Experts:
Court痴 Gay Sex Ruling Will Strike Down Laws in Other States
Fox
News , June 26, 2003
http://www.foxnews.com/story/0,2933,90513,00.html
WASHINGTON?The Supreme Court
ruling that struck down a Texas law banning gay sex on Thursday will have a
ripple effect on 13 other states across the country that have similar
anti-sodomy laws.
The 6-3 ruling overturned the court痴 decision 17 years
ago that states could punish homosexuals for what was historically considered
deviant sex.
The issue of states rights is a particularly touchy one
when it comes to legal matters, and state authorities often argue that federal
laws should not supercede their own.
As recently as 1960, every state had an anti-sodomy law.
Since then, the statutes have been repealed by lawmakers or blocked by state
courts in 37 states.
Of the 13 states with sodomy laws, four裕exas, Kansas,
Oklahoma and Missouri用rohibit oral and anal sex between same-sex couples.
The other nine輸labama, Florida, Idaho, Louisiana, Mississippi, North
Carolina, South Carolina, Utah and Virginia傭an consensual sodomy for
everyone.
Though seldom enforced by police, the state anti-sodomy
laws are sometimes invoked by judges to deny homosexuals legal custody of
their children, equal employment guarantees and other civil rights.
鄭s of two hours ago, they are all invalidated,? Fox
News Senior Judicial Analyst Andrew Napolitano said after the Supreme
Court痴 ruling Thursday.
But 鍍he practical effect of that is next to
nothing,? he said, because most states don稚 enforce their anti-sodomy
laws. 典hey池e practically unenforceable,? Napolitano said, adding that
police can稚 just barge into people痴 homes to find out if they池e
having illegal sex.
Thursday痴 Supreme Court ruling reversed a 1986
decision upholding state anti-sodomy laws similar to Texas?. Many legal
briefs filed in support of the two men in the Texas case argued that times
have changed since 1986, and that the court should catch up.
典hat痴 almost one of the reasons the court
invalidated the statute傭ecause Texas itself didn稚 enforce it within the
past 10 years with the exception of this one case,? Napolitano said.
At the time of the court痴 1986 ruling, 24 states
criminalized such behavior. States that have since repealed the laws include
Georgia, where the 1986 case唯owers v. Hardwick預rose.
Of the nine justices who ruled on the 1986 case, only
three remain on the court. Chief Justice William H. Rehnquist and Justice
Sandra Day O辰onnor sided with the majority in that case, and Justice John
Paul Stevens dissented.
釘owers was not correct when it was decided, and it is
not correct today,? Justice Anthony M. Kennedy wrote for the majority
Thursday.
Although laws forbidding homosexual sex were once
universal, those on the books now are rarely enforced but underpin other kinds
of discrimination, lawyers for the two Texas men whom the case centered around
argued in court.
鏑aw enforcement, our lawmakers, have better things to
do? than police people痴 bedrooms, criminal defense attorney Daniel Perez
told Fox News.
撤eople doing things behind closed doors, states can
stay out of it,? agreed former prosecutor Michael Worthy.
The Texas case began when a neighbor with a grudge
against John Geddes Lawrence and Tyron Garner faked a distress call to police,
telling them that a man was 堵oing crazy? in Lawrence痴 apartment.
Police went to the apartment and found the two men having anal sex. They were
each fined 200ドル and spent a night in jail for the misdemeanor sex charge in
1998.
Dale Carpenter, a law professor at the University of
Minnesota, said the court痴 decision 電id signal it was sympathetic to the
equal protection argument? of the 14th Amendment.
The home 妬s a sacred place in American law and in
constitutional law, and that is the principle that was vindicated in this
ruling today,? Carpenter said.
Attorneys for Texas defended the sodomy law, saying it
was in keeping with the state痴 interest in protecting marriage and child
rearing. Gay sex, the state argued, 塗as nothing to do with marriage or
conception or parenthood and it is not on a par with these sacred choices.?
The state had urged the court to draw a constitutional
line 殿t the threshold of the marital bedroom.?
But Texas lost its argument in the end.
鏑iberty protects the person from unwarranted
government intrusions into a dwelling or other private places. In our
tradition the State is not omnipresent in the home,? Kennedy wrote.
典he state cannot demean their existence or control
their destiny by making their private sexual conduct a crime . adults may
choose to enter upon this relationship in the confines of their homes and
their own private lives and still retain their dignity as free persons.?
Justices Stevens, David Souter, Ruth Bader Ginsburg and
Stephen Breyer agreed with Kennedy in full. O辰onnor agreed with the outcome
of the case but not all of Kennedy痴 rationale.
Rehnquist and Justices Antonin Scalia and Clarence Thomas
dissented.
Napolitano said he disagreed with Scalia痴 decision,
but he defended the justice痴 rationale.
典his is not the first time he has made this
argument,? Napolitano said.
Scalia was arguing that 妬t is a states right issue,?
Napolitano said. 滴e may not have voted for this law . but he believes the
people of Texas should be able to establish their own laws, not the nine
unelected justices in Washington, D.C.?
But Napolitano added his own opinion: 的t痴 not a
state痴 issue, it痴 a privacy issue.?
Although the majority opinion said the Texas case
didn稚 妬nvolve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter,? Scalia said the ruling
invites laws allowing gay marriage.
典his reasoning leaves on shaky, pretty shaky grounds,
state laws limiting marriage to opposite-sex couples,? Scalia wrote.
Thomas wrote separately to say that while he considers
the Texas law at issue 砥ncommonly silly,? he couldn稚 find any general
right to privacy in the Constitution.
. Fox News? Liza Porteus and The Associated Press
contributed to this report.
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