Supreme Court Strikes Down Gay Sex Ban!

Supreme Court Strikes Down Gay Sex Ban

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existance, outside the home, where the State should not be a dominant presence. Freedom extends beyond spacial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

-- Justice Anthony M. Kennedy

"Our obligation is to define the liberty of all, not to impose our own moral code"

Articles from the AP, Reuters, and the Human Rights Campaign:

Supreme Court Strikes Down Gay Sex Ban

Staff, Associated Press, 6/26/2003

WASHINGTON (AP) - The Supreme Court struck down a ban on gay sex Thursday, 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 reexamination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state's ability to classify as a crime 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."

Defending that law, Texas officials said that it promoted the institutions of marriage and family, and argued that communities have the right to choose their own standards.

The law "demeans the lives of homosexual persons," Justice Anthony M. Kennedy wrote for the majority.

Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had 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," he said.

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 all of Kennedy's rationale.

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

"The court has largely signed on to the so-called homosexual agenda," Scalia wrote for the three. He took the unusual step of reading his dissent from the bench.

"The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals."

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.

Of the 13 states with sodomy laws, four - Texas, Kansas, Oklahoma and Missouri - prohibit oral and anal sex between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

Thursday's ruling apparently invalidates those laws as well.

The Supreme Court was widely criticized 17 years ago when it upheld an antisodomy law similar to Texas'. The ruling became a rallying point for gay activists.

Of the nine justices who ruled on the 1986 case, only three remain on the court. Rehnquist was in the majority in that case - Bowers v. Hardwick - as was O'Connor. Stevens dissented.

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 have changed since 1986, and that the court should catch up.

At the time of the court's earlier ruling, 24 states criminalized such behavior. States that have since repealed the laws include Georgia, where the 1986 case arose.

Texas defended its sodomy law as in keeping with the state's interest in protecting marriage and child-rearing. 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

The case is Lawrence v. Texas, 02-102

Lawrence v. Texas Opinions:


Supreme Court Strikes Down Texas Sodomy Law

Thu June 26, 2003 10:30 AM ET
By James Vicini

WASHINGTON (Reuters) - The U.S. Supreme Court struck down on Thursday sodomy laws that make it a crime for people of the same sex to engage in "deviate sexual intercourse," a ruling that gives gay rights advocates a major victory

By a 6-3 vote, the nation's highest court in an opinion written by Justice Anthony Kennedy ruled a Texas law violated constitutional privacy rights.

By a separate 5-4 vote, the Supreme Court also overturned its 1986 ruling that upheld a Georgia sodomy law and that declared that homosexuals have no constitutional right to engage in sodomy in private.

The 30-year-old Texas "homosexual conduct" law makes it a crime for same-sex couples to engage in "deviate sexual intercourse," defined as oral and anal sex, even if it is consensual and occurs in the privacy of a person's bedroom. Violators face a maximum punishment of a $500 fine.

The ruling will invalidate sodomy laws that exist in 13 states. Besides Texas, the other states are Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia.

The case involved John Geddes Lawrence and Tryon Garner. In 1998, police officers entered Lawrence's apartment in Houston while investigating what turned out to be a false report of a disturbance with a gun. The officers found the two men engaged in anal sex.

Lawrence and Garner were arrested and charged with violating the Texas law. They pleaded no contest to the misdemeanor charges and each were fined $200. The two men then challenged the law's constitutionality.

Ruth Harlow, legal director of the New York-based Lambda Legal Defense and Education Fund Inc., which represents the two men, called it the most important gay rights case in a generation.

The Texas Court of Appeals upheld the law, ruling it "advances a legitimate state interest, namely preserving public morals."

The Supreme Court reversed the state court's decision.

The court's three most conservative members, Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.

The ruling came down on the last day of the court's 2002-2003 term.



Justice Kennedy: "Bowers was not correct when it was decided, and it is not correct today."

The Human Rights Campaign lauded the Supreme Court's landmark ruling today that struck down discriminatory state sodomy laws in 13 states on the basis that they violate Americans' Constitutional right to privacy. The 6-3 decision in Lawrence v. Texas makes clear that gay, lesbian, bisexual and transgender Americans have a fundamental right to privacy, says HRC.

"This is an historic day for fair-minded Americans everywhere," said HRC Executive Director Elizabeth Birch. "We are elated and gratified that the Supreme Court, in its wisdom, has seen discriminatory state sodomy laws for what they are &endash; divisive, mean-spirited laws that were designed to single out and marginalize an entire group of Americans for unequal treatment."

The ruling &endash; overturning state sodomy laws and the Court's infamous 1986 Bowers v. Hardwick decision &endash; removes the stigma and criminal brand that the laws have long placed on GLBT Americans. Sodomy laws have long been used as a basis for discrimination against GLBT Americans in employment opportunities, in custody and visitation rights and in myriad other aspects of ordinary life.

 "Gay Americans are parents, children, brothers, sisters, friends, co-workers and church-goers. They make important contributions in every community in the country," added Birch. "This ruling opens the door for new advances toward full equality and should be viewed as a challenge to legislators to help pass important legal protections for GLBT Americans &endash; like employment non-discrimination laws and comprehensive hate crimes legislation.

"Lambda Legal deserves an enormous amount of credit for bringing this critical case to the highest level," said Birch. "The GLBT community also owes a debt of gratitude to John Lawrence and Tyron Garner for letting their story be heard."

In 1998, Lawrence and Garner pleaded no contest to breaking the Texas sodomy law, after police broke into Lawrence's home in search of an armed intruder and discovered the two men engaged in intercourse. Both men were arrested and imprisoned overnight. They were fined $200 each and forced to pay court costs. The convictions barred them from holding several types of jobs in Texas and would have required them to register as sex offenders should they have moved to any of several other states. Lambda Legal asked the Supreme Court to hear the case and declare a violation of privacy and equal protection.

HRC signed onto a "friend of the court" brief written by the law firm of O'Melveny & Myers LLP that summarizes the direct and resulting harms caused by sodomy laws. The brief describes sodomy laws as outdated. It provides strong evidence that gays and lesbians are law-abiding, productive citizens who are healthy partners, good parents, patriotic veterans and sometimes heroic citizens. A variety of other civil rights organizations, religious groups, public health experts, historians and others have also either signed or filed briefs of their own in favor of repealing sodomy laws.

In 1986, the Supreme Court upheld sodomy laws 5-4 in Bowers v. Hardwick. Since the ruling, much has changed. Only three justices from that ruling remain on the bench. And the Georgia sodomy law, which was at issue in Hardwick, was struck down by the Georgia Supreme Court in 1998. The late Justice Lewis Powell Jr., who joined the majority in Hardwick, expressed regret for voting to uphold the discriminatory Georgia law. "I think I probably made a mistake in that one," Powell told law students in 1990.

"Justice Powell is looking down on us today and smiling," said Birch. "We believe that some day, Justices Scalia, Thomas and Rehnquist, who joined in the dissent, will recognize their error."

Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, , John Paul Stevens and David Souter cast the majority votes.  Justice Sandra Day O'Connor wrote separately to say that she agreed that the Texas law should be invalidated but did not join in overturning Bowers.  While the case was not decided on Equal Protection principles&emdash; the majority found that all Americans have a right to private consensual sexual conduct&emdash;the decision also states "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 latter point advances both interests."

The ruling strikes down sodomy laws in Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Utah and Virginia.


The Human Rights Campaign is the largest national lesbian and gay political organization with members throughout the country.  It effectively lobbies Congress, provides campaign support and educates the public to ensure that lesbian, gay, bisexual and transgender Americans can be open, honest and safe at home, at work and in the community.

THANK YOU! As a current member of HRC, your voice is vital in the fight for gay, lesbian, bisexual and transgender equality. You are part of more than 500,000 members who will help HRC continue this fight today, tomorrow, and until we all reach our goal of equality - and we thank you.

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