NewsWrap for the week ending June 28, 2003 (As broadcast on This Way Out program #796, distributed 6-30-03) [Written by Cindy Friedman, with thanks to Fenceberry, Rex Wockner, Graham Underhill, and Greg Gordon] Anchored by Cindy Friedman and Christopher Gaal The U.S. Supreme Court this week issued what may be its most significant decision ever for gays and lesbians, as it ruled 6-to-3 to strike down Texas' law criminalizing homosexual acts. Four justices joined Justice Anthony Kennedy's majority opinion strongly endorsing fundamental privacy rights for gays and lesbians and reversing the high court's own 1986 decision in "Bowers versus Hardwick" that had supported states' rights to regulate private sexual conduct. This week's ruling is understood to immediately invalidate state laws prohibiting oral and anal sex between consenting adults in private, not only in the four states where they apply exclusively to homosexual acts, but also in nine other states where they apply equally to heterosexual acts. Yet the impact is likely to be much broader, as sodomy laws have been a key argument against equal treatment of gays and lesbians in employment, family law and other areas. The case brought before the court by the Lambda Legal Defense and Education Fund was that of John Lawrence and Tyron Garner, who were having sex in Lawrence's apartment in 1998 when police broke in, responding to a phony report of a crazed gunman on the premises. Both men were arrested on the misdemeanor charge of "homosexual conduct", spent the night in jail, and were fined $200 after pleading no contest to the charge. Kennedy wrote for the majority, "This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention." The majority remarkably brusquely dismissed the court's 1986 ruling, as Kennedy wrote that its "continuance as precedent demeans the lives of homosexual persons," and declared that "'Bowers' was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. 'Bowers versus Hardwick' should be and now is overruled." Justice Sandra Day O'Connor, who had been part of the Bowers majority, was not willing to go as far as Kennedy to reverse it. Yet in her separate concurring opinion this week, she declared that, "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause under any standard of review." She therefore declared the Texas law unconstitutional, although in 'Bowers' she had supported the now-defunct Georgia statute that applied equally to heterosexu al acts. The two other justices remaining from the panel that decided "Bowers" kept to their earlier positions, with Chief Justice William Rehnquist supporting the Texas law and Justice John Paul Stevens opposing it. The Bible-quote-laden text of the "Bowers" decision had sneeringly called it "facetious at best" to suggest that the Constitution protected homosexual acts. But Kennedy's opinion -- joined by Justices Stevens, Stephen Breyer, Ruth Bader Ginsberg, and David Souter -- said, "To say that the issue in 'Bowers' was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in 'Bowers' and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. >... The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. "... For centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code..." The opinion also referred to findings of the European Court of Human Rights and noted "that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct." Even the typically silent conservative Justice Clarence Thomas added a brief statement to the dissenting opinion that labeled the Texas law "uncommonly silly" and declared that if he were a legislator he'd vote to repeal it, although he does not view it as violating the Constitution. But Justice Antonin Scalia took the unusual step of reading aloud his main dissenting opinion, which harshly criticized his colleagues on the bench. He declared that the majority, and indeed the legal profession, "has taken sides in the culture war" and "has signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct." He added, "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." But he warned that the decision "effectively decrees the end of all morals legislation," including "[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity," and would therefore create "a massive disruption of the current social order". He said, "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned," and so "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,"thereby paving the way for a "judicial imposition of homosexual marriage, as has recently occurred in Canada." Scalia's leap from decriminalization to marriage rights could be seen as a call to arms on an issue with far less public support than other areas of gay and lesbian equality. But gay activist attorney Evan Wolfson, who argued the Boy Scouts case before the Supreme Court and now heads the Freedom to Marry group, told the "Houston Chronicle," "I hate to agree with Justice Scalia, but when he's right, he's right." The Bush administration had not submitted a brief in the case, and the President's spokesperson refused to offer any comment on the decision. In a related action demonstrating that the Lawrence ruling will reach beyond sodomy laws, the U.S. Supreme Court ordered the Kansas Court of Appeals to review an age of consent conviction, which Kansas punishes far more harshly for homosexual than heterosexual acts. Matthew Limon had just turned 18 when he was caught performing oral sex on a 14-year-old male. Both were residents at a school for people with developmental disabilities. Had the younger teen been female, Limon's jail sentence would have been only a year, but instead he was sentenced to 16 years in prison. The high court vacated that sentence, of which Limon has already served more time than he would have for a heterosexual offense. He's represented by the American Civil Liberties Union. There's also an immediate result for a half dozen men in St. Louis. Following a police sting at an adult store and theater last year, they were charged under Missouri's gay-only sodomy law, but this week the prosecutor dropped those charges in the wake of the Lawrence ruling, although he'll continue to pursue other sexual misconduct charges against them. Missouri Attorney General Jay Nixon issued a statement that the high court's ruling "appears to call into question" Missouri's sodomy law, which provides for punishment of up to one year in jail and a $1,000 fine. Along with Texas, Kansas, Missouri and Oklahoma are the states with sodomy laws on the books that apply exclusively to homosexual acts. The states with sodomy laws that apply equally to heterosexuals are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia. Attorneys-general of those states are reviewing the Lawrence decision and few have yet to say much about it publicly. Of particular interest was the response of Alabama Attorney General Bill Pryor, because he's been nominated for a federal appeals court seat despite an anti-gay record and because he submitted a brief to the Supreme Court in support of Texas' sodomy law. He called the high court's ruling a "new interpretation of the Constitution," but he admitted that his state's hetero-inclusive sodomy law "is now unenforceable". But most prosecutions for homosexual acts actually occur under hetero-inclusive laws against sex in public places, laws which it's long been argued are disproportionately and even selectively enforced against gay men. Those prosecutions will go forward, as has been confirmed at least for Idaho, Texas and Virginia. And finally... Puerto Rico's gay-only sodomy law, which provides for up to 10 years' imprisonment, is another victim of the Lawrence decision, because Puerto Rico is a commonwealth of the U.S. The legislature has been in the process of overhauling the Puerto Rican Penal Code, with gays and lesbians and Puerto Rico's Justice Secretary lobbying for dropping the sodomy statute and religious conservatives lobbying for retaining it. Puerto Rico's Senate this week actually approved a version of the penal code that omitted consensual homosexual acts even before the U.S. high court had issued its decision. But once that ruling was announced, the heads of the justice committees of both the House and Senate agreed publicly that it's now unnecessary for the House to debate the matter and that it will not be discussed in upcoming public hearings.