Repeal of Sodomy Ban Echoes Across U.S.
2003 ruling on Texas statute frequently cited in
sexual privacy cases
Dallas Morning News, March 11, 2005
the Supreme Court struck down Texas’ ban on homosexual sodomy by ruling it
violated gays’ due process rights, Justice Antonin Scalia warned that the
2003 decision would unleash a “massive disruption of the current social
What really sparked Justice Scalia’s ire in the
sweeping Lawrence vs. Texas ruling was the determination that morality cannot
be the sole justification for government to ban behaviors widely deemed
“This effectively decrees the end of all morals
legislation,” he wrote in his dissent.
The ruling marked the Supreme Court’s most explicit
step yet in creating a right to privacy in the bedroom, many legal experts
say. In its wake, Justice Scalia predicted, laws banning same-sex marriage,
prostitution, bigamy, incest, adultery, masturbation, bestiality and obscenity
would be vulnerable.
Five months later, in a ruling that leaned heavily on the
Supreme Court opinion, Massachusetts’ highest state court decreed that gay
couples have the right to marry. That action, which plunged the nation into a
contentious debate over gay marriage, is the most visible progeny of the
Lawrence vs. Texas ruling.
But in the 20 months since the Supreme Court added new
weight to the sexual privacy concept, Lawrence-fueled challenges in other
areas have rippled through U.S. courtrooms – some with more success than
In Utah, a would-be polygamist family challenged the
state’s ban on plural marriages but was rebuffed by a federal judge last
In Pittsburgh, a federal judge recently dismissed
indictments against a pornographer, ruling that the Supreme Court’s holding
in the Texas case renders federal obscenity statutes unconstitutional.
In Florida, gay couples raising foster children sought
unsuccessfully to use the Texas opinion to overturn the state’s ban on gay
In Virginia, the state Supreme Court invalidated the
criminal ban on fornication.
Gays and lesbians discharged from the military are using
Lawrence to challenge the military’s “don’t ask, don’t tell” policy.
And sex toy merchants in Alabama sought unsuccessfully to
invalidate the state’s ban on the sale of sexual devices.
So, is all the legal activity proof that Justice Scalia
was right? Depends whom you ask.
“I think that to a large extent, Justice Scalia’s
prediction is coming true,” said Peter Sprigg, senior director of policy
studies with the conservative Family Research Council, noting that some courts
are striking down morality-based laws.
Hofstra University law professor Joanna Grossman
disagrees that the Scalia scenario is unfolding, pointing out that the courts
have had mixed reactions to challenges suggesting that the Texas sodomy ruling
carved out an absolute right to sexual privacy.
“It was certainly predictable that litigants would
attempt to use Lawrence to challenge all of these laws,” said Ms. Grossman,
who has written extensively about the decision. “It’s sort of predictable
that they’ve had this reaction, which is that it has worked out in some
issues and not in others.”
The Bush administration’s anti-obscenity campaign,
strongly supported by social conservatives, is under assault in the
Pennsylvania case involving Extreme Associates, a distributor of violent
In January, a federal judge in Pittsburgh tossed out a
10-count criminal obscenity indictment against the California company, saying
federal obscenity laws are now unconstitutional in the wake of the Supreme
Court’s Lawrence decision. The Justice Department is appealing the ruling.
Federal prosecutors say the Extreme Associates case has
broader implications than obscenity law, however. If the lower court ruling is
upheld, “all laws based on shared views of public morality, such as laws
against prostitution, bestiality and bigamy” would be undermined, the
Justice Department said.
Legal experts across the political spectrum are still
assessing the effect of the Supreme Court’s holding that morality alone is
not a sufficient reason for banning a practice deemed immoral by the general
“That’s quite a striking thing to say, given our
country’s history,” Mr. Sprigg said. “In a sense, you could argue that
all criminal legislation has a moral element. We criminalize murder because we
think it’s wrong.”
Ms. Grossman rejects that interpretation.
Lawrence “is not saying that you can’t ever base laws
on morality; it’s saying that you can’t use morality as the justification
if you are infringing on some core important, independent right,” she said,
adding that there is no right to commit murder.
Legal analysts offer differing assessments of
Lawrence’s reach. Some suggest that the statutes most at risk of being
invalidated are those banning fornication and the sale of sexual devices
because those deal with purely private behaviors. Laws involving marriage,
obscenity, prostitution or adoption are less likely to succumb, they say,
because they involve broader societal concerns.
Marci Hamilton, a professor at Yeshiva University’s
Benjamin N. Cardozo School of Law, argues that the Massachusetts ruling
legalizing gay marriage may be an aberration in its use of Lawrence. In
crafting their opinion in the Texas sodomy case, she notes that the justices
took pains to say the ruling should not be read as having any effect on the
gay marriage debate.
“It’s still being held up in state legislatures as
evidence that gay marriage will be forced on the states,” said Ms. Hamilton,
author of the forthcoming book God vs. the Gavel. “But that’s not
While Lawrence is relevant to the same-sex marriage
debate, it “is not directly applicable,” said Bill Hohengarten, one of the
principal authors of the briefs to the Supreme Court seeking to strike the
Texas sodomy statute.
He said the legal jousting provoked by Lawrence has gone
into areas not envisioned by his legal team.
“I think that it was our hope and belief that it would
have a ripple effect primarily for gay and lesbian Americans in recognition of
the importance of their relationships and that they are worthy of legal
respect,” he said. “Expansion into areas like obscenity or polygamy ...
lawyers will always try and use cases to expand them elsewhere, but I don’t
think that’s the heart of what the court was focusing on in Lawrence.”
Ms. Grossman, for one, says she is fascinated by the
twists and turns sparked by the Texas case.
“It’s probably the most interesting thing that’s
happened in constitutional law in a long time, in particular because it did
throw so many things up for grabs,” she said.
Variety of Challenges
The Supreme Court’s Lawrence vs. Texas decision has
been cited in challenges to a range of federal and state laws regarding
obscenity, marriage, sexuality, adoption and sex crimes. Among them:
In Utah, a married man seeking to take a second wife
challenged the state’s ban on polygamy, saying the state should not
criminalize consensual intimate relationships.
In Pittsburgh, a federal judge in January threw out a
10-count indictment against a California porn purveyor, citing the Lawrence
decision in ruling federal obscenity laws unconstitutional. The Justice
Department is appealing.
Alabama sex toy merchants challenged the state’s ban on
the sale of sexual devices, citing the Lawrence decision. A three-judge panel
of the 11th U.S. Circuit Court of Appeals upheld the law, and the Supreme
Court recently declined to review its constitutionality. Texas and Georgia are
the only other states that restrict the distribution of sexual devices,
according to court filings in the Alabama case.
The 11th Circuit Court of Appeals last year upheld the
gay-adoption ban in Florida, the only state that specifically forbids
adoptions by gays. Gay-rights activists had hoped the 11th Circuit would
invalidate the ban in light of the Supreme Court’s Lawrence ruling. But an
appellate panel for the 11th Circuit ruled that Lawrence did not overturn
“the accumulated wisdom of several millennia of human experience” that a
married heterosexual couple offers the “optimal family structure” for
raising children. The Supreme Court last month declined to review the
A dozen gays and lesbians ousted from the military for
their homosexuality have filed the first challenge to the Defense
Department’s “don’t ask, don’t tell” policy since the Lawrence
decision was filed.
In Ohio, a lawyer who has represented Hustler magazine
and other distributors of sexually explicit images has challenged the
state’s obscenity law on the basis of the Supreme Court decision.
In Virginia, the state Supreme Court ruled that, given
the Lawrence precedent, the state’s criminal ban on fornication was invalid.
A former Air Force lieutenant asked the Supreme Court to
review his criminal conviction for having sex with a 15-year-old boy in
Florida, saying the consensual conduct was protected under the Lawrence
decision. The court last month declined to take the case.
A day after the Lawrence ruling, the Supreme Court asked
Kansas courts to review the 17-year prison sentence given an 18-year-old man
who performed consensual oral sex on a 14-year-old male. Had he been with a
girl, Matthew Limon could have faced 15 months behind bars. The case is before
the Kansas Supreme Court.
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