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U.S. Gay Rights Advance -- June 26, 2003


Just thought I'd share the facts for those who hadn't heard them all.



June 26 -- Advocates on both sides called the ruling the most significant gay rights decision ever. NBC's Pete Williams reports.

NBC, MSNBC AND NEWS SERVICES

WASHINGTON, June 26 -- In a major victory for gay rights advocates, the U.S. Supreme Court struck down a Texas statute Thursday that banned gay couples -- but not heterosexuals -- from engaging in sodomy, ruling that the law was an unconstitutional violation of privacy.

THE 6-3 RULING reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called "deviant sex."

The case is a major re-examination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state's ability to make crimes of what goes on behind the closed bedroom doors of consenting adults.

Thursday's ruling invalidated a Texas law against "deviate sexual intercourse with another individual of the same sex." Justice Anthony M. Kennedy wrote for the majority that the law "demeans the lives of homosexual persons."

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O'Connor agreed with the outcome of the case but not with all of Kennedy's rationale. She indicated that the law should have been overturned on that grounds that it violates the Constitution's equal protection clause.

Laws forbidding homosexual sex, once universal, now are rare.

SIMILAR LAWS ALSO INVALIDATED

Similar laws outlawing sodomy -- defined as oral or anal intercourse -- between gay or lesbian couples are on the books in Kansas, Oklahoma and Missouri and were invalidated by Thursday's ruling.

Legal experts said the justices' reliance on the right to privacy in the decision in the Texas case also would topple laws in nine other states banning sodomy for both heterosexuals and homosexuals, except as they apply to public conduct. Those states are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

Those on the books are rarely enforced, but they underpin other kinds of discrimination, lawyers for two Texas men argued to the court.

The men "are entitled to respect for their private lives," Kennedy wrote. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

DISSENT CITES 'CULTURE WAR'

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

Scalia, who wrote the dissenting opinion, took the unusual step of reading his dissent from the bench.

Stressing that he has "nothing against homosexuals," Scalia wrote: "The court has largely signed on to the so-called homosexual agenda. The court has taken sides in the culture war."

Although the majority opinion said the case did not "involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," Scalia said the ruling invited laws allowing gay marriage.

"This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples," Scalia wrote.

Rep. Barney Frank, D-Mass., the most prominent gay member of Congress, denounced Scalia's dissent in harsh terms, noting that in one passage, Scalia began a reference to Kennedy's opinion with the phrase "The majority coos ... ."

"This is obviously a sexually charged word" intended to demean homosexuals and their supporters, Frank said a news conference. He called on "my gay Republican friends" in Congress to work to defeat future nominees to the court who mirrored those views, saying it was important to make sure "there are no more Scalias."

Thomas wrote separately to say that while he considered the Texas law at issue "uncommonly silly," he could not agree to strike it down because he found no general right to privacy in the Constitution.

Thomas calls himself a strict adherent to the actual words of the Constitution as opposed to modern-day interpretations. If he were a Texas legislator and not a judge, Thomas said, he would vote to repeal the law.

"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," Thomas wrote.

The two men at the heart of the case, John Geddes Lawrence and Tyron Garner, have retreated from public view. They were each fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.

The case began when a neighbor with a grudge faked a distress call to police, telling them that a man was "going crazy" in Lawrence's apartment. Police went to the apartment, pushed open the door and found the two men having anal sex.

As recently as 1960, every state had an anti-sodomy law. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts.

The Supreme Court was widely criticized in 1986 when it upheld a Georgia anti-sodomy law similar to Texas', with the majority stating that "we are quite unwilling" to declare "a fundamental right to engage in homosexual sodomy." The 5-4 ruling in Bowers v. Hardwick became a touchstone for gay rights activists.

Of the current members of the court, Rehnquist and O'Connor joined the majority in the Bowers decision. Stevens was one of the four dissenters in Bowers.

"Bowers was not correct when it was decided, and it is not correct today," Kennedy wrote for the majority Thursday.

Kennedy noted that the current case did not involve minors or anyone who might be unable or reluctant to refuse a homosexual advance.

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under [the Constitution] gives them the full right to engage in their conduct without intervention of the government."

MANY URGED REVERSAL

A long list of legal and medical groups joined gay rights and human rights supporters in backing the Texas men. Many friend-of-the-court briefs argued that times had changed since 1986 and that the court should catch up.

Thursday's ruling was based on arguments by the plaintiffs' attorneys that because the men were arrested in a private residence while engaging in consensual sex, the raid amounted to an unconstitutional invasion of privacy.

It did not address a second legal point the plaintiffs raised, that by mandating disparate treatment for two classes of citizens, the statute violated the 14th Amendment's equal protection clause.

Defenders of the law said that any state had a right to set its own moral standards and that those who wrote the 14th Amendment never intended it to protect gays and lesbians.

The 14th Amendment was written in 1867 to ensure that former slaves did not become a permanent servile class, subjugated by state laws.

Texas defended its sodomy law as in keeping with the state's interest in protecting marriage and child-raising. Homosexual sodomy, the state argued in legal papers, "has nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices."

The state had urged the court to draw a constitutional line "at the threshold of the marital bedroom."

Although Texas itself did not make the argument, some of the state's supporters told the justices in friend-of-the-court filings that invalidating sodomy laws could take the court down the path of allowing same-sex marriage.


That is simply amazing news.

You'd probably have to be an American to understand what a prudish society we live in. Anyway, this might not seem like a huge advance to those of you from other nations, but for those of us in the U.S. it's incredible.

I'm delighted beyond any words, of course.
Tags: 2003, article, july-2003
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