Last edited: March 27, 2005

Repeal of Sodomy Ban Echoes Across U.S.

2003 ruling on Texas statute frequently cited in sexual privacy cases

The Dallas Morning News, March 11, 2005

By Michelle Mittelstadt

WASHINGTONWhen 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 order.”

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 immoral.

“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 others:

In Utah, a would-be polygamist family challenged the state’s ban on plural marriages but was rebuffed by a federal judge last month.

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 adoptions.

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.”

Anti-obscenity campaign

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 pornography.

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 public.

“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.

Reach debated

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 supportable.”

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 decision.

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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