June 26, 2003 (a Thursday)

Scales of Justice

On this date, the U.S. Supreme Court decided the case of Lawrence v Texas (539 US 558). This landmark ruling (6 to 3) struck down a Texas law that prohibited sodomy (that is, anal sex) between same sex couples. The Court had previously addressed the same issue in 1986 in Bowers v Hardwick (478 US 186), where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

The case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered two men engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits “deviate sexual intercourse.” They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.

Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. He said that this right is protected under the word “liberty” in the due process clause of the Fourteenth Amendment, and is not trivial. Kennedy wrote:

The Court began its substantive discussion in Bowers as follows: ‘The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.’ That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…

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.

Justice Kennedy expressly analogized to Supreme Court precedents protecting the right to purchase and use contraceptives and the right to abortion as aspects of privacy. The Court concluded that:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Justice O’Connor, who had voted with the majority in Bowers, concurred in the judgment in Lawrence but said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples. In some ways, O’Connor’s opinion was broader than the majority’s, for as Antonin Scalia noted in dissent, it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational-basis test as long as it was designed to preserve traditional marriage, and was not simply based on the state’s dislike of homosexual persons.

However, O’Connor does not explain how a law limiting marriage to heterosexual couples could be designed to “preserve” (whatever that means) traditional marriage WITHOUT being motivated by the state’s dislike of homosexual persons. Furthermore, if a state provides nearly all the benefits of marriage to same-sex couples but calls it “civil union” or “domestic partnership”, its duplicity and prejudice become even more obvious by refusing to allow them to marry.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said, with his characteristic hyperbole and hysteria, that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Scalia’s dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes. He also averred that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices.

However, Scalia’s assertion is NOT true — proscribing adult incest can be justified on medical grounds, since children produced by such activity are more likely to suffer genetic disorders, and proscribing bestiality can be justified on grounds of animal cruelty. Also, it logically follows from Scalia’s reasoning that states should be able to make the moral judgment that interracial marriage is wrong and embody that judgment in criminal statutes – except that the Supreme Court has previously ruled those laws unconstitutional as well.

With Lawrence, Scalia concluded, the Court “has largely signed on to the so-called homosexual agenda.” While Scalia said that he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” Scalia argued that the Court has an obligation to decide cases neutrally. 

Of course, Scalia’s use of the term “agenda”, implying that the action against Texas is part of a wider, covert effort to legalize the activities he mentions above, debases homosexual persons, and his protestation that he has nothing against them only confirms his bias, or at least makes his self-professed neutrality suspect.

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