Last edited: February 14, 2005

Death Penalty Ruling Has Ramifications

Detroit News, July 1, 2002
615 W. Lafayette, Detroit, MI 48226
Fax: 313-222-6417

By Deb Price

"Words mean exactly what I want them to mean," the Red Queen informed Alice in Wonderland.

The U.S. Supreme Court hasn’t exactly slipped down through a rabbit hole into Wonderland, but in its June 20 ruling prohibiting the execution of mentally retarded criminals, a six-member majority acknowledged that at least some of our Constitution’s grand guarantees have no fixed meaning.

In that Atkins v. Virginia ruling, a court that, understandably, hates to appear indecisive took the extraordinary step of declaring that a punishment that it had upheld just 13 years ago is now unconstitutionally "cruel and unusual." Thirteen years is a mere blink of the eye compared with past times when the court has taken the rare step of reversing itself.

What’s changed since 1989? The meaning of "cruel and unusual," according to Justice John Paul Stevens. Writing for the majority, he looked beyond the court’s marble walls and found a new "consensus" that capital punishment of the retarded is at odds with "the evolving standards of decency that mark the progress of a maturing society."

Stevens’ opinion stressed that the number of states outlawing such executions had jumped from two to 18 (12 others—including Michigan—bar all capital punishment). The court also saw a consensus in American public opinion polls; professional groups such as the American Psychological Association; legislators; lower court judges; religious groups; and the European Union.

Having demonstrated a refreshing openness to being influenced by the values of an increasingly progressive society, the Supreme Court should search for a chance to rethink its definition of the right to privacy. Beginning in the mid-1960s, the court repeatedly ruled that the Constitution’s promise of "liberty" creates a right to privacy that protects personal decisions involving birth control and abortion.

But then in June 1986, in the devastating Bowers v. Hardwick decision, the court ruled 5-4 that the right to privacy is too narrow to protect a gay man having oral sex in his own bedroom. The ruling upheld the anti-sodomy laws then on the books in Georgia and 24 other states.

Even then the court was out of step with much of the nation, including the mental health profession, many religious groups and public opinion. In a July 1986 Gallup poll, 57 percent of Americans said states shouldn’t be allowed "to prohibit particular sexual practices conducted in private between consenting adult homosexuals."

In justifying the court’s reversal in Atkins, Stevens declared, "Much has changed." That’s even truer of what’s happened in the 16 years since Hardwick. The courts in seven states and legislatures in three more have erased sodomy laws. Now 35 states (70 percent) no longer have them.

What’s more, a Kaiser Family Foundation poll in 2001 found that 88 percent of Americans think "society should not put any restrictions on sex between consenting adults in the privacy of their own home." And 66 percent say "homosexuality is a normal part of some people’s sexuality."

Only four states (Kansas, Missouri, Oklahoma, Texas) have anti-sodomy laws that apply just to those of us who’re gay. In the other 11 (Alabama, Florida, Idaho, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, South Carolina, Utah, Virginia), the prohibitions also apply to heterosexual couples. Yet anti-sodomy laws are mainly used to hurt gay people, such as the lesbian mom who this February lost custody in an Alabama ruling that cited the state’s sodomy law.

James Esseks of the American Civil Liberties Union plans to cite the Supreme Court’s recent nod to society’s evolving standards on executing the mentally retarded when he challenges backward laws targeting gay Americans. "There is a basis for the court to look around and say, The world has changed since 1986,’" he says.

There’s a national consensus: The right to privacy means cops should be kept out of consenting adults’ bedrooms.

  • Deb Price’s column is published on Monday. You can contact her at (202) 662-7370 or

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