Court Strikes Down Gay Sex Ban
Associated Press, June 26,
By Anne Gearan, Associated Press Writer
WASHINGTON—What gay men and women do in the privacy of
their bedrooms is their business and not the government’s, the Supreme Court
said Thursday in a historic civil rights ruling striking down bans on what
some states have called deviate sex acts.
Gay rights advocates called the ruling, by a 6-3 vote,
the most important legal advance ever for gay people in the United States.
Two gay men arrested after police walked in on them
having sex “are entitled to respect for their private lives,” Justice
Anthony M. Kennedy wrote. “The state cannot demean their existence or
control their destiny by making their private sexual conduct a crime.”
In a lengthy, strongly worded dissent, the three most
conservative justices called the ruling a huge mistake that showed the court
had been co-opted by the “so-called homosexual agenda.”
“The court has taken sides in the culture war,”
Justice Antonin Scalia wrote for the three, suggesting the ruling would invite
laws allowing same-sex marriages.
The court voted to strike down a Texas law that made
homosexual sex a crime. The law allows police to arrest gays for oral or anal
sex, conduct that would be legal for heterosexuals.
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 invalidates all of those laws,
The case was the most significant of several released on
the last day of the court’s 2002-2003 term. Justices often choose the last
day to announce if they plan to retire, but no one did so Thursday.
In strikingly broad and contrite language, the court
overturned an earlier ruling that had upheld sodomy laws on moral grounds.
The Constitution’s framers “knew times can blind us
to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress,” Kennedy wrote.
Laws forbidding homosexual sex were once universal but
now are rare. Those on the books have been rarely enforced but underpin other
kinds of discrimination, lawyers for the two Texas men had argued to the
“This is unquestionably the most important gay rights
case ever,” said Matt Coles, director of the Lesbian and Gay Rights Project
at the American Civil Liberties Union.
“The court is saying that personal relationships,
intimate relationships that ... give your life meaning, that gay people have
the same right to those relationships that everyone else does.”
Houston District Attorney Charles A. Rosenthal Jr., who
argued in favor of the law before the high court, called the ruling a major
departure from earlier court statements.
“I am disappointed that the Supreme Court (majority)
did not allow the people of the state of Texas, through their elected
legislators, to determine moral standards of governance for this state.”
Texas had defended its sodomy law as in keeping with the
state’s interest in protecting marriage and child-rearing. Homosexual
sodomy, the state argued, “has nothing to do with marriage or conception or
parenthood and it is not on a par with these sacred choices.”
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 would have decided it on different constitutional grounds. She
also did not join in reversing the court’s 1986 ruling on the same subject.
Chief Justice William H. Rehnquist and Justices 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.
Although the majority opinion said the case did not
“involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter,” Scalia said the ruling
could open the way to laws allowing gay marriage.
“This reasoning leaves on pretty shaky grounds state
laws limiting marriage to opposite-sex couples,” Scalia wrote.
The ruling also threatens laws banning bestiality, bigamy
and incest, he wrote.
Thomas wrote separately to say that while he considered
the Texas law at issue “uncommonly silly,” he could not agree to strike it
down because he found no general right to privacy in the Constitution.
Thomas calls himself a strict adherent to the actual
words of the Constitution as opposed to modern-day interpretations. If he were
a Texas legislator and not a judge, Thomas said, he would vote to repeal the
“Punishing someone for expressing his sexual preference
through noncommercial consensual conduct with another adult does not appear to
be a worthy way to expend valuable law enforcement resources,” he wrote.
The two men at the heart of the case, John Geddes
Lawrence and Tyron Garner, 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.
“This ruling lets us get on with our lives and it opens
the door for gay people all over the country,” Lawrence said Thursday.
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
The Supreme Court was widely criticized 17 years ago when
it upheld a Georgia antisodomy law similar to that of 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.
“Bowers was not correct when it was decided, and it is
not correct today,” Kennedy wrote for the majority Thursday.
Kennedy noted that the current case does not involve
minors or anyone who might be unable or reluctant to refuse a homosexual
“The case does involve two adults who, with full and
mutual consent from each other, engaged in sexual practices common to a
homosexual lifestyle. Their right to liberty under (the Constitution) gives
them the full right to engage in their conduct without intervention of the
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