Sodomy laws struck down
Greg BurghardtIn a ruling that will strike down sodomy laws nationwide, the Supreme Court ruled Thursday that a Texas law criminalizing sodomy infringes on the privacy rights of gay men and women.
In writing for the majority, Justice Anthony Kennedy said “(The men arrested for having sex) 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.”
The case began when a neighbor with a grudge faked a distress call to police, telling them that a man was “going crazy” in John Geddes Lawrence’s apartment. Police went to the apartment, pushed open the door and found Lawrence and Tyron Garner having sex. Both men were fined $200 and spent a night in jail following the 1998 misdemeanor sex charge.
“This (Supreme Court) ruling lets us get on with our lives and it opens the door for gay people all over the country,” Lawrence said Thursday.
Jeff Montgomery, executive director of the Triangle Foundation’s Michigan chapter, agreed.
“This ruling gave dignity and respect to a whole community of people,” he said. “It’s an incredibly significant finding of the Court,” he said. “It ... ends the historical tradition of criminalizing and demonizing gay and lesbian people by demeaning private sexual relationships and sexual activity. ... This is a day we all dreamed about, and we never really allowed ourselves the luxury of thinking this day would come.”
The Court voted 6-3 to strike down Texas’ law, which made homosexual sex a crime, including oral or anal sex, which are legal for heterosexual couples. By declaring the Texas law unconstitutional, the Supreme Court negated laws banning oral and anal sex between same-sex couples in four states – Texas, Kansas, Oklahoma and Missouri – and consensual sodomy for anyone in nine states – Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.
Michigan’s sexual activity law, passed in 1931, states “Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.”
Because “crime against nature” is never defined, however, courts and law experts are left to interpret the law, resulting in prosecution for not only sodomy, but prostitution and indecent exposure.
Montgomery said the law is vague, and could mean many things if interpreted literally.
“If you think about it, the president of the Dow Chemical Company should be jailed for ‘abominable and detestable crime against nature,’ for pouring chemicals and waste into rivers. Now, we all know that’s not what the law meant, but that’s what the language says,” he said.
“’Abominable and detestable crime against nature’ is an ancient, Victorian, quaint phrase, but it doesn’t have much to do with the law. ... A week ago (June 25), it would have been an up-in-the-air question whether Michigan’s sodomy law would ever be struck down,” said Montgomery, whose group has been lobbying to have the law stricken from the books. “Now, it wouldn’t surprise me if that happens very soon.”
He said the implication for Michigan reaches far beyond the law that is on the books. He said conservative legislators in Michigan have resisted including sexual orientation in the list of protected groups under anti-discrimination laws, because they say the law can’t protect a group that is criminalized in another part of the law. Also, during divorce and custody proceedings, if it comes out that one parent is gay, the judge can use the sodomy law to deny custody.
“The implications go far beyond sexual activity,” Montgomery said.
Gary Glenn, president of the American Family Association of Michigan, headquartered in Midland, said the impact in Michigan will be minimal, because the Michigan law doesn’t directly criminalize homosexual sodomy and was rarely enforced, but the national implication is huge.
“We agree with Chief Justice Warren Burger’s opinion in the 1986 (Bowers v. Hardwick sodomy) case: ‘In constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy.’”
As governor of Texas, Glenn said, President George W. Bush expressed support for the sodomy law.
“It points to how important President George W. Bush’s future Supreme Court appointments will be. We hope he will appoint justices who will adhere to the words of the constitution, and not create rights out of thin air.”
Texas had defended its sodomy law as in keeping with the state’s interest in protecting marriage and child-rearing. Homosexual sodomy, the state argued, “has nothing to do with marriage or conception or parenthood and it is not on a par with these sacred choices.”
In writing for the dissent, Justice Antonin Scalia said the ruling would open the door for same-sex marriages.
“This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples,” Scalia wrote.
Glenn said the AFA is working to increase awareness and activism about the possibility of gay marriages.
“This directive may lead to gay marriage. ... We hope the decision will wake the citizens of Michigan who believe marriage is a union between one man and one woman. ... We agree with that concern. We’d like to see the State Constitution reflect the one man, one woman amendment, and inevitably the U.S. Constitution. ... (If it is not part of the constitution), liberal judges in Ann Arbor would be lining up to change the law.”
Scalia said the law could threaten laws banning bestiality, bigamy and incest, and the Court was co-opted by the “so-called homosexual agenda.”
“The court has taken sides in a culture war,” Scalia said.
Glenn said the AFA agreed with Scalia’s opinion.
“By using the ‘right of privacy,’ which essentially says that consenting adults can do anything behind closed doors, on what legal or logical basis could the court uphold prostitution, bigamy, bestiality, drug abuse?”
Montgomery said Scalia seems very uncomfortable about homosexuality, and his personal feelings determined his decision on the case.
“Justice Scalia, for all his excitement, is obviously a pretty hysterical man. To go from Justice Kennedy, whose opinion was so eloquently put. ... It would be laughable if it wasn’t so pathetic coming from a Supreme Court justice. I think he needs to retire, because he obviously needs a break.
“(Claiming that the ruling opens the way for the legalization of bigamy and incest) a way for people of his ilk – and from what I’ve read he seems pretty homophobic – to deflect and distract from the decision by bringing in these scenarios that will never happen. ... Those are things that no one would ever consider making legal.”
Glenn said there are other problems posed by the decision. For example, he said, “like private bigamy, homosexuality can have serious public health consequences.”
The “serious public health consequences” he listed include: increased domestic violence, mental illness, substance abuse, increased AIDS and Hepatitis C rates and premature death.
“This is a matter of the states’ right to protect the health and morals of their citizens going against the private actions of a few individuals,” Glenn said.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O’Connor agreed with the outcome of the case but would have decided it on different constitutional grounds.
Chief Justice William H. Rehnquist and Justices Scalia and Clarence Thomas dissented. Thomas wrote separately to say that while he considered the Texas law at issue “uncommonly silly,” he could not agree to strike it down because he found no general right to privacy in the Constitution.
The Associated Press contributed to this report.
