In a 6-3 vote, the high court ruled today against Texas's antigay sodomy law. In a historic majority opinion written by Justice Anthony Kennedy (pictured), the court also struck down the remaining sodomy laws in 12 other states.
The U.S. Supreme Court struck down a ban on gay sex Thursday, ruling that the law is an unconstitutional violation of privacy. The 6-3 ruling reverses course from a ruling 17 years ago that states could penalize gay people for what such laws have historically deemed deviant sex. It also apparently invalidates laws that criminalize consensual sodomy among heterosexuals.
Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but are used to underpin other kinds of discrimination, according to arguments given by lawyers for two men who had been charged under Texas's sodomy law. The men "are entitled to respect for their private lives," Justice Anthony M. Kennedy wrote. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime." 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, or any other group, promoting their agenda through normal democratic means," but that sodomy laws should have been overturned only through the legislative means, not through the courts.
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 in the door, and found the two men engaging in anal sex.
As recently as 1960, every state had a 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 In 37 states, the statutes have been repealed by lawmakers or blocked by state courts.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 only 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 a sodomy law similar to the one in 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.
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 in keeping with the state's interest in protecting marriage and child-rearing. Same-sex 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 high 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.