Supreme Court strikes down Texas sodomy law (Dallas Morning News, Thursday, June 26th)

["Allen Pusey & Walt Zwirko, Dallas News" <pxp@interfree.it>]

Supreme Court strikes down Texas sodomy law
06/26/2003
By ALLEN PUSEY / The Dallas Morning News
www.dallasnews.com/latestnews/stories/062603dnnatsodomy.61aef.html

WASHINGTON - The U.S. Supreme Court on Thursday struck down laws in
Texas and 12 other states that criminalize sex between adults of the
same gender - a decision that will have widespread effect on issues of
personal privacy, as well as gay rights.
Speaking for a 6-3 majority that struck down the Texas law, Justice
Anthony Kennedy said that gays are "entitled to respect for their
private lives" and that government "cannot demean their existence or
control their destiny by making their private sexual conduct a crime."
He was joined by Justices Sandra Day O'Connor, Stephen Breyer, John Paul
Stephens, Ruth Bader Ginsburg, David Souter.
Justice O'Connor, while joining the majority against the Texas law in a
concurring opinion, also defended the court's ruling in a past sodomy
case, leaving a majority of 5-4 to strike down the other states' laws.
Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence
Thomas dissented on both counts. Writing for the minority, Justice
Scalia said that the majority had "taken sides in the culture war."
The decision reversed the court's 1986 ruling in the Bowers vs. Hardwick
case, in which a 5-4 majority affirmed a Georgia criminal law banning
consensual sex between same-sex adults. At the time, Justice Byron White
rejected the notion that any private sexual conduct, even within the
home, is constitutionally protected.
"This is a historic day," said Ruth Harlow of the Lambda Legal Defense
Fund, a gay-rights advocacy group. "The court has had the courage to
reverse the decision it made 17 years ago and the wisdom to decide that
case was wrong even then."
"This is a giant leap forward to a day where we are no longer branded as
criminals and where that is no longer accepted by the most powerful
court in the country," she added.
Of 13 states that criminalized sodomy, four, including Texas, apply the
law only to same-sex intercourse - defined in Texas as anal or oral sex.
Texas' law - Section 21.06 of the Texas penal code, also known as the
Texas Homosexual Conduct Law. - originally included even married
heterosexual couples but was changed in 1973.
Although the change was intended to liberalize laws on sexual conduct,
gays and lesbians charged that it, in effect, disqualified homosexuals
from employment and social opportunities by declaring their private
behavior against the law.
"This decision very strongly recognizes ... that our lives are entitled
to the same protections under the Constitution as other people's lives,"
Ms. Harlow said. "And so while it doesn't decide any of those other
controversies that involved any of those other forms of discrimination,
it certainly puts us on a much stronger footing to attack other forms of
discrimination."
Rallies in support of today's Supreme Court decision were scheduled in
Dallas and 36 other cities around the U.S. on Thursday.
The case the Court heard involved two Houston men, John G. Lawrence and
Tyron Garner, believed to be the only consenting adults ever prosecuted
under Texas' law.
In September 1998, police responding to a report of an angry gunman,
burst into a Houston apartment and discovered Mr. Lawrence and Mr.
Garner engaging in consensual sex. Instead of ignoring the false alarm,
they arrested the two men for violation of Section 21.06.
Although the caller - later identified and prosecuted - admitted that he
had intended to harass Mr. Lawrence and Mr. Garner, the case was not
dropped. Mr. Lawrence and Mr. Garner pleaded "no contest" to the charge
and were fined $200, but they made clear their intention to challenge
the law.
On Thursday, Mr. Lawrence said he and Mr. Garner shared the victory
"with gay people in all 50 states who are better off today than they
were yesterday."
"We never chose to be public figures or to take on this fight," Mr.
Lawrence said during a conference call with reporters. "We also never
thought we could be arrested this way. Not only does this ruling let us
get on with our lives, but it opens the door for gay people all across
the country to be treated equally."
Paul M. Smith, who argued the case for Houston plaintiffs, called it a
"new day for gay Americans, starting today."
In a brief arguing for the Texas law, Harris County prosecutors had
argued that the Supreme Court had never recognized a right to sexual
conduct "outside the venerable institution of marriage."
But during oral arguments in the Houston case in March, several justices
openly questioned both who and what was being protected by the Texas
law.
More than 100 organizations, including the AFL-CIO, the Anti-Defamation
League, the American Public Health Association and the Cato Institute, a
libertarian think tank, filed briefs in support of Mr. Lawrence and Mr.
Garner. They were opposed by groups such as Jerry Falwell's Liberty
Counsel and the American Family Association, a Christian lobbying group,
along with the states of Alabama, South Carolina and Utah - all of which
have sodomy laws.
Gay rights groups had said that a court ruling against the sodomy laws
could vastly expand privacy rights and protections for gays. They noted,
for example, that without the laws on the books, homosexuals could apply
for jobs in fields such as law enforcement and to adopt children without
lying when asked if they had broken the law.
In one "friend of the court" brief filed for the American Civil
Liberties Union, Harvard constitutional lawyer Laurence H. Tribe argued
that the Bowers decision was "an anomaly." In the last 40 years, he
said, the court has struck down a number of state laws that tried to
regulate sex, and even child-bearing, among married and unmarried
couples.
Mr. Tribe argued that sodomy laws have existed for centuries but have
seldom resulted in the prosecution of consenting adults. Neither Mr.
Tribe nor the Harris county prosecutors were aware of any similar Texas
case.
"It was gratifying today to hear the court in ringing affirmation join
the community of nations," he said. "The state has no business dictating
the most intimate, private relations of consenting American adults."
Mr. Tribe said the ruling extended not only to the criminalization of
sexual behavior but also spoke to the discrimination against gays and
lesbians made possible by such criminal laws.
"They said it's not the state's business to categorize people in these
ways," he said.

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Dallas Web staff writer Walt Zwirko contributed to this report.

E-mail apusey@dallasnews.com