Last edited: December 05, 2004

Supreme Court Strikes Down Gay Sex Ban

Associated Press, June 26, 2003

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, lawyers said.

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 court.

“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 law.

“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 courts.

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 advance.

“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 government.”

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