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Welcoming Gay People Back Into the Fold:
The Supreme Court Overrules Bowers v. Hardwick


Monday, Jun. 30, 2003

Just in time for the close of Gay Pride Month 2003, the U.S. Supreme Court handed gay Americans and their friends something to celebrate. On June 26, in Lawrence v. Texas, the Court overruled Bowers v. Hardwick, in which a five-to-four majority had upheld a Georgia law prohibiting consensual sodomy.

In a sweeping opinion by Justice Anthony M. Kennedy, the Supreme Court said of the Georgia sodomy case that it "was not correct when it was decided and it is not correct today .... Bowers v. Hardwick should be and now is overruled."

This ruling represents a major legal and rhetorical victory for gay civil rights, in a variety of ways.

Due Process Basis for the Decision

The outcome in Lawrence v. Texas could have rested on the Equal Protection Clause of the Fourteenth Amendment. The Texas statute had singled out gay people, by prohibiting same-sex conduct (sodomy) that was permitted to opposite-sex partners. The Court might have ruled that, as Justice Sandra Day O'Connor said in a concurrence in the judgment, such targeting violates the equality rights of homosexual persons.

Though "[t]hat is a tenable argument," the Court explained, however, "[w]ere we to hold the statute invalid under the Equal Protection Clause 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." Implicitly, the Court was suggesting that the statute would fail Equal Protection analysis as well.

The Court proceeded on Due Process grounds, though, because it feared that an Equal Protection decision would not go far enough - either in protecting privacy, or in dismantling anti-gay legislation and the accompanying stigma that attaches to a whole class of individuals.

The Court here spoke out forcefully against the stigma and societal condemnation that gay people have had to endure. Of the statute in question and others like it, the Court said that "[w]hen 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."

Expressing Contempt for Bowers v. Hardwick

In its language and tone, the majority heaped well-deserved contempt upon the sort of doctrinaire bigotry that animates such laws as the Texas sodomy statute. For those of us who believe that the law must protect rather than persecute people, and must fight rather than foment bullying, this contempt is enormously gratifying.

The majority and a concurring opinion by Justice O'Connor both cut through the disingenuous formalism of its defenders' preposterous claim that a law against homosexual sodomy is actually neutral as to sexual orientation. Did they truly say it was neutral? Yes, they did, on the theory that it prohibits everyone - heterosexual and homosexual alike - from engaging in sexual interactions with a same-sex partner.

Striking down the patently homophobic law, the Court ruled that "[t]he State cannot demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime." The Court thus recognized that the law in Texas was about stigmatizing and condemning gay people.

Justice Scalia's Reaction

Almost as satisfying as the Court's recognition of how destructive and mean-spirited the Hardwick decision was, is Justice Scalia's rage at its passing. One need only read the tone of his dissent to know what a monumental event Lawrence v. Texas really is.

Justice Scalia began his diatribe by bemoaning the Court's refusal to overrule his least favorite precedent - Roe v. Wade - in the 1992 case of Planned Parenthood v. Casey. He juxtaposed this past refusal with the Court's decision to overrule Hardwick now. Finding no plausible distinction between upholding a right to abortion and overruling the condemnation of homosexuality, Justice Scalia concluded that "[t]oday's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda. . . ."

Appealing to ugly and baseless prejudices about the dangers of proximity between gay people and children, Justice Scalia observed that outside of the subculture in which such radical figures as Anthony Kennedy and Sandra Day O'Connor (both Reagan appointees) thrive, "[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home."

To prove that Americans really do have a history of prosecuting sodomy (and may therefore continue to do so), Justice Scalia noted that there were four sodomy executions during the colonial period, a fact from which the Justice apparently felt no inclination to distance himself.

Instead, the Justice embraced our history of intolerance as placing tight limits around the scope of most constitutional guarantees. In bemoaning the Court's failure to do the same, Justice Scalia listed the sorts of statutes whose validity, he claimed, depended upon the earlier Hardwick reasoning: "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity .... Every single one of these laws is called into question by today's decision ...."

Where to begin? Criminal laws against masturbation are called into question. How will a civilized society survive? Perhaps the government can at least collect a vice tax from masturbators. That might go a long way in addressing the economic downturn in which our country now finds itself. Fornication, too, carries the day. If it was previously in doubt, we now know that unmarried sexual partners can copulate without going to prison.

Adultery and bigamy are question marks, despite Justice Scalia's pronouncements, because the government itself licenses marriage and can therefore - perhaps - require that it be monogamous. But bestiality? Is Justice Scalia truly stumped by the task of distinguishing between two men having consensual sex and an act of intercourse between a man and a sheep? Does the meaning of "consenting adult" cross the species barrier for Justice Scalia?

As for obscenity laws, it is the First Amendment - rather than any substantive Due Process decision such as Lawrence v. Texas - that raises serious questions about their validity. And given the government's unquestioned power to regulate commercial transactions, prostitution is unlikely to be declared constitutionally protected any time soon.

So this leaves the interesting question of adult incest (the subject of an earlier column for this site by Joanna Grossman). For most of us, the prospect of such a relationship is disgusting and therefore requires no legal prohibition. But one can imagine an exception in which, for example, two people separated at birth find each other attractive as adults and only later learn that they are biological siblings. The revelation might put an end to their mutual attraction, but then again, it might not.

Is it wise for biological siblings to have sex or to marry? Probably not. They are more likely than others, for example, to have children with serious genetic problems if they do. But perhaps the law ought nonetheless to stay out of the equation. Most of us would not wish to regulate the marriage of people carrying genes for such diseases as Tay Sachs, after all, even if individuals might choose to avoid replicating the genes on their own. In any event, adult siblings (or parent-child pairs) are probably not lining up at the altar, even after Thursday's decision.

Justice Scalia's Alarm at the Court's Decision

In a sense, Justice Scalia is right to be alarmed. Lawrence v. Texas is a very big deal, and his fulminating dissent thus gives it its due. Indeed, if Justice Harry A. Blackmun were alive today, he would surely delight in knowing that his equally angry Hardwick dissent has now, finally, become the law.

The new ruling calls into question the State's role as enforcer of morality and suggests that where no one is harmed, decisions must usually be left in the hands of the individual. Though the majority might not be willing to take the principle to its logical conclusion at the moment, some Court might do so in the future.

Where Justice Scalia is wrong is in his belief that following this road leads to certain disaster. It is in fact a much kinder and gentler road than that traveled by Justice Scalia. It is the road to freedom.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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