- The Washington Times - Friday, June 27, 2003

The Supreme Court yesterday ruled that states may not outlaw “sexual practices common to a homosexual lifestyle” in a landmark 6-3 decision so sweeping that justices debated whether it will require recognition of same-sex “marriage.”

“The [sodomy] statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” Justice Anthony M. Kennedy said in his opinion for the court.

Besides Justice Kennedy, Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer also voted to strike down the Texas law outlawing homosexual sodomy.

While anti-sodomy laws prohibit only particular acts, “their penalties and purposes … touch upon the most private human conduct, sexual behavior, and in the most private of places, the home,” the majority said in a decision that wiped out all 13 remaining anti-sodomy laws, including Virginia’s.

Justice Antonin Scalia, in a dissent joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas, said the decision “effectively decrees the end of all morals legislation [and] leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

“It is clear from this that the court has taken sides in the culture war,” Justice Scalia said from the bench during a lengthy recitation.

He said the majority rationale applies equally to laws governing bigamy, homosexual “marriage,” adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.

Justice O’Connor issued a separate opinion, saying the decision did not automatically dismantle other laws distinguishing between heterosexuals and homosexuals, and that states retain an interest in preserving traditional marriage.

In reaching the decision, the court also overruled its 1986 Bowers v. Hardwick ruling upholding a Georgia law of general application that prohibited certain defined acts regardless of the sex of the persons involved.

Besides Texas, Kansas, Oklahoma and Missouri also confined their anti-sodomy law to acts between persons of the same sex.

The decision in Lawrence v. Texas was one of five announced on the last regular day of the 2002-03 court term. The justices recessed until an extraordinary Sept. 8 hearing at which they will consider complex new McCain-Feingold campaign-finance restrictions.

Reaction to the sodomy ruling was swift. Even before the justices had left the bench, Sen. Edward M. Kennedy, Massachusetts Democrat, said that the ruling might “nudge” Congress to pass pending bills “to protect gays and lesbians from discrimination in the workplace and prohibit hate crimes based on this bigotry.”

Response came from advocacy groups on all sides, with major protests voiced by traditional-family organizations, while homosexual activists scheduled at least 37 big-city celebrations for last night, including one at Dupont Circle in Washington and another in Houston, where the case originated.

“It opens the door for gay people all over the country to be treated equally,” said John Lawrence, whose September 1998 liaison with Tyron Garner in a Houston apartment sparked the case. “We never chose to be public figures or to take on this fight.”

The decision also was supported by the libertarian Cato Institute and the Institute for Justice, which often is seen as conservative because it supports school vouchers.

“Texas tried to redefine as public what was obviously private. Thankfully, the Court held that sodomy laws exceed the legitimate power of government,” said Dana Berliner, a lawyer with the Institute for Justice who wrote the group’s brief in the case.

“The state of Texas argued that its inherent police power authorized it to police morals. But the state has no such authority,” said Roger Pilon, Cato vice president for legal affairs.

Ruth Harlow, director of Lambda Legal Defense and lead attorney in the case, avoided explicitly linking the decision yesterday to homosexual “marriage” but said it could help end use of homosexual relationships as negative factors in child custody and adoption decisions.

The opinion’s recognition of a constitutional right to engage in homosexual conduct did not clarify how that affects military law that criminalizes such acts and requires the discharge of those who engage in them, or the court’s recent recognition of the Boy Scouts of America’s right to exclude homosexuals from leadership roles.

The court formally recognized a liberty interest for homosexuals under the legal rationale that regulates criminal prosecutions and bars governments from depriving a person of “liberty … without due process of law.”

Ms. Harlow said Justice Scalia’s statement that the ruling smooths the way for same-sex “marriage” was an expression of frustration.

“I think he’s whistling in the wind. I think he’s very much the voice of a small, small minority. The most telling thing about his opinion is that it is the minority, that it did not carry the day,” she said.

Overturning the law may have effects on other lifestyle crimes, such as those involving drugs, said William J. Delmore III, of the Harris County District Attorney’s office, who unsuccessfully defended Texas’ law against the challenge.

He pointed to the court’s adoption of the principle that a state view that a practice is immoral “is not a sufficient reason for upholding a law prohibiting the practice,” and said that may complicate prosecutions.

“Under Lawrence v. Texas, we may have to show harmful physical effects before we can criminalize conduct such as possession of small amounts of marijuana, based strictly on morality,” Mr. Delmore said.

“I’m very much surprised at the basis of the court’s ruling … and I’m surprised at the scope of it. It certainly shows my drawbacks as a fortuneteller because I didn’t see this coming at all,” he said yesterday.

Mr. Delmore also refused to comment directly on how this decision may fit into the homosexual “marriage” issues, but said “any government is going to have to make a pretty substantial showing of need for any statute that is based on morals.”

Evan Wolfson, executive director of Freedom to Marry, said the Lawrence case will be a powerful tool in furthering the homosexual “marriage” cause.

“I certainly hate to agree with Justice Scalia on a wonderful day like today, but I think the court decision reflects the fact that fair-minded Americans have reached a tipping point in support of gay people’s equality,” Mr. Wolfson said.

“The court today recognized that gay people share every other American’s aspiration for love, intimacy, commitment and family. There is no good reason for excluding committed same-sex couples from civil marriages,” he said, using words similar to those of Justice Scalia’s.

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