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HIGH COURT'S TERM ENDS | EXCERPTS

John Geddes Lawrence and Tyron Garner vs. Texas

June 27, 2003

The court struck down a Texas law barring consensual sexual relations between people of the same sex.

Majority opinion:

*--* By Justice Anthony M. Kennedy

Joined by Justices John Paul Stevens David H. Souter Ruth Bader Ginsburg Stephen G. Breyer

*--*

For centuries, there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions.... These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the state to enforce these views on the whole society....

When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The stigma this criminal statute imposes, moreover, is not trivial.... Just this term, we rejected various challenges to state laws requiring the registration of sex offenders. We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question, the convicted person would come within the registration laws of a least four states, were he or she to be subject to their jurisdiction.

The present case does not involve minors. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.

Had those who drew and ratified the due-process clauses of the 5th Amendment or the 14th Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Concurring opinion:

*--* By Justice Sandra Day O'Connor

*--*

Texas attempts to justify its law, and the effects of the law, by arguing that the statute ... furthers the legitimate governmental interest of the promotion of morality.... Moral disapproval of a group cannot be a legitimate governmental interest under the equal-protection clause....

Texas argues that the sodomy law does not discriminate against homosexual persons. Instead, the state maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.

Dissenting opinion:

*--* By Justice Antonin Scalia

Joined by Justices William H. Rehnquist Clarence Thomas

*--*

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation.

[The Texas sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the due-process clause, though today's opinion repeatedly makes that claim....

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 [a 1986 high court ruling] held that this was a legitimate state interest. The court today reaches the opposite conclusion. 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....

Today's opinion is the product of a court ... that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. .... It is clear ... that the court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

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