Supreme
Court Strikes Down Gay Sex Ban
Associated Press, June 26,
2003
WASHINGTON—The Supreme Court
struck down a ban on gay sex Thursday, ruling that the law was an
unconstitutional violation of privacy.
The 6-3 ruling reverses course from a ruling 17 years ago
that states could punish homosexuals for what such laws historically called
deviant sex.
The case is a major reexamination of the rights and
acceptance of gay people in the United States. More broadly, it also tests a
state’s ability to classify as a crime what goes on behind the closed
bedroom doors of consenting adults.
Thursday’s ruling invalidated a Texas law against
“deviate sexual intercourse with another individual of the same sex.”
Defending that law, Texas officials said that it promoted
the institutions of marriage and family, and argued that communities have the
right to choose their own standards.
The law “demeans the lives of homosexual persons,”
Justice Anthony M. Kennedy wrote for the majority.
Laws forbidding homosexual sex, once universal, now are
rare. Those on the books are rarely enforced but underpin other kinds of
discrimination, lawyers for two Texas men had argued to the court.
The men “are entitled to respect for their private
lives,” Kennedy wrote.
“The state cannot demean their existence or control
their destiny by making their private sexual conduct a crime,” he said.
Justices John Paul Stevens, David Souter, Ruth Bader
Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day
O’Connor agreed with the outcome of the case but not all of Kennedy’s
rationale.
Chief Justice William H. Rehnquist and Justices Antonin
Scalia and Clarence Thomas dissented.
“The court has largely signed on to the so-called
homosexual agenda,” Scalia wrote for the three. He took the unusual step of
reading his dissent from the bench.
“The court has taken sides in the culture war,”
Scalia said, adding that he has “nothing against homosexuals.”
The two men at the heart of the case, John Geddes
Lawrence and Tyron Garner, have retreated from public view. They were each
fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.
The case began when a neighbor with a grudge faked a
distress call to police, telling them that a man was “going crazy” in
Lawrence’s apartment. Police went to the apartment, pushed open the door and
found the two men having anal sex.
As recently as 1960, every state had an anti-sodomy law.
In 37 states, the statutes have been repealed by lawmakers or blocked by state
courts.
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.
The Supreme Court was widely criticized 17 years ago when
it upheld an antisodomy law similar to Texas’. The ruling became a rallying
point for gay activists.
Of the nine justices who ruled on the 1986 case, only
three remain on the court. Rehnquist was in the majority in that case—Bowers
v. Hardwick—as was O’Connor. Stevens dissented.
A long list of legal and medical groups joined gay rights
and human rights supporters in backing the Texas men. Many friend-of-the-court
briefs argued that times have changed since 1986, and that the court should
catch up.
At the time of the court’s earlier ruling, 24 states
criminalized such behavior. States that have since repealed the laws include
Georgia, where the 1986 case arose.
Texas defended its sodomy law as in keeping with the
state’s interest in protecting marriage and child-rearing. Homosexual
sodomy, the state argued in legal papers, “has 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 “at the threshold of the marital bedroom.”
Although Texas itself did not make the argument, some of
the state’s supporters told the justices in friend-of-the-court filings that
invalidating sodomy laws could take the court down the path of allowing
same-sex marriage.
The case is Lawrence v. Texas, 02-102.
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