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Supreme Court Strikes Down All Bans on Sodomy and Gay Sex: Largest Victory Ever for Gay And Lesbian Civil Rights in the U.S.

June 27, 2003
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The ruling takes away the legal tool courts have used to justify anti-gay discrimination in everything from custody cases to employment. We talk to a lesbian mother who lost custody of her daughter under Alabama’s anti-sodomy law. For five years, her partner has been banned from seeing her daughter.

The Supreme Court yesterday struck down Texas’s ban on private, consensual sex between adults of the same sex.

It is the most significant ruling ever for lesbian and gay civil rights. Four states ban gay and lesbian sex. 9 other states ban both hetero and homosexual sodomy. All of those laws are now invalid.

The Supreme Court vote was six to three. Justice Anthony Kennedy wrote for the majority. He said the Constitution allows adults to choose to enter a gay relationship and still "retain their dignity as free persons." He said that gay people, like straight people, 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."

As Kennedy read these excerpts yesterday, many of the lesbian and gay lawyers present began silently weeping.

Citing a prior Supreme Court ruling, Kennedy also wrote: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" He wrote, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."

The case involved two Texas men, John Geddes Lawrence and Tyrone Garner. On the night of Sept. 17, 1998, a neighbor of Lawrence faked a distress call to police. The neighbor told the police that a man was "going crazy" in Lawrence’s apartment. Police went to the apartment, pushed open the door and found Lawrence having consensual sex with Garner.

Texas law states that it is illegal to engage in so-called "deviate sexual intercourse with another individual of the same sex." Police fined the men and threw them in jail for the night. Lawrence and Garner are now considered sex offenders in several states.

The men appealed the charges all the way up to the Supreme Court.

Yesterday’s ruling was much broader in scope than anyone had anticipated, on either side of the issue. Just 17 years ago, in 1986, the Supreme Court heard a similar case and reached the opposite conclusion. In Bowers v. Hardwick, the court ruled the majority of the electorate believes that homosexual sodomy is immoral and unacceptable, and that the sodomy laws were "firmly rooted in Judeo-Christian moral and ethical standards."

Justice Antonin Scalia was a member of the court then, and ruled with the court’s majority to uphold Georgia’s ban on sodomy. Yesterday, he wrote a scathing dissent, and took took the unusual step of reading his dissent from the bench. He said the Court "has largely signed on to the so-called homosexual agenda," and "It is clear from this that the Court has taken sides in the culture war." He also said yesterday’s decision threatens every single state law against bigamy, adult incest, bestiality, prostitution, adultery, obscenity and masturbation.

The ruling is about far more than consensual gay sex, and affects lesbians as much as it affects gay men. Courts have used laws criminalizing gay sex to justify taking children away from their lesbian mothers. They have ruled employers have the right to fire lesbians and gay men because they are allegedly engaging in criminal behavior.

Last night, dozens of celebratory rallies were held in cities across the country.

  • Paul Smith, attorney who argued the case before the Supreme Court, speaking at a celebratory rally yesterday outside the Stonewall bar in New York’s West Village. There were dozens of similar rallies across the country.
  • Lee Taft, regional director for the South Central Region for Lambda Legal Defense
  • Shannon Minter, Legal Director for National Center for Lesbian Rights
  • J.B., lesbian mother from Alabama who lost custody of her daughter when the father discovered she was having in open lesbian relationship. An appeals court overturned the trial court’s ruling, but the Supreme Court of Alabama upheld it. In addition, the trial court banned her partner from ever seeing J.B.'s daughter, even though the child's psychologist determined the child had a good relationship with the partner and that it was a beneficial relationship. Alabama’s anti-sodomy law provided the primary
  • G.S., partner of J.B. The trial court banned her from seeing her partner’s daughter.

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