In a landmark decision regarded by many as establishment of a constitutional right to “gay” sex, the U.S. Supreme Court rejected Texas’ ban on same-sex sodomy.
Citing the 14th Amendment’s Due Process Clause, the high court said in its 6-3 ruling that states cannot punish homosexual couples for engaging in sex acts that are legal for heterosexuals.
Tyron Garner and John Lawrence were arrested for violating Texas sodomy law
Critics of the decision differ on the legitimacy of the Texas sodomy law, but they agree the court has usurped the role of lawmakers, establishing a far-reaching precedent that threatens any law based on moral choices, including incest and polygamy.
“There is no constitutional right to engage in homosexual sodomy,” said Kelly Shackelford, chief counsel of the Liberty Legal Institute, which filed an amicus brief on behalf of nearly 70 Texas legislators. “Read the Constitution as many times as you’d like. It’s not there.”
The ruling reverses a 1986 Supreme Court decision, Bowers v. Hardwick, which said individuals have no federal constitutional right to engage in homosexual acts. Until the 1960s, every state prohibited sodomy, but Texas was one of just 13 states in which a law exists and one of just four that banned same-sex sodomy only. The rarely enforced laws carry penalties ranging from fines to 10 years in prison.
Writing for the majority in today’s ruling, Justice Anthony M. Kennedy said the Texas law “demeans the lives of homosexual persons.”
“The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” Kennedy wrote.
Defenders of the Texas law had contended the ultimate goal of Lawrence v. Texas is not to end sodomy laws, but to advance the “ambitious agenda” of homosexual activists.
“This case is all about a small group attempting to force their agenda on the rest of the country, since they could not win it through the democratic process,” said Shackelford. “The Constitution does not change overnight on the whim of judges to legislate morality for the rest of the country. This decision is wrong and emphasizes the importance of having judicial-restraint justices on the court.”
In a dissenting opinion, Justice Antonin Scalia essentially agreed with that assessment.
“The court has largely signed on to the so-called homosexual agenda,” Scalia wrote.
“The court has taken sides in the culture war,” Scalia said, noting he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”
Justice Thomas, in a separate dissenting opinion, said the Texas law before the court is “uncommonly silly” but as a judge he has no power to change it.
“If I were a member of the Texas legislature, I would vote to repeal it,” Thomas wrote. “Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to decide cases agreeably to the Constitution and laws of the United States.”
Former presidential candidate Gary Bauer said the White House should take notice that four of the six justices making the decision were appointed by Republican presidents.
“This is a sad day for federalism and representative democracy,” said Bauer, president of Virginia-based American Values. “And it is a most significant case for the president to consider as he ponders who to appoint to fill a future Supreme Court vacancy.”
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy. Sandra Day O’Connor wrote a concurring opinion. Chief Justice William H. Rehnquist dissented along with Thomas and Scalia.
‘Powerful tool for gay people’
Michael Adams, an attorney and spokesman for the Lambda Legal Defense Fund, which brought the case, insisted prior to the ruling that opponents had been overstating the implications.
“For us, the case asks a germane, basic question, which is whether the government has the right to invade the privacy of any citizen in this country,” he said.
But Kevin Cathcart, Lambda Legal’s executive director, agreed today the ruling’s impact will be broad.
“It will be a powerful tool for gay people in all 50 states where we continue fighting to be treated equally,” he said.
Cathcart stated, “Today the U.S. Supreme Court closed the door on an era of intolerance and ushered in a new era of respect and equal treatment for gay Americans. This historic civil rights ruling promises real equality to gay people in our relationships, our families and our everyday lives.”
The plaintiffs in the case, John Lawrence and Tyron Garner, were arrested in Lawrence’s Houston home in 1998 and jailed overnight after officers responding to a false “weapon’s disturbance” report found the men engaged in private, consensual sex. They were convicted of sodomy and fined $200 and appealed the case through the Texas state courts. After the Texas Court of Criminal Appeals found the anti-sodomy law to be constitutional, homosexual groups took the case to the U.S. Supreme Court.
Rev. Troy Perry, founder of the predominantly homosexual Metropolitan Community Churches, called it the “single most significant legal victory” in U.S. history for homosexuals.
“This is more than a legal victory – it is a powerful reminder that love and sexual expression are of equal importance and value to both heterosexual and homosexual families,” Perry said.
‘Infamous crime against nature’
Jordan Lorence, senior litigator for the Arizona-based Alliance Defense Fund, charged the high court today rewrote the U.S. Constitution and 3,000 years of legal history by striking down the Texas law, noting then-Chief Justice Warren Burger’s opinion in the 1986 Bowers case.
Burger said “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.”
“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization,” Burger wrote. “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. … [Sir William] Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature’ and ‘a crime not fit to be named.’ To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
Arguing against the overturning of the Bowers decision, Scalia wrote, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers validation of laws based on moral choices.”
The justice said “every single one of these laws is called into question by today’s decision; the court makes no effort to cabin the scope of its decision to exclude them from its holding.”
As WorldNetDaily reported in April, Lorence pointed out Sen. Rick Santorum, R-Pa., made that argument in his controversial Associated Press interview, which homosexual activists criticized as “disparaging an entire group of Americans.”
Sen. Rick Santorum, R-Pa.
Asked whether he believed homosexuals should be allowed to have sex, Santorum referred to the Lawrence case, telling the AP: “If the Supreme Court says that you have the right to consensual sex within your home, 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.”
That assertion was a major part of the debate, said Lorence, who was present during the March 26 oral arguments . Legal counsel from both sides essentially were asked by justices: If we find a right to engage in private, consensual sodomy, are we also creating a right to bigamy?
“This is mainstream stuff,” said Lorence. “This is part of the debate on this case.”
But Ruth Harlow, Lambda’s legal director, said the high court now has “corrected” the Bowers decision, “one of its gravest mistakes.”
“This ruling removes the terrible shadow cast over the gay community by the Supreme Court’s destructive and misguided decision 17 years ago,” Harlow said. “Today’s decision shows how far the gay community has come since 1986.”
Opinions in Lawrence v. Texas decision