Court Strikes Down Texas Sodomy Law
Ruling establishes new legal ground in privacy,
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repealed by lawmakers or blocked by state courts, the AP reported.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
“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
Robert Knight, a spokesman for the conservative Culture
and Family Institute, said Thursday’s ruling would have “very real
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.
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