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C hief lustice William Rehnquist and Justice
Clarence Thomas. He even read portions of it
from the bench, a supreme anomaly.
Scalia lamented that the decision “effective
ly 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." He accused the majority of promoting
“the so-called homosexual agenda...(of) elim i
nating the moral opprobrium that has tradition
ally attached to homosexual conduct.”
He warned, “Today’s opinion dismantles the
structure of constitutional law that has permit
ted a distinction to he made between heterosex
ual and homosexual unions, insofar as formal
recognition in marriage is concerned," and
opens the way to gay marriages.
Thomas, while joining in the dissent because
he does not believe the Constitution contains a
right to privacy, broke tradition by issuing a sepa
rate one-page dissent. He called the Texas law
“uncommonly silly" and said that if he was a mem
ber of the state Legislature, he would vote to repeal
because it “does not appear to he a worthy way to
expend valuable law enforcement resources."
‘A LANDMARK RULING’
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his is an historic, transformative deci
sion. It sweeps away one of the court’s
gravest mistakes, Bowers vs. Hardwick, and it
sweeps away the 13 remaining consensual
sodomy statutes that still exist...th at have been
used as excuses for discrimination against gay
men and lesbians,” Ruth Harlow said at a Wash
ington, D.C., news conference. She was lead
attorney on the appeal with Lambda Legal. Paul
Sm ith, a gay attorney in private practice with
extensive experience before the court, presented
the oral arguments.
“What Justice Kennedy replaced it with is a
resounding celebration of all of our liberties, all of
our privacy. Gay Americans and straight Ameri
cans alike now have the right, made explicit by
this court, to make their own private decisions
about how they express their love tor their part-
: tiers," Harlow said. “It was a statement that the
state does not belong in anyone’s bednxim.
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he Texas sodomy case
began in 1998 when
police, responding to what
ultimately turned out to he a
false “weapons disturbance"
report by a neighbor, entered
John Lawrence
the apartment of John G .
Lawrence in the Houston suburbs.
They didn’t find any weapons, but they did
observe him and Tyron G am er engaging in sex.
T he pair were arrested for violating a state law
that prohibits sodomy between members of the
same sex but not between people of the oppxisite
sex. They were held overnight in jail, convicted
and fined $200 each.
T he case rattled around the state’s legal sys
tem. A panel of judges on the Texas Court of
Appeals declared the law unconstitutional on
gnxinds of equal protection and privacy, hut the
full court reversed that by a vote of 7-2. They
ruled that the statute “advances a legitimate
state interest, namely preserving public morals.”
T he court at the next level of appeals even
tually declined to accept the case. Judges are
elected in Texas.
In 1986, by a vote of 5-4, the U .S. Supreme
Court ruled in Bowers vs. Hardwick that con-
®
H H I AV|I « I M
“It was also a recognition of gay people’s
humanity,” she said. “This is constitutional rights
in our real lives, in our homes, in our relation
ships. This is a great statement that the Constitu
tion means something for all Americans."
Kevin Cathcart, Lambda Legal executive
director, added: “We have a great new day here
in America. Not just a great new day for G L R T
people but for everyone who values privacy, who
values liberty under the United States C onstitu
tion." He called it “a landmark ruling; it recog
nizes the rights of all ot us.”
Elizabeth Birch, Human Rights Campaign
executive director, thanked Lambda for leading
the effort and plaintiffs John Lawrence and
Tyron G am er “for giving up their privacy so that
we might have ours."
"The court has moved to heal a great wound that
was imposed by the court almost two decades ago,"
she said. "It will shift dramatically the discourse on
gay people and about gay life for years to come."
Harlow said the ruling “changes the landscape.
It sends a signal to not only courts hut also to leg
islatures that we deserve equality and full respect."
It is “not a replacement" for measures such as the
Employment Nondiscrimination Act. Legislation
is still necessary to protect against private discrim
ination in employment and other areas.
Harlow noted that Scalia’s dissent in 1996’s
Romer vs. Evans— the case that struck down G>l-
orado’s anti-gay Amendment 2— “predicted that
Bowers would not stand, and he was correct." In his
Lawrence dissent, he predicted that gay marriage
was the logical outcome of the majority decision.
Harlow called him “a great predictor of
future developments” and hoped that this, hx>,
comes true. “W e do not believe that the states
have a compelling interest in regulating gay
lives.” T h at includes marriage.
Cathcart found it "very interesting that the
court cited European courts and roles, which is
not a common thing to do." He suggested that
they were Icxiking to those courts for leadership
on gay issues.
“Today’s historic victory marks a new chapter
for gay and lesbian civil rights in America. We
are one step closer to realizing fairness and
equality for gay and lesbian members of the
American family," said Patrick Guerriero, exec
utive director of Log Cabin Republicans, which
filed an amicus brief in the case.
"There is no realm of lesbian or gay life— public
or private— th.it has not been devastated by the
existence of laws that criminalize adult, consensual,
senting adults had no consti
tutional right to private
homosexual conduct and
that states may enact sodomy
laws. T h e decision was high
ly controversial, and Justice
Louis Powell later told
friends he regretted having
Tyron G am er
joined the majority.
U .S. society’s attitude toward gay men and
lesbians has changed significantly during the
17 years since the Bowers decision. H alf o f the
states had some kind o f sodomy law on the
Kx)ks in 1986. Today they remain in only 13,
as state courts have srruck them down as
uncoastitutional and state legislatures have
repealed them.
T he U .S. Supreme Court agreed to hear the
Lawrence appeal in December 2002, oral argu
ments were presented at the end o f March, and
the decision came down June 26.
In a telephone news conference, Lawrence
read a statement from him and G am er saying
that they were "pleased" with the decision. “It
opeas the door for gay people all across the
country to be treated equally.” Neither of them
had sought to be public figures, and now they
are happy to get on with their lives.
—BR jn