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| PROMOTION |
The U.S.
Supreme
Court
on Thursday delivered the most powerful gay rights opinion in history,
overturning a Texas law that led to the arrest of two men for having
consensual sex at home.
Written by Justice Anthony Kennedy, the 6-3 decision in Lawrence v. Texas
strikes down
sodomy
laws throughout the country and overturns the infamous 1986 opinion in
Bowers v. Hardwick. In Bowers, a 5-4 majority upheld Georgia's
sodomy
law on the basis of traditional morality.
"Bowers was not correct when it was decided," wrote Kennedy, "and it is not
correct today. It ought not to remain binding precedent. Bowers v. Hardwick
should be, and is now, overruled."
Prior to the release of the Lawrence decision, GLBT community analysts were
torn between two hopes. Some wished the
court
would rule against the Texas
sodomy
statute on privacy grounds, establishing a right to noncommercial private
consensual sex for all couples, including gays and lesbians. Others would
have preferred the
court
rule on the grounds of equal protection, stating clearly that no state may
pass a law that discriminates on the basis of sexual orientation based on
moral sentiments alone (as does the Texas "Homosexual Conduct Law" at the
centre of this case).
In his strongly worded opinion, Kennedy took both sides into account. The
decision is based on the privacy rights embedded in the 14th Amendment's
order that no state "shall deprive any person of life, liberty or property
without due process of law." But Kennedy makes clear that the determination
to rule on privacy rather than equal protection was an effort to make the
opinion wider rather than narrower.
"Were we to hold the (Texas) statute invalid under the Equal Protection
Clause," he explained, "some might question whether a prohibition would be
valid if drawn differently, say, to prohibit the conduct both between
same-sex and different-sex participants."
Further, the opinion accomplishes both objectives by articulating in no
uncertain terms the basic equality and humanity owed to gay men and lesbians
under the Constitution.
"The petitioners," wrote Kennedy, "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." The drafters of the Constitution, he concluded, "knew times can
blind us to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress. As the
Constitution endures, persons in every generation can invoke its principles
in their own search for greater freedom."
Ruth Harlow, Lambda Legal Defence and Education Fund's lead attorney in the
case, called the opinion "magnificent." (Click here for more of her
comments.)
The potential influence of the ruling is outlined in Justice Antonin
Scalia's sarcastic dissent, which was joined by Justice Thomas and Chief
Justice Rehnquist. Scalia, who read his lengthy comment from the bench, said
the main opinion "dismantles the structure of constitutional law that has
permitted a distinction to be made between heterosexual and homosexual
unions."
"If moral disapprobation of homosexual conduct is 'no legitimate state
interest,'" he continued, "and if, as the
court
coos ... '(intimate conduct) can be but one element in a personal bond that
is more enduring,' what justification could there possibly be for denying
the benefits of marriage to homosexual couples?"
Interestingly, Scalia cavalierly dismissed the single argument that
conservatives have raised in defence of discriminatory marriage laws,
continuing: "Surely not the encouragement of procreation, since the sterile
and the elderly are allowed to marry."
Justice Sandra Day O'Connor took her own route, concurring with the five
justices in the majority, but writing a separate opinion based on equal
protection analysis. O'Connor, who voted in the Bowers majority, declined to
join the majority in overruling the 1986 privacy rights opinion. Instead,
O'Connor repeated the essential theme of 1996's Romer v. Evans (which struck
a Colorado constitutional amendment prohibiting gay rights laws), ruling
that the Texas law singles out a class of people for disparate treatment
based on animosity alone, and thus fails the most minimal tests used to
judge the constitutionality of a law under the Equal Protection Clause.
In a one-page comment, Justice Thomas agreed with Scalia's analysis, but
called the Texas
sodomy
law "uncommonly silly."
"If I were a member of the Texas Legislature," he wrote, "I would vote to
repeal it."
The Lawrence v. Texas case stemmed from the 1998 arrest of two Houston men
who were having sex in their own bedroom when the police entered their home
on a false emergency call. The two men, John Lawrence and Tyron Garner, were
arrested and jailed for a night.
In a press release, Lambda Legal defence said Thursday's high
court
ruling "starts an entirely new chapter in our fight for equality for
lesbians and gay men." |
