Last edited: February 06, 2005

Intolerance Suffers a Judicial Setback

The Commercial Appeal, June 28, 2003
P. O. Box 334, Memphis, TN 38101
Fax: 901-529-6445 Email:

The U.S. Supreme Court ruling this week that overturned a Texas anti-sodomy law will affect the lives of homosexual Americans to an extent that cannot yet be gauged. But the fact that a conservative court reversed a previous high-court ruling on this sensitive issue suggests how much intolerance has receded as an acceptable form of statutory expression.

States don’t keep old sodomy laws on the books out of a zeal for prosecution. Their main purpose is to stigmatize, and in some situations deny full citizenship to, adults whose private, consensual sexual conduct with other adults doesn’t matter very much to most of their fellow citizens.

That’s not to say laws against homosexual acts are never enforced or used for selective harassment of gays. Enforcement of the Texas statute by police who accidentally encountered two men engaged in sex led to the case, Lawrence vs. Texas, the court considered.

John Geddes Lawrence and Tyron Garner were prosecuted for committing an illegal sex act after police who were investigating a nonexistent disturbance arrested them. It was an unusual prosecution. But simply being identified as a member of the minority in terms of sexual orientation stigmatizes gays and lesbians as criminals in states such as Mississippi, Texas and Alabama, where sodomy laws have not been repealed.

The high court’s 6-3 ruling that threw out the convictions of Lawrence and Garner on constitutional grounds officially erases that stigma. It may have other ramifications as well.

More children might find loving homes with parents who are suited to the tasks associated with adoption, but are disqualified because of their presumed “criminal” behavior. Same-sex partners might see their rights expanded to share employment benefits and own property together. Discrimination on the basis of sexual orientation in such matters as employment and child custody might become more difficult.

And although the court’s majority opinion sought to distance that decision from the public debate over same-sex marriage, there has even been speculation that the ruling might affect laws that prohibit gay marriage. Such policy questions must be determined on their own merits.

In this week’s majority opinion, written by Justice Anthony Kennedy, the court made it clear that its 1986 decision in Bowers vs. Hardwick was wrong, then and now. It also noted properly that the argument over laws that ban homosexual acts are not just about sexual conduct; they’re also about such human rights as dignity and respect.

The court’s ruling won’t end the deeply divisive argument over the propriety of homosexual relationships, any more than Roe vs. Wade ended the controversy over abortion or Brown vs. Board of Education changed every segregationist’s heart. Branding and intimidation of homosexuals and attacks on their supposed “agenda” will remain elements of an intolerant, vocal crusade that has become a powerful force on the American political landscape.

But the opinion affirms the conservative view of most Americans that government’s right to interfere in personal affairs should be severely limited. And it moves homosexual Americans further along the road to full citizenship, which gays and open-minded heterosexuals can appreciate.

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