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