Counsel Discusses The Landmark Case
/ PlanetOut.com Network, June 26, 2003
By Ann Rostow
Harlow of Lambda Legal Defense and Education Fund, the lead attorney in Lawrence
v. Texas, spoke to the press via a conference call following the high
Ruth Harlow of
Lambda Legal Defense and Education Fund, the lead attorney in Lawrence v.
Texas, spoke to the press via a conference call following the announcement
of the U.S. Supreme Court's landmark 6-3 gay rights ruling Thursday morning.
Harlow called the
majority opinion by Anthony Kennedy "magnificent," and "very
powerful." Kennedy, she said, "did a wonderful job in making clear
that the right to (constitutional) protection belongs to all Americans."
very clear," she went on, "that gay people are entitled to the same
respect and protection under the Constitution as any one else, (and that) the
state does not have the power to regulate adult conduct in this way when it's
consensual and private."
Kennedy wrote his
right-to-privacy opinion on behalf of five justices, while Sandra Day O'Connor
drafted her own concurring opinion based on the right to equal protection.
Harlow also had praise for O'Connor's concurrence, which argued that Texas's
law singling out same-sex intimacy for criminal penalties impermissibly
discriminates against gay men and lesbians, even under the lowest standard of
Harlow said the
opinion will have strong repercussions for the future of gay rights litigation
in other areas. By overturning the 1986 ruling in Bowers
v. Hardwick, the court has stripped conservative advocates of their
major anti-gay Supreme Court precedent, and struck the nation's 13 remaining
sodomy laws. In doing so, the court has also made clear that morality alone
cannot justify constitutionally suspect laws. The combination, Harlow said,
"puts (the GLBT community) on a much stronger footing to attack other
forms of discrimination."
Harlow said, "recognizes that gay people are entitled to the same respect
and protection under the Constitution as any one else, and it does away with
the idea that states can defend discrimination just by an appeal (to tradition
or morality)." In light of the Lawrence decision, Harlow believes
that states "will have a very hard time defending discrimination" in
challenge to the Texas sodomy law was based on two arguments. First, that the
statute violated privacy rights, which stem from the Constitution's order that
the state may not deprive a citizen of liberty without the due process of law.
Second, that the law trampled on the right to equal protection, by
criminalizing acts for same-sex couples that were legal for heterosexuals.
GLBT analysts had hoped for an equal protection ruling, Harlow said she was
not disappointed that the court chose the privacy route.
Calling the ruling a "resounding
victory," Harlow said she thought the court made a conscious
determination that an equal protection ruling would not have been broad enough
in this case, and that the majority wanted to make a clear statement on the
limits of government power, as well as the equality rights of gay Americans.
The court, she said, "was very careful to emphasize that equality and
liberty go together, and I think this decision, as well as (Justice O'Connor's
concurrence), powerfully protects our claim under the Equal Protection
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