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In a ruling as belated as it was welcome, the Supreme Court has issued a declaration of dignity for gay and lesbian Americans. Like Yick Wo v. Hopkins, Brown v. Board of Education and Loving v. Virginia, Lawrence v. Texas is destined to become a landmark with impact far beyond the legal issues of the case itself . Justice Anthony Kennedy seems to have understood as much. His majority ruling striking down Texas’ ban on homosexual conduct speaks less about sex than it does about the sacredness of personal relationships, no matter how we choose to define them. “The petitioners are entitled to respect for their private lives,” Kennedy wrote, in a passage that must have brought tears to many thousands of eyes Thursday. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Kennedy’s opinion for a five-member majority also forcefully repudiated the court’s wrongheaded 1986 decision in Bowers v. Hardwick, 478 U.S. 186. “Its continuance as precedent demeans the lives of homosexual persons,” Kennedy wrote. It would have been safer for the court to follow the path outlined by Justice Sandra Day O’Connor in her concurring opinion. Rather than overrule Bowers, O’Connor wrote, the court could hold that anti-sodomy laws violate the Equal Protection Clause if they target homosexuals only. Kennedy and the majority acknowledged that the argument is “tenable,” but insisted on going further, again alluding to basic human dignity. “If protected conduct which is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.” Predictably, Justice Antonin Scalia was apoplectic in dissent. “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,” Scalia wrote. He characterized the majority ruling as “the court’s response [�] to those who have engaged in a 17-year crusade to overrule Bowers.” The idea that only the homosexual intelligentsia could have been offended by Bowers, or that the case is important only to “activists” is laughable. If the government were to criminalize consensual sex among any group of adults, it’s a safe bet the issue would rise to the top of their “agenda” fairly quickly, regardless of orientation. But it’s not really what goes on behind closed doors that bothers Scalia and the dissenters so much. It’s the right to be gay that the court is affirming — or, as Kennedy calls it, “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” That’s anathema to Scalia. “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as Scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote. Scalia says gays should make their case at the ballot box, but that’s not a meaningful answer when you’re an irrationally hated minority. We need the courts, and that damned law-profession culture, to lead the way sometimes — just as we did when those same many Americans didn’t want blacks in their schools or Asians as their dry cleaners. Lawrence‘s practical impact is hard to gauge at this point. Therese Stewart, chief of litigation for the San Francisco city attorney’s office, said the elimination of Bowers from the law books will be enormous help to gays and lesbians in court, particularly in adoption and child custody cases. “In so many instances, the state courts, the state judges and federal judges have relied on Bowers as a basis for saying ‘It’s OK to discriminate,’” she said. But the ruling, while powerful in its language, is cautious in the legal precedents it invokes. As Scalia points out, the majority never specifically declares same-sex conduct a fundamental right under the Due Process Clause. The majority’s reasoning is more along the lines of “because we say so,” which perhaps shouldn’t be surprising from the court that brought us Bush v. Gore. But you could say the same thing about Brown v. Board of Education. That doesn’t mean the ruling isn’t a landmark. “It’s like a turning of the tide,” said Laurie Simonson, an attorney active with Bay Area Lawyers for Individual Freedom. “It made my day,” said Stewart. “It made my week. It made a lot longer than that.”

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