Supreme Court's sodomy
ruling draws sharp reaction
By Robert Marus
ABP Washington Bureau
WASHINGTON (ABP)–The U.S. Supreme Court's June 26 decision to overturn state bans on sodomy has drawn sharp rebuke from cultural and religious conservatives.
“It is clear from this that the court has taken sides in the culture war,” said Justice Antonin Scalia, summarizing from the bench his dissent in the Lawrence and Garner vs. Texas case. “This effectively decrees the end of all morals legislation.”
Ken Connor, president of the Family Research Council, said, “Once again judicial activists have used their fertile imagination to create rights that simply don't exist in the Constitution. In doing so, they have imposed their own moral judgments in place of state legislatures and have thereby undermined the democratic process.”
Connor went on to warn that the “radical homosexual lobby” will use the decision to extend “a blanket privacy protection over one's choice of sexual partner to one's choice of marital partner as well–regardless of sex.”
While gay-rights activists and civil libertarians have denounced such blanket statements as hyperbole, some of the conservatives' nightmares may already be coming true.
In the recent decision, the Supreme Court voted 6-3 to overturn a Texas law that banned “sodomy”–a term for any kind of non-vaginal sexual intercourse–for homosexuals but not for heterosexuals. Five of the six justices in the majority claimed the law violated the 14th Amendment's guarantees of due process and privacy and implied that the law also violated that amendment's equal-protection clause.
The court's ruling was unexpectedly broad, explicitly embracing the right-to-privacy argument and implicitly embracing the equal-protection argument.
The decision means all bans on consensual, adult sodomy–for gays and heterosexuals alike–violate the right to privacy that the majority of the court believes exists in the 14th Amendment.
In the case, two Houston men were arrested, convicted and fined in 1998. The men appealed, claiming the statute under which they were convicted violated their rights to privacy and equal protection.
The recent decision already has had legal ramifications. On June 27, the day after the Lawrence decision was announced, the Supreme Court invalidated a sodomy conviction that a Kansas teenager received for having sex with a younger boy. Kansas law imposed a harsher penalty on same-sex violators of the state's age-of-consent law than it did on opposite-sex violators.
On the same day, a New Jersey judge asked for additional written arguments, in light of the new court decision, on a case in which seven gay couples are suing the state for the right to marry.
And a Massachusetts court is hearing arguments in a case many experts believe will expand that state's marriage laws to include homosexual marriage, given the Supreme Court's new ruling.
“Our victory last week was just the beginning,” said Kevin Cathcart, executive director of the Lambda Legal Defense and Education Fund, in a July 2 press release. “We're on stronger ground than ever before to fight for gay couples, parents, employees and students–to win fairness in every area of life.”
But conservatives are fighting back on the issue of gay marriage. Senate Majority Leader Bill Frist, R-Tenn., announced June 29 he will support a constitutional amendment, already pending in Congress, that not only would ban recognition of same-sex marriage on the federal level but also invalidate any state or municipal law that confers either marriage or its corresponding benefits on gay couples.
White House spokesman Ari Fleischer declined to say June 30 if President Bush supports the proposed amendment, which has been introduced in the House but not yet in the Senate.
Where the Lawrence decision may have its most immediate effect is in custody battles and other day-to-day struggles in the lives of gay and lesbian Americans. According to several gay-rights groups, courts and government agencies repeatedly have cited sodomy laws in denying homosexuals custody rights, state certifications and other legal advantages. In those cases, the court has assumed that homosexuals are, by definition, lawbreakers.