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Sodomy Ruling's Ripple Effect

Attorney Andrew Cohen analyzes legal issues for

Capping a week in which the Rehnquist court looked eerily like the Warren court, the justices on Thursday threw out a Texas sodomy statute that was explicitly intended and designed to treat homosexuals differently from heterosexuals.

But the justices didn't just strike down the Texas law, they obliterated it - along with the court's own precedent from a 1986 Georgia case. In so doing, they created broad new privacy "space" that future litigants, gay or not, will be able to maneuver in as they try to limit federal and state action.

If Monday's affirmative action ruling from the court was an ode to precedent, Thursday's ruling was, in the words of the majority, a reminder that stare decisis - the rule that binds the court from one decision to the next - is "not an inexorable command." Even though this court is more conservative politically and legally than it was 17 years ago when it ruled in the famous Bowers v. Hardwick case, five justices now were willing to say that enough has changed in the world, and in the world of the law, to create the justification for such a stark reversal of direction.

The court gave us clues that it might be leaning in this direction. First, the justices agreed to hear the case from among the thousands that comes their way each term, even though there was no pressing urge for them to do so.

Second, during oral argument in the case this spring, several judges expressed a great deal of skepticism about Texas' rationale for the statute that dies today. That's not a perfect indicator, of course, since judges frequently use oral argument to test their views against those of their colleagues. But I bet that the Texas lawyers defending their statute were more nervous after the arguments than they were before they began.

Even in their worst nightmares, however, Texas prosecutors could not have imagined a ruling like the one crafted and written by Justice Anthony Kennedy. From the very first sentence of Justice Kennedy's majority opinion, it should have been clear to all that Texas would lose big and that John Lawrence and Tyron Garner would win a sweeping, landmark victory.

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," Kennedy wrote. "Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."

From that eloquent start, Justice Kennedy focused first upon the obvious obstacle in the way of the majority-- the court's own precedent. In Bowers, during the Berger Court era, the court had ruled that the Constitution did not include a right to engage in homosexual conduct. Kennedy and Co. attacked immediately the foundation upon which the Bowers' decision was based.

"To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward," Justice Kennedy wrote, "just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse." A sign perhaps that one day this court will recognize same-sex unions? Stay tuned.

Justice Kennedy then wrote that laws like those in play in Georgia and Texas have "penalties and purposes" that have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law (again a hint about the legitimacy of same-sex unions), is within the liberty of persons to choose without being punished as criminals."

Having reconsidered and rejected the fundamental premise of the 1986 ruling, having recognized that the Bowers court "misapprehended the claim of liberty there presented to it," the majority in the Texas case then "noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter."

Moreover, Justice Kennedy declared, "the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice (Warren) Burger indictate. Their historical premises are not without doubt and, at the very least, are overstated."
The Texas case "does not involve public conduct or prostitution," Kennedy wrote. "it does not involve where 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."

For Kennedy, and Justices O'Conner, Breyer, Ginsburg, Souter and Stevens, this meant case closed on Texas. Only Justice O'Connor wrote a concurring opinion in which she declared that she could and would side with the majority without overturning Bowers, a case she helped craft back in 1986.

Bowers' "continuance as precedent demeans the lives of homosexual persons," Kennedy wrote for the Court and the, remarkably, he added: "Bowers was not correct when it was decided and it was not correct today. It ought not to remain binding precedent." Thus endeth Bowers' 17-year reign as the law of the land. And thus begins a new era in this area of constitutional law, an era in which this conservative court has declared that homosexuals "are entitled to respect for their private lives" and that states "cannot demean their existence or control their destiny by making their private sexual conduct a crime."

The dissent, read from the bench by Justice Antonin Scalia, was particularly and predictably sharp and dripping with sarcasm. Joined by Justice Clarence Thomas and Chief Justice William Rehnquist, Scalia tore into the majority's view.

First, he chastised Justice Kennedy for being so swift to overturn precedent. When the right to abortion was at stake a few years ago, Justice Scalia noted, this same court was swift to offer "rigid adherence to stare decisis in constitutional cases." But when precedent stood in the way of the majority in the Texas case, he added, the majority was only too willing to manipulatively toss it aside to invoke a new doctrine.

The majority ruling, Justice Scalia suggested, "effectively decrees the end of all morals legislation. If, as the court asserts, the promotion of a majoritarian sexual morality is not even a legitimate state interest," laws criminalizing "fornication, bigamy, adultery, adult incest, bestiality and obscenity" cannot survive court review. If this list sounds familiar, that is probably because is it remarkably in tune with the parade of horrible scenarios offered by Sen. Rick Santorum (R-Pa.) a few months ago when asked about this case.

And then Justice Scalia blasted his colleagues for being part of a court, "which is the product of a law-profession culture, that has largedly signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activitists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Scalia wrote that the majority had "taken sides in the culture war, departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed." And to top off his dissent, after noting that he has "nothing against homosexuals or any other group," Scalia wrote that he "would no more require a state to criminalize homosexual acts - or, for that matter, display any moral disapprobation of them-- than I would forbid it to do so."

Justice Scalia's view of the future of the law in this area clearly has a "same planet, different world" sort of feel when compared with the majority's view. Whereas Scalia sees this ruling as the first step in a downward spiral of judicial inconsistency and legislative disempowerment, Kennedy sees it as the first step toward a more modern view of individualized freedom and liberty. Who is right? No one today can say. I suppose that's one of the many things that keeps the Supreme Court such a fascinating body to watch from term to term.

So remember the name of the case - Lawrence v. Texas - because you are going to hear it over and over again in the coming decade until it is almost as familiar to you as Roe v. Wade or Bowers v. Hardwick. And hold onto your hat when the constitutional ride that started Thursday gets fully under way across the country in cases large and small, involving people gay and straight, seeking new rights and privileges that before Thursday might have been unreachable.

By Andrew Cohen

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