THE VOICE OF CHICAGO'S GAY, LESBIAN, BI, TRANS AND QUEER COMMUNITY SINCE 1985

In a 6-3 decision on Lawrence v. Texas, issued on June 26, the Court took the highly unusual step of admitting that it made a mistake when it said in the 1986 Bowers v. Hardwick ruling it said that states could regulate sodomy.

Gay groups were unanimous in hailing the ruling as 'historic,' clear and broad in its embrace of GLBT citizens. It promises to have significant implications for laws affecting virtually every other aspect of life for gay Americans.

Justice Anthony Kennedy, writing for the majority, strongly took the earlier Court to task for their ruling in Bowers on both matters of fact and of law. In criticizing their reading of history, he wrote, 'Far from possessing 'ancient roots,' American laws targeting same- sex couples did not develop until the last third of the 20th century.'

He outlined the right to privacy that the Court has delineated under what has become known as the due process clause of the Fourteenth Amendment to the Constitution. He drew heavily upon decisions affirming couples' right to contraception and a women's right to choose to have an abortion. In doing so, the majority affirmed little interest in revisiting those issues of choice with regard to abortion.

Kennedy turned to the language of Justice Stevens' dissenting opinion in Bowers to make the case that a political majority's distaste of a particular act is not sufficient grounds to prohibit it, and that sexual intimacy for all is indeed protected under the Fourteenth Amendment.

In clear, blunt language he concluded, 'Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.'

Justice Sandra Day O'Connor was part of the 5-4 majority deciding Bowers. She chose to overrule it, though not as the majority did on due process grounds. She found that it unconstitutionally violated equal protection.

Justice Antonin Scalia wrote a scathing dissent dominated by personal pique that the majority did not agree with his views. He was joined by Chief Justice William Rehnquist and Justice Clarence Thomas. He took the highly unusual step of reading portions of it from the bench.

Scalia lamented that the decision 'effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest.' He accused the majority of promoting 'the so-called homosexual agenda … [of] eliminating the moral opprobrium that has traditionally attached to homosexual conduct.'

And he warned, 'Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned,' opens the way to gay marriages.

Justice Thomas, while joining in the dissent because he does not believe there is a right to privacy within the Constitution, took the unusual step of issuing a separate one-page dissent. He called the Texas law 'uncommonly silly' and said that if he was a member of the state legislature, he would vote to repeal because it 'does not appear to be a worthy way to expend valuable law enforcement resources.'

REACTIONS

'This is an historic, transformative decision. It sweeps away one of the Court's gravest mistakes, Bowers v. Hardwick, and it sweeps away the 13 remaining consensual sodomy statutes that still exist ... that have been used as excuses for discrimination against gay men and lesbians,' said Ruth Harlow at a Washington, D.C., news conference. She was lead attorney on the appeal with Lambda Legal. Paul Smith, an openly gay attorney in private practice with extensive experience before the Court, presented the oral arguments.

'What Justice Kennedy replaced it with is a resounding celebration of all of our liberties, all of our privacy. Gay Americans and straight Americans alike now have the right, made explicit by this court, to make their own private decisions about how they express their love for their partners,' said Harlow. 'It was a statement that the state does not belong in anyone's bedroom.'

'It was also a recognition of gay people's humanity,' she said. 'This is constitutional rights in our real lives, in our homes, in our relationships. This is a great statement that the Constitution means something for all Americans.'

'We have a great new day here in America. Not just a great new day for GLBT people but for everyone who values privacy, who values liberty under the United States Constitution,' added Kevin Cathcart, executive director of Lambda Legal. He called it 'a landmark ruling, it recognizes the rights of all of us.'

'The Court has moved to heal a great wound that was imposed by the Court almost two decades ago,' said Elizabeth Birch, executive director of the Human Rights Campaign. 'It will shift dramatically the discourse on gay people and about gay life for years to come.'

She thanked Lambda for leading the effort and she thanked the plaintiffs John Lawrence and Tyron Garner 'for giving up their privacy so that we might have ours.'

Harlow said the ruling 'changes the landscape. It sends a signal to not only courts but also to legislatures that we deserve equality and full respect.' It is 'not a replacement' for measures such as the Employment Non-Discrimination ACT (ENDA). Legislation is still necessary to protect against private discrimination in employment and other areas.

Harlow noted that in his dissent in the Romer (Colorado's Amendment 2) decision, Scalia 'predicted that Bowers would not stand, and he was correct.' In his Lawrence dissent, Scalia predicted that gay marriage was the logical outcome of the majority decision.

She called him 'a great predictor of future developments' and hoped that this too came true. 'We do not believe that the states have a compelling interest in regulating gay lives.' That includes marriage.

Cathcart found it 'very interesting that the Court cited European courts and roles, which is not a common thing to do.' He suggested that they were looking to those courts for leadership on gay issues.

'Today's historic victory marks a new chapter for gay and lesbian civil rights in America. We are one step closer to realizing fairness and equality for gay and lesbian members of the American family,' said Patrick Guerriero, executive director of Log Cabin Republicans. The group filed an amicus brief on the case.

This 'historic decision that impacts gays and lesbians in all 50 states, it makes clear what we have known all along, the conduct that is illegal for some people should not be illegal for gay Americans,' he said.

'There is no realm of lesbian or gay life—public or private—that has not been devastated by the existence of laws that criminalize adult, consensual, private sexual activity,' said Kate Kendell, executive director of the National Center for Lesbian Rights.

Sodomy laws 'have been used to justify discrimination in employment, adoption, custody, immigration, and virtually every other area of daily life,' she said. 'This ruling will forever change the lives of every lesbian and gay man in this country.' 'The fight for equality is increasingly shifting to the courts,' said Dave Noble, executive director of National Stonewall Democrats. 'This ruling underscores the need to promote mainstream judicial nominations, since such life-long appointees will make decisions on LGBT rights for the next 30 to 40 years.'

IMPLICATIONS

The decision is likely to ripple through the antigay military policy of 'Don't Ask, Don't Tell.' Dixon Osburn, executive director of the Servicemembers Legal Defense Network (SLDN) said, 'It may remove a significant roadblock in repealing the federal sodomy statute and the military's ban' on GLBT people serving openly in the military.

In 2002, a panel of experts on military law recommended repeal of federal sodomy statutes under the Universal Code of Military Justice. Osburn said that SLDN 'will look closely at today's ruling and work with other legal experts to determine what role it may have in tearing down the walls to equality in our armed forces.'

James Garland, a law professor at Hofstra University, said, 'It raises serious constitutional questions about the military's ability to regulate private sexual conduct off-duty that cannot be shown to affect one's military performance.' However, the Court traditionally has given great deference to the military and may continue to do so on this issue.

Social conservatives on the fringe right were typically apoplectic. Many groups issued statements similar to that of professional homophobe Robert Knight, with Concerned Women for America. He fumed, 'By creating a constitutional 'right' to sodomy, the Court has made a mockery of real constitutional rights and has trampled on the rights of the people of Texas to govern their own communities. This is judicial tyranny at its worst.'

Harlow does not fear a backlash 'because the majority of Americans,' some 82% have already expressed the view that these kinds of laws are inappropriate. 'The Court has caught up with America in that respect.'

Reuters reported that White House spokesman Ari Fleischer declined comment on the ruling, adding the Bush administration did not file a brief in this case 'and this is now a state matter.'

IMPACT ALREADY

The Supreme Court ordered the case of a young gay man back to a Kansas appeals court June 27 for further consideration in light of its own historic ruling on sexual intimacy. The decision vacated Limon's sentence and instructed the Kansas Court of Appeals to review his case. By doing so, the Court further affirmed its mandate that states can no longer penalize the sexual conduct of gay people differently.

Limon is serving 16 years more in prison than he would if he were heterosexual because Kansas' so-called 'Romeo and Juliet Law,' which makes sexual relations with a minor a lesser crime if both people are teens only applies to opposite-sex relations,' said the American Civil Liberties Union.

The Case

The Texas sodomy case, officially known as Lawrence v. Texas, began in 1998 when police, responding to what ultimately turned out to be a false 'weapons disturbance' report by a neighbor, entered the apartment of John G. Lawrence in the Houston suburbs. They didn't find any weapons but they did observe Lawrence and Tyron Garner engaging in sex. The pair were arrested for violating the state law that prohibits sodomy between members of the same sex, but not between people of the opposite sex. They were held overnight in jail, convicted and each fined $200.

The case rattled around the Texas legal system. A panel of judges on the Texas Court of Appeals declared the law unconstitutional on grounds of equal protection and privacy, but the full court reversed that on a vote of 7 to 2. They ruled that the law 'advances a legitimate state interest, namely preserving public morals.' The court at the next level of appeals eventually declined to accept the case. Judges are elected in Texas.

In 1986, by a vote of 5 to 4, the U.S. Supreme Court ruled in Bowers v. Hardwick that consenting adults had no constitutional right to private homosexual conduct; states may enact sodomy laws. The decision was highly controversial and later Justice Louis Powell told friends he regretted having joined the majority.

American society's attitude towards gays and lesbians has changed significantly over the 17 years since the Bowers decision. Half of the states had some kind of sodomy law on the books in 1986. [Illinois was the first state to remove its law, in 1961, when the new state Constitution was written and it left the law off the new books.]

Today sodomy laws remain in only 13 states, as state courts have struck them down as unconstitutional and state legislatures have repealed them.

The U.S. Supreme Court agreed to hear the Lawrence appeal in December 2002, oral arguments were heard at the end March, and the decision came down June 26.

In a telephone news conference, Lawrence read a statement from he and Garner saying that they were 'pleased' with the decision. 'It opens the door for gay people all across the country to be treated equally.' Neither of them had sought to be public figures and now they are happy to get on with their lives.

Excerpts from Opinions

Justice Anthony Kennedy for the majority

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

… Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the later point advances both interests.

… [Bowers] continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial.

… The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

'Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.'

Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

…The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Justice Sandra Day O'Connor in a concurring opinion:

The State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to 'a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with' the Equal Protection Clause.

Justice Antonin Scalia dissenting, joined by Chief Justice William Rehnquist and Justice Clarence Thomas:

This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

…Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so- called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

… At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Do not believe it … . Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.