- The Washington Times - Thursday, June 26, 2003

Excerpts from the Supreme Court’s decision yesterday to strike down a Texas law banning homosexual sex.

JUSTICE ANTHONY M. KENNEDY, writing for the majority:

“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 existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. …

“Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. …

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. …

“The petitioners 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. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

JUSTICE ANTONIN SCALIA, writing in dissent:

“Texas [sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to liberty under the Due Process Clause, though today’s opinion repeatedly makes that claim. …

“States continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced in the past half century,’ in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. …

“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable, the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. … The Court today reaches the opposite conclusion. …

“This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. …

“This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that preserving the traditional institution of marriage is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

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