Rehnquist, Scalia, and Thomas dissented in Lawrence v. Texas (2003). W wants more Justices like them. Lord help us.

[x NYTimes]

June 26, 2003
Supreme Court Strikes Down Texas Law Banning Sodomy
By JOEL BRINKLEY



WASHINGTON, June 26 — The Supreme Court struck down a Texas law today that forbids homosexual sex, and reversed its own ruling in a similar Georgia case 17 years ago, thus invalidating antisodomy laws in the states that still have them.

Justice Anthony M. Kennedy, writing for the majority in the 6-to-3 Texas decision, said that gay people "are entitled to respect for their private lives," adding that "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer agreed with Justice Kennedy. Justice Sandra Day O'Connor sided with the majority in its decision, but in a separate opinion disagreed with some of Justice Kennedy's reasoning.

Justice Antonin Scalia wrote the dissent and took the unusual step of reading it aloud from the bench this morning, saying "the court has largely signed on to the so-called homosexual agenda," while adding that he personally has "nothing against homosexuals." Joining Justice Scalia's dissent were Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Justice Scalia said he believed the ruling paved the way for homosexual marriages. "This reasoning leaves on shaky, pretty shaky, grounds state laws limiting marriage to opposite-sex couples," he wrote.

The court's actions today would also seem to overturn any law forbidding sodomy, no matter whether it deals with homosexual or heterosexual activity.

The case, Lawrence v. Texas, No. 02-102, was an appeal of a ruling by the Texas Court of Appeals, which had upheld the law barring "deviate sexual intercourse." The plaintiffs, John G. Lawrence and Tyron Garner of Houston, were arrested in 1998 after police officers, responding to a false report of a disturbance, discovered them having sex in Mr. Lawrence's apartment. Mr. Lawrence and Mr. Garner were jailed overnight and fined $200 each after pleading no contest to sodomy charges.

In its ruling today in the Texas case and its revisiting of the 1986 Georgia case, the Supreme Court made a sharp turn.

In 1986, the justices upheld an antisodomy law in Georgia, prompting protests from gay rights advocates and civil liberties groups. But in the 17 years since, the social climate in the United States has changed, broadening public perceptions of gays and softening the legal and social sanctions that once confronted gay people. Until 1961, all 50 states banned sodomy. By 1968, that number had dwindled to 24 states, and by today's ruling, it stood at 13.

Even though the court upheld the Georgia antisodomy statute — which had applied to heterosexual as well as homosexual conduct — a Georgia court later voided it. But the justices' ruling on the legal principle behind the Georgia statute continued to stand, so today the court, voting 5 to 4, issued a new ruling overturning its 1986 decision in the Georgia case.

Of the three current justices who were on the court when it initially ruled in the Georgia case, in 1986, Justices Rehnquist and O'Connor voted to uphold the Georgia law in 1986 and Justice Stevens voted to strike it down.

The Lambda Legal Defense and Education Fund, which works on behalf of gay rights advocates and related groups, brought the appeal of the Texas ruling to the court, arguing that it violated equal protection and due process laws. It described sexual intimacy in the home as an aspect of the "liberty" protected by the Constitutional guarantee of due process.

Today's ruling "will be a powerful tool for gay people in all 50 states where we continue fighting to be treated equally," the Lambda fund's legal director, Ruth Harlow, said. "For decades, these laws have been a major roadblock to equality. They've labeled the entire gay community as criminals and second-class citizens. Today, the Supreme Court ended that once and for all."

Some lawyers for the plaintiffs wept in the courtroom as the court made public its decision today. Several legal and medical groups had joined gay rights and human rights groups in their challenge to the Texas law.

But traditional-values conservatives reacted angrily to the court's actions, particularly regarding the prospect that they could open the legal door to gay marriages.

"If there's no rational basis for prohibiting same-sex sodomy by consenting adults, then state laws prohibiting prostitution, adultery, bigamy, and incest are at risk," Jan LaRue, chief counsel for Concerned Women for America, a conservative group, said. "No doubt, homosexual activists will try to bootstrap this decision into a mandate for same-sex marriage. Any attempt to equate sexual perversion with the institution that is the very foundation of society is as baseless as this ruling."

Nonetheless, today's ruling was not surprising, given the tone of the justices' questions during oral arguments before the court on March 26, when it appeared that a majority of the court was even then ready to overturn the Texas law.

Most of the remaining states with antisodomy laws forbid anal or oral sex among consenting adults no matter their sex or relationship. Texas is one of only four states whose law distinguished between heterosexual and homosexual consensual sex.

In the March arguments, the plaintiffs' lawyer, Paul M. Smith, chose to argue that while the concept of gay rights as such did not have deep historical roots, a libertarian spirit of personal privacy did reach back to the country's beginnings.

"So you really have a tradition of respect for the privacy of couples in their home, going back to the founding," Mr. Smith said. He noted that three-quarters of the states had repealed their criminal sodomy laws for everyone, "based on a recognition that it's not consistent with our basic American values about the relationship between the individual and the state."

Justice Scalia retorted, "Suppose that all the states had laws against flagpole sitting at one time" and subsequently repealed them. "Does that make flagpole sitting a fundamental right?"

The district attorney for Harris County, Tex., Charles A. Rosenthal Jr., argued that "Texas has the right to set moral standards and can set bright-line moral standards for its people." He asked the court "not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues."

But in the ruling today, Justice Sandra Day O'Connor wrote, "A law branding one class of persons as criminal solely based on the state's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review."