Last edited: February 13, 2005

Supreme Court Strikes Down Texas Sodomy Law

Ruling establishes new legal ground in privacy, experts say

CNN, June 26, 2003

WASHINGTON—The Supreme Court Thursday struck down a Texas state law banning private consensual sex between adults of the same sex in a decision gay rights groups hailed as historic.

The 6-3 decision by the court reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.

Legal analysts said the ruling enshrines for the first time a broad constitutional right to sexual privacy, and its impact would reach beyond Texas and 12 other states with similar sodomy laws applied against the gay and lesbian community, and into mainstream America.

“The petitioners are entitled to respect for their private lives,” Justice Anthony Kennedy wrote for the court’s majority. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

As recently as 1960, every state had an anti-sodomy law, according to The Associated Press. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts, the AP reported.

Of the 13 states with sodomy laws, four—Texas, Kansas, Oklahoma and Missouri—prohibit oral and anal sex between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

Thursday’s ruling apparently invalidates those laws, as well. CNN legal analyst Jeffrey Toobin said the decision appeared to strike down most laws governing private sexual conduct, but he said laws governing marriage would be unaffected. (Full story)

Laws that might be most vulnerable would be ones that govern fornication and adultery, said Diana Hassel, associate professor of law at Roger Williams University.

And while Hassel said “only a handful” of states remain still have such laws, Thursday’s Supreme Court ruling establishes a benchmark in privacy that had not existed.

Hassel said the ruling, based on due process arguments rather than equal protection laws, would push out new areas in privacy. “This is going to carve out protection for private sexual behavior,” Hassel said. “As long as it’s between consenting adults, this ruling would appear to cover it.”

Case stemmed from mistaken arrest Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed in full with Kennedy’s opinion.

Justice Sandra Day O’Connor agreed with the final outcome of the case, but did not join the court in reversing the high court’s 1986 decision in the similar Georgia case Bowers v. Hardwick.

Religious conservatives quickly criticized the decision, and in a sharply worded dissent, Justice Antonin Scalia said the court “has taken sides in the culture war.” Scalia—joined by Chief Justice William Rehnquist and Justice Clarence Thomas—said the court “has largely signed on to the so-called homosexual agenda.” (The dissent)

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda though normal democratic means,” Scalia wrote.

But with Thursday’s decision, he wrote, the court was “departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed.”

Thursday’s ruling stemmed from the 1998 arrest of two Houston men, John Geddes Lawrence and Tyron Garner, under a 28-year-old Texas law making same-sex intercourse a crime. The court found that law and others like it violated the due process clause of the 14th Amendment.

“This is giant leap forward to a day where we are no longer branded as criminals and where that is no longer accepted by the most powerful court in the country,” said Ruth Harlow, of the Lambda Legal Defense Fund, who represented the two men.

Lawrence told reporters Thursday that he and Garner were happy with the outcome, but “never chose to be public figures or to take on this fight.”

“Not only does this ruling let us get on with our lives, but it opens the door for gay people all over the country to be treated equally,” he said.

Court reversed 1986 ruling The Supreme Court was widely criticized 17 years ago when it upheld an anti-sodomy law similar to the Texas law in Bowers v. Hardwick. The ruling became a rallying point for gay activists. Justice Kennedy concluded that decision “was not correct when it was decided, and it is not correct today,” Kennedy wrote.

Harlow said striking down the Bowers decision could lead to other decisions favorable to gays in family law and employment discrimination cases.

Robert Knight, a spokesman for the conservative Culture and Family Institute, said Thursday’s ruling would have “very real consequences.”

Knight warned that it would undermine the legal foundation of marriage, lead to more deaths among gay men from sexually transmitted diseases and lead to schoolchildren being taught “that homosexual sodomy is the same as marital sex.”

“This is social engineering by a court. It will have very bad effects on the idea of our republican form of government,” Knight said. “If a government like Texas cannot legislate on public health, safety and morals, what can it legislate about?”

And the Rev. Rob Schenck, co-founder of the National Clergy Council, called it “a lamentable outcome.”

The case is Lawrence and Garner v. Texas, case no. 02-0102.

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