The Supreme Court struck down a Texas ban on gay sex in a 6-3 decision ruling earlier today that found the Texas statute being questioned violated the Due Process Clause of the Fourteenth Amendment.
Much of Justice Anthony M. Kennedy’s majority opinion was spent debunking Bowers v. Hardwick, the 1986 case that argued that “traditionally” homosexual behavior had been considered deviant and thus illegal. Bowers also argued that the state had an interest in preserving so called “family values.”
According to Kennedy, there has never been a history of law making homosexual sex illegal. He notes in his majority opinion that “Far from having ‘ancient roots’…American laws targeting same-sex couples did not develop until the last third of the 20th century.”
Kennedy argued that recent laws suggest a more liberal attitude towards sexuality and “show an emerging awareness that liberty gives substantial protection to adult persons in how to conduct their private lives in matters pertaining to sex.”
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 decision, but not the basis for it.
O’Connor was more inclined to agree with the court on the fact that the Texas law being questioned was specific to homosexuality.
“Texas sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as every one else,” wrote O’Connor in her separate opinion.
O’Connor went on to suggest that any law banning sodomy by both homosexual and heterosexual couples was not likely to stand long in a democratic nation.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.
“What a massive disruption of the current social order the overruling of Bowers entails,” wrote Scalia in his dissenting opinion, noting that today's ruling rejected the concept of governing by moral majority. Scalia suggests that bigamy, same sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity laws might be deemed unconstitutional using the reasoning set forth by Kennedy today.
Thomas wrote a separate opinion, agreeing with Scalia, but noting that "punishing someone for expressing his sexual preference through non-commercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."
Thomas stated that he found the law "uncommonly silly," and if he were a legislator, not a judge, he would vote against the law. However, he did feel that the law was constitutional.
Kansas, Oklahoma and Missouri also have laws that prohibit oral and anal sex between the same sex that have been invalidated by today's ruling.
Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. Today’s ruling could be interpreted as invalidating those laws as well.
The issue was brought to the Supreme court by two men who were charged under Texas’ sodomy law. Police were responding to a weapon’s disturbance call, that turned out to be a false report, and came upon John Lawrence and Tyron Garner engaged in a consensual anal sex. The two were fined $200 and court fees of $141.25.
While the sodomy charge was a minor misdemeanor and the fines were small, the ramifications of the charge were huge. Four states would have required the men to register as sex offenders, and the men were barred in the state of Texas from pursuing certain professions such as sports medicine and interior decorating.
The Due Process Clause of the Fourteenth Amendment states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . "For the last half of the 20th century, that phrase has been widely accepted to include what is known as "substantive due process" , which means that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification. In today's decision the court found that morality was not in and of itself sufficient justification.
