Court Liberals Court Gays — Strikes Down Section 3 of Defense of Marriage Act (DOMA) — What’s next? Sodomite Shotgun Mandated Marriages Coming Soon? — Defining Democratic Degeneracy Down — Videos
Casablanca – As Time Goes By
Marriage Redefinition Sought at SCOTUS Fails, Debate Continues
Ryan Anderson discusses what the Supreme Court got wrong in its marriage decisions—but why the proponents of same-sex marriage failed to achieve their goal of a court-imposed nationwide redefinition. One thing is clear: the debate about marriage will continue, now more than ever.
The morning after two important—and troubling—Supreme Court decisions in the Proposition 8 and Defense of Marriage Act (DOMA) cases, here’s the lay of the land. The important takeaway: The marriage debate is every bit as live today as it was yesterday morning…and that means it’s time to redouble our efforts to stand for marriage across America. Some key numbers following the decisions:
50 The number of states whose marriage laws remain the same after the Court’s marriage decisions.
38 The number of states with laws defining marriage as the union of a man and a woman. That includes California, where the scope of today’s Prop 8 decision beyond the specific plaintiffs will be the subject of ongoing debate and, most likely, further litigation.
12 The number of states that can now force the federal government to recognize their redefinition of marriage. The Court struck Section 3 of DOMA, which means that it must recognize same-sex marriages in states that redefine marriage.
1 The number of sections of the Defense of Marriage Act struck down yesterday (Section 3). Section 2, which ensures that no state will be forced to recognize another state’s redefinition of marriage, is still law.
0 The number of states forced to recognize other states’ redefinition of marriage.
The important news you may not be hearing is that the U.S. Supreme Court did not redefine marriage across the nation. That means the debate about marriage will continue. States are free to uphold policies recognizing that marriage is the union of a man and a woman, so that children have a mother and a father.
States will lead the way even as we work to restore clear marriage policy at the federal level. And in the states, support for marriage as the union of a man and a woman remains strong.
Still, the Court should have respected the authority of California citizens and Congress.
On DOMA, the Court did not respect Congress’s authority to define marriage for the purposes of federal programs and benefits. The Court got federalism wrong.
On Proposition 8, the citizens of California who voted twice to pass Prop 8 should have been able to count on their Governor and Attorney General to defend the state’s constitution. That’s what democratic self-government is all about.
Now more than ever, we need to make it clear why marriage as the union of a man and a woman matters—for children, for civil society, and for limited government. As citizens, we all need to be prepared to make the case for marriage. That’s why we at Heritage have worked with allies to produce a booklet called “What You Need to Know about Marriage.” Download your free copy at TheMarriageFacts.com.
Jay Sekulow Spoke with Glenn Beck: SCOTUS Decision on DOMA & Prop 8
Breaking Down the Court’s Prop 8 and Doma Rulings | Supreme Court Same-Sex Marriage Ruling
Wall Street Journal Legal Editor Ashby Jones breaks down the Supreme Court’s Prop 8 and Doma rulings, and what the decisions could mean for same-sex marriage going forward.
Supreme Court strikes down key part of DOMA, dismisses Prop 8 case
America : Supreme Court shoots down DOMA and Prop 8 within the U.S. (Jun 26, 2013)
Rush Limbaugh: Scalia was right when he warned repeal of sodomy laws would lead to gay marriage
Glenn Beck and Rand Paul DOMA Reaction: Gay Marriage Rulings Will Lead To Polygamy, Zoophilia
The Five Reacts To Supreme Court’s DOMA And Prop 8 Rulings ‘This Is A Huge Conservative Victory’
Dr. Jeffress Discusses the SCOTUS DOMA Decision on The O’Reilly Factor (6/26/13)
DOMA Struck DOWN – Justice Scalia’s Hypocritical Rage Quotes
Andrew Sullivan: Gay People Like Glenn Greenwald Can Now Come Back, and Jesus Was Thrilled Today
Sally Kohn Battles Fox Panelist Over SCOTUS Ruling: How Does My Right To Marry Affect You At All?
Fox News contributor Sally Kohn today reacted to the Supreme Court ruling that her partnership and the unions of many other people across the country deserve equal protection under the law. She said that this is the latest step in the United States’ attempts over history in “striving towards making a more perfect union,” adding that in the United States, you can’t just pass a law “solely for the purpose of discriminating.”
Kohn thought it was smart for the Supreme Court to lean on the states rights argument, which she said conservatives would be cheering had this been literally any other political issue. Fellow panelist Ryan Anderson found it contradictory that the Supreme Court would take make such a significant ruling for states rights in the DOMA case, yet dismissed the California Proposition 8 case in which the people actually voted to decide how to define marriage in their state. He argued that the government’s business in getting involved in marriage is to promote marriages that can produce children, hence the definition of marriage being one man and one woman.
Kohn told Anderson that he can make “excuses” but the fact is laws passed just to discriminate are wrong. She also pointed out that the ruling is also significant due to the marriage benefits that gay couples can now get. Anderson shot back that the Supreme Court didn’t exactly say that state bans against gay marriage are unconstitutional, and reaffirmed that the California ban “tells the truth about marriage.” Kohn said, “I’m a little confused as to how my right to marry affects Ryan at all, unless we’re getting married, Ryan.”
Headline: Supreme Court rules DOMA is unconstitutional
Watch Rep. Bachmann and Others Speak Against DOMA Ruling
Moments After DOMA Ruling – Gay Activists Promise to Push Gay Marriage Nation-Wide
Supreme Court Strikes Down DOMA | WSJ WorldStream | Supreme Court DOMA Ruling
Mixed Reactions to Supreme Court Decisions
Supreme Court strikes down DOMA
In a landmark decision, the Supreme Court strikes down a federal provision denying benefits to legally married couples. For more CNN videos, visit our site at http://www.cnn.com/video/
Edith Windsor, who filed the original case that could upend the Defense of Marriage Act, says just getting the case to this point is a kind of victory.
“We’ve made a huge step forward and a huge difference in how people look at us,” she said. “And so, it’ll happen. Another year if not now.”
It was the death of Windsor’s life partner, Thea Clara Spyer, that led to the case.
Theirs was not a fleeting romance — the women were together 42 years sharing ups and downs, laughs and tears. They also shared what they’d earned together, including from Windsor’s job as a programmer with IBM and Spyer’s work as a psychologist.
FRANK SINATRA – STRANGERS IN THE NIGHT – LIVE
Frank Sinatra – My Way (Live in London 1971)
The Supreme Court struck down part of DOMA. Here’s what you need to know
By Dylan Matthews
The Supreme Court today struck down a key part of the Defense of Marriage Act, the 1996 law signed by President Clinton that defined marriage as between a man and a woman for the purpose of federal law.
The decision was 5-4, with the majority opinion written by Justice Anthony Kennedy — who also wrote the court’s historic gay rights decisions in Romer v. Evans and Lawrence v. Texas. Justices Antonin Scalia, Samuel Alito, and John Roberts all filed dissents. Justice Clarence Thomas joined Scalia’s dissent, and joined Alito’s in part, while Roberts joined Scalia’s in part. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg joined Kennedy’s majority opinion.
Here’s what you need to know.
What was the actual case about?
United States v. Windsor concerns Edith Windsor, who was widowed when her wife Thea Spyer died in 2009. Windsor and Spyer were married in 2007 in Canada after being partners for 40 years. Windsor was forced to pay $363,053 in estate tax on Spyer’s estate, which she argues she would not have to pay if she had been Spyer’s husband. Thus, she claims, the Defense of Marriage Act, which prevents her from being considered Spyer’s spouse for the purposes of federal taxes, literally cost her $363,053.
How did it get here?
The Obama administration has declined to defend DOMA, and so the Bipartisan Legal Advisory Group (BLAG), a standing organization in Congress, took over the law’s defense at the instruction of House Speaker John Boehner (R-OH). The U.S. District Court for the Southern District of New York ruled in June that DOMA’s definition of marriage as between a man and a woman lacked a rational basis, and ordered damages of $363,053 paid to Windsor. In October, the Second Circuit Court of Appeals concurred, with a panel ruling 2-1 for Windsor. Then the Supreme Court considered it. Here are the arguments in the case:
What issues did the Court have to decide on?\
Three. The first was the equal protection issue. The second was whether the fact that the executive branch agrees with Windsor means that there isn’t a real controversy in this case, meaning the court doesn’t have jurisdiction. The third was whether BLAG would be harmed by DOMA being overturned, and thus whether it has standing to defend the law (a friend-of-the-court brief by Harvard professor Vicki Jackson argues that even Congress doesn’t have standing, and even if it did, BLAG wouldn’t).
Justice Kennedy’s ruling held that the court had jurisdiction in the case, effectively ruling that there was a real controversy and that BLAG had standing to defend the law. His ruling was solely based on his judgment that DOMA violates the equal protection clause.
What does this mean for gay couples?
It depends on what area you’re talking about. “What section 3 of DOMA does is that it performs a find and replace of every instance of ‘spouse’ or ‘husband’ or ‘wife’ appears and changes it so that it’s “opposite sex husband” or ‘opposite sex wife’,” says Rita Lin, a partner at Morrison and Foerster in San Francisco who argued Golinski v. United States Office of Personnel Management, another DOMA case. “The effect is going to vary based on which of the thousand-plus statutes or regulations are affected.”
There are some clear-cut cases. It seems pretty clear that legally married same-sex couples where one member is employed by the federal government are entitled to spousal benefits, just the same as any other married couple. For other legally married couples who don’t live in states where same-sex marriage is recognized, there’s some question as to whether the “state of celebration” or “state of residence” matters. Usually, the former is the standard used, meaning a marriage is valid if it’s valid in the state it was celebrated. That would mean most legally married same-sex couples, regardless of where they live, are entitled to spousal benefits.
Other areas, like tax law, may require additional rule-making before same-sex couples are treated equally. “Some operate just based on policy, without getting into a regulation or statute, so those can be modified very quickly,” Tara Borelli, an attorney at Lambda Legal who was also a counsel in Golinski. ”Others require rule-making.” And others require statutory changes. Borelli notes that Social Security will probably have to be changed by Congress for same-sex couples to be treated equally.
This does open the door for bi-national same-sex couples to be treated equally under the law. That means that comprehensive immigration reform probably need not include a provision specifically tailored to making sure bi-national partners of same-sex couples can get visas automatically, the same as opposite-sex partners. As Paul Smith, a partner at Jenner & Block and arguably the leading gay rights litigator in the country (he won Lawrence v. Texas, overturning state bans on gay sex), told me, “My understanding is that the elimination of DOMA would by itself mean that all bi-national married couples would have the same rights, whether same sex or not.”
Background Articles and Videos
Flagrant Conduct: The Story of Lawrence v. Texas (Dale Carpenter)
n 2003 the Supreme Court struck down America’s sodomy laws in the case of Lawrence v. Texas. In Flagrant Conduct, a work nine years in the making, Dale Carpenter challenges what we thought we knew about the case. Drawing on dozens of interviews, he analyzes the claims of virtually every person involved. Carpenter first introduces us to the interracial defendants themselves, who were hardly prepared “for the strike of lightning” that would upend their lives, and then to the Harris County arresting officers. He charts not only the careful legal strategy that Lambda Legal attorneys adopted to make the case compatible to a conservative Supreme Court but also the miscalculations of the Houston prosecutors who assumed that the nationâ€™s extant sodomy laws would be upheld. Dale Carpenter clerked for Judge Edith H. Jones of the Fifth Circuit Court of Appeals and blogs frequently for The Volokh Conspiracy. Charles Lane is the author of The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.
Geoffrey R. Stone of the University of Chicago Law School says, “Dale Carpenter’s Flagrant Conduct does for Lawrence v. Texas what Richard Kluger’s Simple Justice and Anthony Lewis’s Gideon’s Trumpet did for Brown v. Board of Education and Gideon v. Wainwright. It tells the story of a profoundly dramatic and important Supreme Court decision in a way that brings to life the stakes, the participants, the justices, and the drama of the constitutional controversy. It is a landmark achievement.”
Lawrence Vs. Texas (2003) – Opinion (Kennedy) – Supreme Court Of The United Sates Of America
Justice Kennedy delivering the opinion of the United States Supreme Court in the case John Geddes Lawrence and Tyron Garner v Texas 02-102 (2003). The court found that a Texas law classifying consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th amendment. Kennedy is joined by Stevens, Souter, Ginsburg, Breyer, while O’Connor wrote a separate concurrence. Justice Scalia wrote a dissent, which is joined by Rehnquist, Thomas. Thomas also wrote a separate dissenting opinion.
Lawrence Vs. Texas (2003) – Dissent (Scalia) – Supreme Court Of The United Sates Of America
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 (2003), is a landmark decision by the United States Supreme Court. In the 6–3 ruling, the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state and territory. The Court overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.
The case attracted much public attention, and a large number of amici curiae (“friends of the court”) briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence.
Legal punishments for sodomy often included heavy fines and/or life prison sentences, with some states, beginning with Illinois in 1827, denying other rights, such as suffrage, to anyone convicted of the crime of sodomy. In the late 19th and early 20th centuries, several states imposed various eugenics laws against anyone deemed to be a “sexual pervert”. As late as 1970, Connecticut denied a driver’s license to a man for being an “admitted homosexual”.
As of 1960, every state had an anti-sodomy law. In 1961, the American Law Institute’s Model Penal Code advocated repealing sodomy laws as they applied to private, adult, consensual behavior. Two years later the American Civil Liberties Union (ACLU) took its first major case in opposition to these laws. Most judges were largely unsympathetic to the substantive due process claims raised.
In Griswold v. Connecticut (1965), the Supreme Court struck down a law barring the use of contraceptives by married couples. In Griswold for the first time the Supreme Court recognized, at least for married couples, a right to privacy, drawing on the Fourth Amendment’s protection of private homes from searches and seizures without a warrant based on probable cause, the Fifth Amendment’s guarantee of due process of law, and the Ninth Amendment’s assurance that rights not specified in the Constitution are “retained by the people”. Eisenstadt v. Baird (1972) expanded the scope of sexual privacy rights to unmarried persons. In 1973, the choice whether to have an abortion was found to be protected by the Constitution in Roe v. Wade.
In Bowers v. Hardwick (1986), the Supreme Court heard a constitutional challenge to sodomy laws brought by a man who had been arrested, but was not prosecuted, for engaging in oral sex with another man in his home. The Court rejected this challenge in a 5 to 4 decision. Justice Byron White’s majority opinion emphasized that Eisenstadt and Roe had only recognized a right to engage in procreative sexual activity, and that long-standing moral antipathy toward homosexual sodomy was enough to argue against the notion of a “right” to sodomy. Justice Blackmun, writing in dissent, argued that Eisenstadt held that the Constitution protects people as individuals, not as family units. He then reasoned that because state intrusions are equally burdensome on an individual’s personal life regardless of his marital status or sexual orientation, then there is no reason to treat the rights of citizens in same-sex couples any differently.
By the time of the Lawrence decision, nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia—still banned consensual sodomy without respect to the sex of those involved, and four—Texas, Kansas, Oklahoma and Missouri—prohibited same-sex couples from engaging in anal and oral sex.
Arrest of Lawrence and Garner
On September 17, 1998, John Lawrence, a gay 55-year-old medical technologist, was hosting two gay acquaintances, Tyron Garner, age 31, and Robert Eubanks, 40, at his apartment on the outskirts of Houston. Lawrence and Eubanks had been friends for more than 20 years. Garner and Eubanks had a tempestuous on-again off-again romantic relationship since 1990. Lacking transportation home, the couple were preparing to spend the night. Eubanks, who had been drinking heavily, left to purchase a soda from a nearby vending machine. Apparently outraged that Lawrence had been flirting with Garner, he called police and reported “a black male going crazy with a gun” at Lawrence’s apartment.
Four Harris County sheriff’s deputies responded within minutes and Eubanks pointed them to the apartment. They entered the unlocked apartment toward 11 p.m. with their weapons drawn. In accordance with police procedures, the first to arrive, Joseph Quinn, took the lead both in approaching the scene and in later determining what charges to bring, if any. He later reported seeing Lawrence and Garner having anal sex in the bedroom. A second officer reported seeing them engaged in oral sex, and two others did not report seeing the pair having sex. Lawrence did not acquiesce to the police. Instead he repeatedly challenged the police for entering his home. Quinn had discretionary authority to charge them for a variety of offenses and then to arrest them or not. When Quinn considered charging them with having sex in violation of state law, he had to get an Assistant District Attorney to check to the statutes to be certain they covered sexual activity inside a residence. He was told that Texas’s anti-sodomy statute, the “Homosexual Conduct” law, made it a Class C misdemeanor if someone “engages in deviate sexual intercourse with another individual of the same sex”. The statute, Chapter 21, Sec. 21.06 of the Texas Penal Code, had been adopted in 1973 when the state revised its criminal code to end its proscription on heterosexual anal and oral intercourse.
Quinn decided to charge Lawrence and Garner with having “deviate sex” and to arrest them. In the opinion of the author of the most detailed account of the arrests, Quinn’s decision was likely driven by Lawrence’s verbal abuse, along with some combination of Quinn’s negative response to homosexuality, the fact that Lawrence was white and Garner was black, and the false gun report. In the separate arrest reports he filed for each, he wrote that he had seen the arrestee “engaged in deviate sexual conduct namely, anal sex, with another man”. Lawrence and Garner were held in jail overnight. At a hearing the next day, they pled not guilty to a charge of “homosexual conduct”. They were released toward midnight. Eubanks pled no contest to charges of filing a false police report. He was sentenced to 30 days in jail but released early.
Prosecution and appeals
The gay rights advocates from Lambda Legal litigating the case convinced Lawrence and Garner not to contest the charges despite their innocence and to plead no contest instead. On November 20, Lawrence and Garner pleaded no contest to the charges and waived their right to a trial. Justice of the Peace Mike Parrott found them guilty and imposed a $100 fine and court costs of $41.25 on each defendant. When the defense attorneys realized that the fine was below the minimum required to permit them to appeal the convictions, they asked the judge to impose a higher penalty. Parrott, well aware that the attorneys intended to use the case to raise a constitutional challenge, increased it to $125 with the agreement of the prosecutor.
To appeal, Lawrence and Garner needed to have their cases tried in Texas Criminal Court. Their attorneys asked the court to dismiss the charges against them on Fourteenth Amendment equal protection grounds, claiming that the law was unconstitutional since it prohibited sodomy between same-sex couples, but not between heterosexual couples. They also asserted a right to privacy and that the Supreme Court’s decision in Bowers v. Hardwick that found no privacy protection for consensual sex between homosexuals was “wrongly decided”. On December 22, Judge Sherman Ross denied the defense motions to dismiss. The defendants again pled “no contest”. Ross fined them $200 each, the amount agreed upon in advance by both sides.
A three-judge panel of the Texas Fourteenth Court of Appeals heard the case on November 3, 1999. Their 2–1 decision issued on June 8, 2000, ruled the Texas law was unconstitutional. Justice John S. Anderson and Chief Justice Paul Murphy found that the law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on sex, race, color, creed, or national origin. J. Harvey Hudson dissented. The Court of Appeals decided to review the case en banc. On March 15, 2001, without hearing oral arguments, it reversed the three-judge panel’s decision and upheld the law’s constitutionality 7–2, denying both the substantive due process and equal protection arguments. Attorneys for Lawrence and Garner asked the Texas Court of Criminal Appeals, the highest appellate court in Texas for criminal matters, to review the case. After a year’s delay, on April 17, 2002, that request was denied. Lambda Legal’s Harlow called that decision “a major abdication of judicial responsibility”. Bill Delmore, the Harris County prosecutor who argued the case, called the judges “big chickens” and said: “They have a history of avoiding the hot potato cases if they can.”
Consideration by the Supreme Court
In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:
1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?3. Whether Bowers v. Hardwick should be overruled?
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations. An op-ed in support by former Sen. Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument. The attorneys for Texas did not control the amicus briefs submitted in support of their position. Two were by noteworthy scholars, Jay Alan Sekulow and Robert P. George, while the remainder represented religious and social conservatism. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had “severe physical, emotional, psychological, and spiritual consequences”.
At oral argument on March 26, 2003, Paul M. Smith, an experienced litigator who had argued eight cases before the Supreme Court, spoke on behalf of the plaintiffs. Texas Attorney General John Cornyn, then a candidate for the U.S. Senate, refused to have his office take the case. Charles A. Rosenthal, District Attorney of Harris County, represented the state. His performance was later described as “the worst oral argument in years”, but some believe his lack of preparation reflected his lack of enthusiasm for the statute he was defending.
On April 7, 2003, Sen. Rick Santorum referred to the oral arguments in Lawrence when asked his views on homosexuality:
We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold…
On June 26, 2003, the Supreme Court released its 6–3 decision striking down the Texas statute. Five justices held it violated due process guarantees, and a sixth, Sandra Day O’Connor, held it violated equal protection guarantees. The opinion overruled Bowers v. Hardwick and implicitly invalidated similar sodomy statutes in 13 other states.
Justice Anthony Kennedy wrote the majority opinion which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined. He wrote: “The petitioners [Lawrence and Garner] 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.” Kennedy reviewed the assumption the court made in Bowers, using the words of Chief Justice Burger’s concurring opinion in that case, that “Condemnation of [homosexual practices] is firmly rooted in Judeao-Christian moral and ethical standards.” He reviewed the history of legislation that criminalized certain sexual practices, but without regard for the gender of those involved. He cited the Model Penal Code’s recommendations since 1955, the Wolfenden Report of 1963, and a 1981 decision of the European Court of Human Rights.
He endorsed the views Justice Stevens had outlined in his dissent in Bowers and wrote: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The majority decision also held that the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections. Holding that “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”, the court struck down the anti-sodomy law as unconstitutional.
Kennedy underscored the decision’s focus on consensual adult sexual conduct in a private setting:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
Justice Sandra Day O’Connor filed a concurring opinion in which she offered a different rationale for invalidating the Texas sodomy statute. She disagreed with the overturning of Bowers—she had been in the Bowers majority—and disputed the court’s invocation of due process guarantees of liberty in this context. Rather than including sexuality under protected liberty, she used the equal protection argument and struck down the law because it was directed at one group. O’Connor maintained that a sodomy law that was neutral both in effect and application might be constitutional, but that there was little to fear because “democratic society” would not tolerate it for long. O’Connor noted that a law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to “preserv[e] the traditional institution of marriage” and not simply based on the state’s dislike of homosexual persons.
Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court’s decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered. He noted that the same rationale used to overturn Bowers could have been used to overturn Roe v. Wade, which the Justices in the majority in Lawrence had recently upheld in Planned Parenthood v. Casey. Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey.
Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.
He wrote that:
Today’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, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
He cited the majority opinion’s concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.
He continued: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” The majority’s “invention of a brand-new ‘constitutional right’”, he wrote, showed it was “impatient of democratic change”.
Justice Thomas wrote in a separate dissent that the law the Court struck down was “uncommonly silly”, a phrase from Justice Potter Stewart’s dissent in Griswold v. Connecticut, but he voted to uphold it as he could find “no general right of privacy” or relevant liberty in the Constitution. He added that if he were a member of the Texas legislature he would vote to repeal the law.
President Bush’s press secretary Ari Fleischer refused to comment on the decision, noting only that the administration had not filed a brief in the case. As governor, Bush had opposed repeal of the Texas sodomy provision, which he called a “symbolic gesture of traditional values”. After quoting Fleischer calling it “a state matter”, Linda Greenhouse, writing in The New York Times, commented: “In fact, the decision today…took what had been a state-by-state matter and pronounced a binding national constitutional principle.”
The Lambda Legal’s lead attorney in the case, Ruth Harlow, stated in an interview after the ruling that “the court admitted its mistake in 1986, admitted it had been wrong then…and emphasized today that gay Americans, like all Americans, are entitled to full respect and equal claim to [all] constitutional rights.” Prof. Laurence Tribe has written that Lawrence “may well be remembered as the Brown v. Board of Education of gay and lesbian America”. Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having “changed the status of homosexual acts and changed a previous ruling of the Supreme Court… this was a drastic rewrite”.
Peter LaBarbera, a senior policy analyst of the anti-LGBT group Culture and Family Institute, later president of the anti-LGBT organization Americans for Truth about Homosexuality, said that the end result of Lawrence v. Texas was “like the Roe v. Wade of the homosexual issue”. The United States Conference of Catholic Bishops called the decision “deplorable”.
Columbia Law Prof. Katherine M. Franke, in an analysis of Lawrence that appeared in June 2004, criticized its “domesticated” conception of liberty that failed to present “a robust concept of freedom”. She contrasted it with the language of Planned Parenthood v. Casey, which discussed “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”. Lawrence‘s emphasis on geographical privacy, in her view, described a circumscribed form of liberty and failed to develop the court’s evolving assertion of the right to autonomy and personal independence. Its assumption, based on nothing in the record, that Lawrence and Garner were in a relationship and had a personal bond leaves open the court’s view of their right to express their sexuality or fulfill erotic desires. She noted how a Kansas court in Limon v. Kansas read Lawrence to allow far greater punishment for engaging in same-sex activity with a minor than different-sex activity with a minor. She terms this “the legal enforcement of heteronormative preferences”. The decision in Limon was later reversed, in part on the basis of Lawrence.
A few months later, on November 18, 2003, the Massachusetts Supreme Judicial Court ruled that same-sex couples have a right to marry. Though deciding the case on the basis of the state constitution, Chief Justice Margaret Marshall quoted Lawrence in its second paragraph: “Our obligation is to define the liberty of all, not to mandate our own moral code.”
Upon rehearing Williams v. Pryor after Lawrence, the Eleventh Circuit Court of Appeals upheld Alabama’s ban on the sale of sex toys. Facing comparable facts, the Fifth Circuit struck down Texas’s sex toy ban holding that “morality is an insufficient justification for a statute” and “interests in ‘public morality’ cannot constitutionally sustain the statute after Lawrence“.
Lawrence invalidated age of consent laws that differed based on sexual orientation. The day after the Lawrence decision, the Supreme Court ordered the State of Kansas to review its 1999 “Romeo and Juliet” law that reduces the punishment for a teenager under 18 years of age who has consensual sexual relations with a minor no more than four years their junior, but explicitly excludes same-sex conduct from the sentence reduction. In 2004, the Kansas Appeals Court upheld the law as is, but the Kansas Supreme Court unanimously reversed the lower court’s ruling on October 21, 2005, in State v. Limon.
Subsequent federal and state case law has been quite explicit in limiting the scope of Lawrence and upholding traditional state regulations on marriage, expressly allowing a marriage-procreation link. (See Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. App. 2003); Morrison v. Sadler, 821 N.E.2d 15 (Ind. App. 2005); Hernandez v Robles (7 NY3d 338 2005).) In Muth v. Frank, 412 F.3d 808 (7th Cir. 2005), the Seventh Circuit declined to extend Lawrence to cases of consensual adult incest, although it did say that Lawrence v. Texas was “a new substantive rule and [...] thus retroactive”. The case was distinguished because parties were not similarly situated since there is in the latter case an enhanced possibility of genetic mutation of a possible offspring.
In Martin v. Ziherl, the Supreme Court of Virginia ruled the state’s fornication law unconstitutional. In the Holm case a polygamist attempted without success to use Lawrence to overturn Utah’s laws banning these polygamous relationships. The Supreme Court refused to hear his plea. The Connecticut Supreme Court rejected an argument based on Lawrence that a teacher had a constitutional right to engage in sexual activity with his female students.
The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has ruled that Lawrence applies to Article 125 of the Uniform Code of Military Justice, the article banning sodomy. It has also twice upheld prosecutions under Article 125 when applied as necessary to preserve good order and discipline in the armed forces.
Judge Vaughn Walker cited Scalia’s dissent in his decision in Perry v. Brown that found California’s Proposition 8 banning same-sex marriage unconstitutional.
The level of scrutiny applied in Lawrence
Justice Scalia and others have noted that the majority did not appear to apply the strict scrutiny standard of review that would be appropriate if the Lawrence majority had recognized a full-fledged “fundamental right”. He wrote the majority, instead, applied “an unheard-of form of rational basis review that will have far-reaching implications beyond this case”.
Nan D. Hunter has argued that Lawrence used a new method of substantive due process analysis, and that the Court intended to abandon its old method of categorizing due process rights as either “fundamental” or “not fundamental” as too restrictive. Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government’s action has not been arbitrary. Justice Stevens has repeatedly criticized tiered scrutiny and prefers a more active judicial balancing test based on reasonability.
Lower courts have read Lawrence differently on the question of scrutiny. In Lofton v. Secretary of the Department of Children and Family Services the United States Court of Appeals for the Eleventh Circuit upheld a state law barring adoption of children by homosexuals, holding explicitly that Lawrence did not apply strict scrutiny. In Witt v. Department of the Air Force, the United States Court of Appeals for the Ninth Circuit held that Lawrence applied intermediate scrutiny.