Last edited: March 08, 2005

US Court Lifts Ban on Gay Sex in Texas

The Guardian, June 26, 2003

By David Teather in New York

The US supreme court yesterday overturned a Texan law banning sodomy between two men, in a landmark decision that gay rights advocates claimed was a “turning point” in American attitudes toward homosexuality.

The six-to-three verdict carries profound implications for gay rights in the US, effectively revoking anti-sodomy laws that exist in 13 states. Legal experts said the ruling also carries wider implications for the right to privacy.

The law in Texas allowed sodomy between a man and a woman but had made it a crime for two men to engage in what it described as “deviant sexual intercourse”. A similar distinction is made in Kansas, Oklahoma and Missouri.

Ruth Harlow, legal director of the Lambda Legal Defence and Education Fund, which brought the appeal on behalf of two Houston men, described the decision as “courageous”. She said the court was catching up with attitudes in the rest of American society.

“This is a historic day for gay Americans, and all Americans who believe in basic liberty.

“The court has said that all of us as adults have the liberty to choose who we love and how we express love for one another in our own bedrooms.”

The case stemmed from the prosecution of two men, John Geddes Lawrence and Tyron Garner, who were briefly jailed and fined $200 in 1998 after police found them having sex in their own apartment. The police had entered their home on a false report that a man with a gun was “going crazy”.

The ruling reverses a supreme court verdict 17 years ago, which upheld a case in Georgia and gave states the ability to punish homosexual behaviour, becoming a touchstone for gay activists. In a separate vote, that ruling was also overturned.

In yesterday’s verdict, Justice Anthony Kennedy wrote that the state cannot “demean the lives of homosexual persons” and said the law violated the constitutional right to privacy. He wrote that gay people have “the full right to engage in their conduct without the intervention of government”.

The case has pitted liberals and gay rights advocates against religious and conservative groups in the US.

The reverend Rob Schenck, president of the national clergy council, described the court’s decision as a “lamentable outcome”. He said: “The fact is that homosexual behaviour is immoral and it is wrong. The court has said today that morality, that matters of right and wrong, do not matter in the law.”

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O’Connor supported Mr Kennedy in the verdict. Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

Justice Scalia said the court had “signed on to the so-called homosexual agenda”.

In comments ahead of the judgment, the republican senator Rick Santorum had stirred controversy when he said that if sodomy were legalised “then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything”.

White House spokesman Ari Fleischer yesterday dodged questions on the president’s view of the verdict.

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.

Yesterday’s ruling apparently invalidates all of those laws as well as the legislation in Texas. The state had defended the law by claiming that it was protecting marriage and child-rearing.

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