Bans on Gay Sex Ruled Unconstitutional; California Molestation Law Struck Down

The Supreme Court, declaring gays and lesbians have a right to privacy and dignity in their personal lives, on Thursday struck down all remaining laws that make sex between gay adults a crime.

The Constitution does not tolerate gays being singled out in the law for moral disapproval or second-class citizenship, the high court said. The 6-3 ruling voids laws in Texas and 12 other states that prohibited sex between gays, even in the privacy of their home.

Gay rights lawyers hailed the decision as a historic legal victory for their cause.

“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,” said Ruth Harlow, the legal director for the Lambda Legal Defense Fund, who had argued the case on behalf of two Houston men, John Geddes Lawrence and Tyron Garner.

In a sharp dissent that he read in the courtroom, Justice Antonin Scalia accused his colleagues of having “signed on to the so-called homosexual agenda” and taking sides in a “culture war.” He predicted the decision will lead inevitably to recognition of same-sex marriages.

The court’s majority opinion spoke broadly, saying the issue was not whether a “particular sex act” could be prohibited, but whether the law may treat gays with contempt.

These laws “demean the lives of homosexual persons” and amount to “state-sponsored condemnation,” said Justice Anthony M. Kennedy.

Though rarely enforced, these laws have had far-reaching effects. For example, gays and lesbians have been denied custody of children and visitation rights in many states on the grounds that they are engaged in crime in their personal lives. Others have been denied jobs as police officers or government lawyers for the same reason.

The Supreme Court decided this year to wipe these laws from the books.

Thursday’s ruling came on the final day for decisions. Before the gavel sounded an end to the term, Chief Justice William H. Rehnquist announced a retirement. The court’s librarian, Shelley Dowling, is stepping down after 15 years, he said to muffled laughter.

None of the justices said they were quitting, however, despite another season of feverish speculation over a Supreme Court vacancy. Now, the likelihood is that no justice will step down until after the 2004 election.

Landmark Victory

But Thursday’s landmark victory for gay rights, coupled with Monday’s ruling endorsing affirmative action, will give conservative and liberal activists much to debate.

The case decided Thursday concerned the two Houston men, who were arrested in their apartment and prosecuted for engaging in “deviate” sex acts. The high court’s ruling overturned their convictions.

These men “are entitled to respect for their private lives,” said Justice Kennedy. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

The Constitution protects the rights of all Americans to live in freedom -- and without undue meddling by the state, he continued.

“Our obligation is to define the liberty of all, not to mandate our own moral code,” he said. “The right [these men] seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country, the government interest in circumscribing personal choice is somehow more legitimate or urgent.”

It is a rare day when the Supreme Court acknowledges a mistake and overrules a major decision. But Thursday was such a day.

In 1986, the court upheld Georgia’s sodomy law on a 5-4 vote and ridiculed as “facetious at best” the claim that gays were deserving of equality and privacy. Its opinion, in the case of Bowers vs. Hardwick, said contempt for homosexuals had “ancient roots” in the laws and traditions of Western civilization.

The decision cast a shadow over the gay rights movement and stood as a barrier to full equality, gay rights lawyers said. They described the Bowers ruling as the equivalent of Plessy vs. Ferguson, the 1896 ruling that endorsed racial segregation. The Brown vs. Board of Education ruling overturned the segregation decision in 1954, heralding a new era for civil rights laws.

On Thursday, the court overruled the Georgia sodomy decision.

Old Case Overruled

“Bowers was not correct when it was decided, and it is not correct today,” Kennedy said, speaking for five justices. “Bowers vs. Hardwick should be and is now overruled.”

He asserted the Bowers opinion had put forth a historical myth. Laws singling out homosexuals were a product of the mid-20th century, not an “ancient” tradition of Western civilization. While for centuries, the law had condemned various sex acts, these prohibitions applied to heterosexuals as well as homosexuals, he said.

Kennedy, an Irish Catholic from Sacramento and 1987 appointee of President Reagan, has emerged as the unlikely hero of the gay rights movement. He has insisted that the Constitution’s guarantee of individual liberty is a broad one, and includes the right to choose abortion.

In 1996, he wrote the court’s opinion that struck down an anti-gay initiative adopted by Colorado voters.

Justice John Paul Stevens, the lone remaining dissenter from the 1986 case, had assigned to Kennedy the opinion in Lawrence and Garner vs. Texas. Also signing on were Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Justice Sandra Day O’Connor did not join Kennedy’s opinion that focused on privacy and liberty. However, she wrote a surprisingly strong concurring opinion saying the sodomy laws deserved to be struck down because they impose second-class citizenship on gays.

“The Texas statute makes homosexuals unequal in the eyes of the law,” O’Connor said. “A law branding one class of persons as criminal solely based on the state’s moral disapproval ... runs contrary to the values of the Constitution and the equal protection clause,” she said.

No Discrimination

Taken together, six justices -- four of them Republican appointees -- said gays cannot be demeaned or singled out for discriminatory treatment under the law.

UCLA law professor William B. Rubenstein, an expert in gay rights law, described the ruling as “a monumental decision. It is the most important legal decision ever for gay people in the United States.”

Employers and judges will no longer be able to use the sodomy laws as a reason for discriminating against gays and lesbians, he said, adding, “The decision also opens the way to the next big issue in this area of law: same-sex marriage.”

The high court stressed Thursday’s decision did not mean the “government must give formal recognition to any relationship that homosexual persons seek to enter.”

Kennedy added he was speaking of “consenting adults” acting in private. There is no right to have sex with minors or to engage in “public conduct or prostitution,” he said.

Other Implications

Nonetheless, it was Scalia in dissent who insisted Thursday’s ruling “will have far-reaching implications beyond this case,” eventually leading to same-sex marriages.

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are ... laws based on moral choices. Every single one of these laws is called into question by today’s decision,” Scalia said.

While Kennedy said that Texas had not enforced its sodomy law, Scalia said court records show 134 cases in recent decades nationwide “involving prosecutions for consensual, adult homosexual sodomy.”

The court’s decision “effectively decrees the end of all morals legislation,” Scalia said. “If moral disapprobation of homosexual conduct is ‘no legitimate state interest,’ ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the ‘liberty protected by the Constitution?’ ” he asked.

He said he feared that the United States, like Canada, is about to have “homosexual marriage” imposed by court degree.

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” Scalia said.

Texas was one of only four states that enforced sodomy laws against gays only, reflecting gains made by gays in many legislatures, he said.

Rather than let the democratic process work, “this court has taken sides in a culture war ... and invented a brand new constitutional right” to strike down such laws, he concluded. Rehnquist and Justice Clarence Thomas joined his dissent.

‘Uncommonly Silly’

However, Thomas added a statement characterizing the Texas sodomy law as “uncommonly silly,” deserving of repeal by the state Legislature. But because he sees no “general right of privacy,” Thomas said the Supreme Court should have upheld the law.

Bush administration lawyers did not join the case on either side and had no comment on the outcome.

Conservative groups condemned the decision. Concerned Women for America, a Washington-based public policy organization, issued a statement saying the court is “wrong to declare a right to sexual perversion.” The group’s president, Sandy Rios, added, “No doubt, homosexual activists will try to bootstrap this decision into a mandate for same-sex marriage.”

It is not clear how the ruling will affect the military’s ban on open gays and lesbians. Kennedy’s opinion undercuts the rationale for such prohibitions, but the justices have been wary of second-guessing the military.

Repeatedly, the high court has refused even to hear challenges to the military’s ban on homosexuals.

USC law professor David Cruz, an expert on gay rights law, said the decision leaves the military’s “don’t ask, don’t tell” policy on shaky ground.

“This decision undermines all sorts of anti-gay discrimination, especially if it is cast in moral tones,” he said.

But Matt Coles, director of the ACLU’s Gay Rights Project, said the courts will be reluctant to challenge the military.

“Until the military decides to change the policy -- which I think they will -- I don’t believe the courts will impose a change on the military,” he said.

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(BEGIN TEXT OF INFOBOX)

Texas sodomy law

Majority:

Kennedy

Stevens

Souter

Ginsburg

Breyer

O’Connor

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Dissenters:

Scalia

Rehnquist

Thomas