Posted on 06/26/2003 12:44:09 PM PDT by Dog Gone
In sweeping language, the Supreme Court struck down the Texas sodomy law, and with it similar laws in 12 other states, as violating gay Americans' right to due process, but the debate among the justices was far broader, and in many ways set the stage for the court to address the issue of marriage, the next looming battle in the "culture wars," in Justice Antonin Scalia's parlance.
Even on the issue of sodomy laws, the justices were expansive in their reasoning. The Supreme Court typically decides only the question before it, but the majority opinion in Lawrence vs. Texas went further than it needed to, tackling not just laws like the one in Texas and three other states that criminalize only homosexual sodomy. Instead, the court reached out to effectively rule unconstitutional the sodomy laws of nine other states — including Virginia — that apply to homosexual and heterosexual couplings.
The case was decided 6-3, but only a bare majority of five were willing to take the extra step of effectively striking down all 13 sodomy statutes as contrary to the Constitution's Due Process Clause. In doing so, these five justices overruled the court's 1986 decision in Bowers vs. Hardwick, which upheld Georgia's general sodomy law.
The sixth justice in the majority, Sandra Day O'Connor, voted with the majority in Bowers and was unwilling to revisit her thinking in that case. Instead, she agreed that the Texas law was unconstitutional, but limited her analysis to the fact that the law applies only to homosexual and not heterosexual conduct. That distinction violates the Equal Protection Clause, which like the Due Process Clause is contained in the 14th Amendment to the Constitution.
The other five justices in the majority acknowledged that the equal protection challenge "is a tenable argument," but they nonetheless went on to overrule Bowers and face the broader question of the government's ability to legislate sexual morality.
Justice Anthony Kennedy wrote for the majority, "Were we to hold the statute invalid under the Equal Protection Clause" as O'Connor suggested, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."
The five-justice majority answered that question loud and clear: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Private and consensual sexual conduct between adults — even homosexual adults — qualifies as protected "intimate conduct," the court concluded, and the government cannot regulate it.
The impact of that ruling could be far-reaching. In his dissent, Justice Scalia cited a number of laws that may collapse in its wake: those prohibiting the sale of sex toys, adultery, fornication (sex outside marriage), adult incest, public indecency, bigamy, masturbation, bestiality, obscenity and same-sex marriage.
But the majority opinion was not simply a treatise on how individual freedom to engage in sexual acts must not be infringed upon by the government. Although the five-justice majority was not deciding the case based on the fact that the Texas sodomy law was limited to homosexual conduct, Justice Kennedy's opinion dealt directly with how application of the law was used to discriminate against gay men and lesbians. (Though it is noteworthy that "homosexual" remains the preferred descriptor for gays at the highest court in the land.)
"When homosexual conduct is made criminal by the law of the state," wrote Justice Kennedy, "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 Lawrence case, according to Justice Kennedy, "involves two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The [two men] 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."
Four votes against marriage?
Behind the fight over sodomy laws and whether to overrule Bowers vs. Hardwick, however, all nine justices were aware that this week's opinions set the stage for a far more cataclysmic clash: the constitutionality of limiting marriage to opposite-sex couples.
The five-justice majority took pains to make clear that the Lawrence case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."
But there is plenty about the reasoning adopted by those five justices that will bear upon the question of same-sex marriage. In its discussion of the areas of personal liberty upon which the government should not intrude, Justice Kennedy noted that marriage is among those individual choices:
"Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education," he wrote, concluding later in that same paragraph: "Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."
That conclusion represented a marked evolution from the now-discredited view of gay relationships in Bowers vs. Hardwick, in which Justice Byron White, writing for a different five-justice majority, argued it was "facetious at best" to suggest that homosexual sex bore any connection to family life.
Justice O'Connor, in her opinion concurring only in the result reached by Justice Kennedy — and not his underlying reasoning — made expressly clear that marriage will present different issues for the court.
She was prepared to strike down the Texas law for discriminating against gays, she wrote, but that "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail."
"Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage," O'Connor wrote. "Unlike the moral disapproval of same-sex relations — the asserted state interest in this case — other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."
O'Connor does not offer examples of those different, legitimate interests in limiting marriage to opposite-sex couples.
In dissent, Justice Scalia argues that, Justice O'Connor's assurances to the contrary, the decision in Lawrence "leaves on pretty shaky grounds state laws limiting marriage to opposite sex couples." He wrote that O'Connor may see some basis other than legislating moral disapproval of gays to "preserving the traditional institution of marriage," but that "is just a kinder way of describing the state's moral disapproval of same-sex couples."
Justice Scalia, dissenting along with Chief Justice William Rehnquist and Justice Clarence Thomas, argues that Bowers was correctly decided and that individual states have a legitimate interest in legislating sexual morality. One advantage of that approach, he argues, is that the elected branches of government "need not carry things to their logical conclusion.
"The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and legislate accordingly."
But the Supreme Court must follow the logic of its previous rulings, Scalia wrote, and that means finding some justification other than "morality" for limiting marriage to heterosexual couples. He rejects the primary justifications mentioned in those cases that have addressed the subject:
"Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," he pointed out. "This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this court."
The dissenters are clearly predicting that the decision this week in Lawrence will compel the court to recognize same-sex marriage. Or, at the very least, they are scaring the general public into reaching that conclusion, perhaps so that they may ward off such a result with an amendment to the Constitution that takes the question of gay marriage out of the court's hands.
For those counting votes on the court, that leaves three justices — Scalia, Thomas and Rehnquist — slamming shut the door on any hope of forcing states to open up marriage to gay couples. And Justice O'Connor appeared to be signaling her vote would be the same.
After Lawrence, five justices have essentially put off the question of gay marriage until another day, but their reasoning certainly leaves open the door. That will undoubtedly increase the scrutiny on the choices President Bush makes to fill any court vacancies.
Gay activists will take solace, however, that the two justices most often rumored to be stepping down — Rehnquist and O'Connor — appear already lost causes on the issue of marriage.
Every day we take a giant step in the same direction as all other nations that have declared war on God. And we will suffer the same fate.
The die is cast; at this point I believe there is no turning back. We have legalized and enshrined every single abomination that has caused God to destroy every other civilization in the history of the world that has done what we have done.
I really think that right now the only hope that any of us have to survive what is coming is to throw ourselves on the mercy of God and ask for His salvation. We as a nation have hurled ourselves into the abyss and our days as a nation are numbered. This did not have to happen. I grieve for the senseless deaths of millions of American patriots who died for this country over the almost three centuries of our existence, men and women who, we now see, died for a doomed nation. And I pray that God withholds judgement for a little while; maybe this latest slap in the face of God will stun enough people out of their slumber and cause them to turn to Him before it's too late.
It makes it more likely. How can the state make that conduct in the bedroom between consenting adults illegal?
The commerce clause?
Its malignant democracy. What they call liberalism today, this overt obsession with equality, where equality is more important than morality. The obsession is so bad that the democratic process itself is circumvented. Its Fascism's Trojan Horse. This is not a good thing.
Right decision. Wrong Amendment.
The 9th amendment is where the right to privacy emanates.
"The enumeration in the Constitution, of certain rights, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS (rights) RETAINED BY THE PEOPLE."
See Griswold v Connecticut, Justice Goldberg's dissent.
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