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The Supreme Court

Accepting Homosexuality

Two men, John Geddes Lawrence and Tyron Garner, were charged with a misdemeanor on a sex charge in 1998. They were each fined $200 and forced to spend a night in jail.

The case started when a neighbor called in a fake distress call saying someone was “going crazy” in Lawrence's Texas apartment. When the police pushed open the door, they found Lawrence and Garner engaging in sodomy, which was illegal in Texas. In fact, until the ruling in Lawrence v. Texas, 13 states had sodomy laws and four of them prohibited oral and anal sex between same-sex couples. These four states were Texas, Kansas, Oklahoma, and Missouri. The other nine states ban consensual sodomy for all citizens—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia.

Just the Facts

Bowers v. Harwick involved the arrest of Harwick, who was charged with violating Georgia's sodomy law when he was caught engaging in a sexual act with another male in his bedroom in August 1982. Only three of the current justices were on the Court at the time—Chief Justice Rehnquist and Justices O'Connor and Stevens. Stevens dissented with the ruling. At that time, 24 states had anti-sodomy laws on the books.

This case was not the first time the Supreme Court ruled on the legality of sodomy laws. In 1986, a precedent-setting ruling in Bowers v. Harwick upheld a Georgia anti-sodomy law that was similar to the Texas law just struck down.

Texas defended its sodomy law because it protected the state's interest in marriage and child-rearing. The state said in its defense of the law that homosexual sodomy had “nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices.”

The greatest fears of proponents of the Texas sodomy laws, and similar laws in other states, is that without these laws the country will head down the path of legalizing same-sex marriages. Opponents believe sexual relations in the privacy of one's home should not be the subject of legislation.

Justice Kennedy wrote the 6 to 3 opinion for the court and was joined by Justices Breyer, Ginsburg, Souter, and Stevens. Justice O'Connor wrote a separate concurring opinion. Justice Scalia wrote a dissenting opinion, which was joined by Chief Justice Rehnquist and Justice Thomas.

In his opinion for the Court, Justice Kennedy wrote:

  • “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.”

Justice Scalia, who believes this ruling will end all rights of the states to enact laws based on morality, wrote in his dissent:

  • Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a 'fundamental right' under the Due Process Clause … Noting that '[p]roscriptions against that conduct have ancient roots,' … that '[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,' … and that many States had retained their bans on sodomy … Bowers concluded that a right to engage in homosexual sodomy was not 'deeply rooted in this Nation's history and tradition.' …
  • “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. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, 'furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual' … The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.' … 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.”

No one knows what's next after this ruling. Moves are certainly being made in Congress to introduce a new constitutional amendment to respond to the Court's ruling. At a July 2, 2003 press conference at the White House, President Bush was asked if a new “federal constitutional amendment that would define marriage as a union between a man and a woman” was needed. In response, Bush said, “I don't know if it's necessary yet. Let's let the lawyers look at the full ramifications of the recent Supreme Court hearing. What I do support is the notion that marriage is between a man and a woman.”

Deal Hudson, the editor of the Catholic magazine Crisis, says that “Lawrence is a devastating decision, worse than most people think—and for reasons that haven't fully dawned on them yet. This is without question the most damaging decision handed down by the courts since Roe v. Wade—one that will have even more far-reaching effects than its predecessor.” He believes that the ruling leaves the states with no defense against homosexual marriage and could lead to the removal of legal restrictions on other kinds of sexual behavior and could be used to strike down euthanasia restrictions. He says all these laws could, “fall like dominoes.”

Only time will tell if Hudson's dire predictions come true. This case obviously involved not only states' rights, but also individual rights, which we'll discuss further in our next section on laws that deal with control of our bodies.

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Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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