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WASHINGTON — In a dramatic declaration of the rights and status of gays in American society, a 6-3 majority of the U.S. Supreme Court on Thursday struck down a Texas same-sex sodomy law on due process grounds. In doing so, the court took the rare step of sweeping aside a recent precedent: its controversial 1986 decision in Bowers v. Hardwick. “Its continuance as precedent demeans the lives of homosexual persons,” wrote Justice Anthony Kennedy for the majority in Lawrence v. Texas, 03 C.D.O.S. 5559. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Kennedy added, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Ruth Harlow, legal director of Lambda Legal Defense and Education Fund, who was instrumental in deciding to bring the Lawrence case to the Supreme Court, applauded the ruling as a “transformational” event that ushers in a new era of legal and social acceptance for homosexuals and recognizes “the basic humanity of gay people.” Jon Davidson, the senior staff attorney in Lambda’s Los Angeles office, said the ruling should shake things up in California, too, even though the state repealed its sodomy law in 1975. “The court recognized this was about autonomy in the choice of partners and kind of saw this as not just about sexual conduct, but about intimate connections, and that starts to raise issues about how same-sex couples are treated by the law across the board,” he said. “I believe this decision will play a similar role in the struggle for gay rights that Brown v. Board of Education played in the struggle for minority rights.” The majority’s decision to ground its ruling in the 14th Amendment’s due process clause — rather than only the amendment’s equal protection provision — came as a surprise to some analysts. The result is a more forceful opinion that could have broader implications. “Government has just lost its weapon of mass destruction. It can no longer use the existence of sodomy laws to justify discrimination,” says Georgetown University law professor Chai Feldblum, a leading strategist for the gay rights legal movement. “As of today, all sodomy laws are unconstitutional. Today is a day that brings tears to the eyes of gay people across America.” Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Kennedy’s opinion. Justice Sandra Day O’Connor, part of the majority in Bowers, wrote a concurring opinion on Thursday stating that she would have invoked equal protection, and that she does not agree Bowers should be overruled. The ruling came on the final day of the court’s decision-making for the term — a day when many were also expecting a justice to retire. During their half-hour sitting, no such announcement was made. Audience members gasped when Chief Justice William Rehnquist began a statement noting a court retirement — but it was the retirement of Shelley Dowling, the Supreme Court’s librarian. The gay rights decision, paired with Monday’s rulings on affirmative action, marked a surprising show of strength and dominance for the court’s moderate-to-conservative swing-vote justices — Kennedy and O’Connor — thwarting the conservative wing, represented by Rehnquist, Antonin Scalia and Clarence Thomas. On Thursday, Scalia read from the bench excerpts from an angry dissent that calls the court majority “a product of a law-profession culture that has largely signed on to the so-called homosexual agenda.” Overturning Bowers, Scalia said, amounts to a “massive disruption of the current social order” that will undermine laws on activities ranging from bigamy to incest to obscenity and prostitution. He also suggested that laws against gays in the military were vulnerable, and he said that the ruling “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” Rehnquist and Thomas joined the dissent. University of Southern California Law School professor Erwin Chemerinsky said laws prohibiting incest and prostitution have other rationales that could survive even under Thursday’s ruling. As for Scalia’s statement on gay marriage, Chemerinsky said the ruling “should lead to allowing gay marriage, but that’s down the road.” Lambda’s Harlow said at a Washington, D.C., press conference that the ruling “changes the landscape” on the marriage and gays-in-the-military issues. She said much of the military’s “Don’t Ask, Don’t Tell” policy is based on the premise that the government could regulate private consensual sexual behavior. “The linchpins of the military policy have to be re-examined,” she said. In a separate dissent, Thomas said the judgment about laws like the one at issue should be made by elected officials, not by the judiciary. “If I were a member of the Texas Legislature,” he wrote, “I would vote to repeal it.” Outside the court, opponents of gay rights attacked the ruling as a sign of the erosion of morality. Peter Sprigg, senior marriage policy analyst for the Family Research Council, said the court had no basis to overturn Bowers except a “shift in the winds of cultural fashion.” After placing a red stole around his neck, Rev. Rob Schenck, president of the National Clergy Council, delivered a sermon outside the court. “The court has made a serious mistake,” he said, calling homosexuality a “violation of God’s laws.” He called for Texas to re-examine its laws and bring back one that bans not only gay sex but also heterosexual sodomy and adultery. Justice Kennedy, in his majority opinion, said the sodomy case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” But Scalia dismissed that statement as true “only if one entertains the belief that principle and logic have nothing to do with the decisions of this court.” The majority opinion was remarkably dismissive of Bowers, its rationale and even its factual findings about the history of laws on homosexual conduct. The late Chief Justice Warren Burger had written in a concurrence in Bowers that laws against such activity “have ancient roots.” But, Kennedy stated Thursday, Burger’s “historical premises are not without doubt and, at the very least, are overstated.” Kennedy invoked instead more recent enactments — including European laws and rulings — as well as Griswold v. Connecticut, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey as authority for the conclusion that private sexual acts between consenting adults are part of personal liberty protected by the due process clause. Liberty encompasses personal decisions about marriage, procreation, family relationships and education, he said, adding, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” That sentiment permeated the ruling, as Kennedy made similar comparisons, giving the interests of gays and heterosexuals the same weight. In another section, Kennedy asserted, “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 to be said marriage is simply about the right to have sexual intercourse.” Kathryn “Kate” Kendell, executive director of the National Center for Lesbian Rights, summed up Bay Area reaction by chirping that she was “happy, happy, happy. There has been no realm of public or private lesbian or gay lives that have not been devastated by the existence of these laws. Today is truly a new day. Congratulations to us all!” The timing of the ruling — three days before annual gay pride celebrations in San Francisco and several other cities –couldn’t have been more perfect in the minds of many. “What a gift for Gay Pride Month from a government that has not had the dignity to declare it,” said Roeca Haas Hager partner Russell Roeca, referring to the Justice Department’s begrudging backing of its employees’ annual Gay Pride celebrations. “It’s so long overdue. It’s just a simple, fundamental right,” Roeca, also a State Bar governor, said. “We know our government has too much on its plate to be looking in our bedrooms. I was so glad I was not going into rage for a change.” Pointing to Sunday’s Gay Pride parades, Julie Baird, an associate in the San Francisco office of San Diego’s Luce, Forward, Hamilton & Scripps, said she’s glad it’s “going to be a party and not a protest.” She said she hadn’t held out “high hopes” that the Supreme Court would rule favorably for gays and lesbians. Clyde Wadsworth, a special counsel at Heller Ehrman White & McAuliffe who has been involved in high-profile gay rights cases, said Thursday’s ruling could affect a case he has before the Ninth Circuit U.S. Court of Appeals. In that case, the Air Force is trying to force San Francisco psychiatrist John Hensala to repay the money it spent on his medical school costs before discharging him for being gay. The Ninth Circuit had put Hensala’s case on hold pending the outcome of Lawrence. “This opinion provides us with a strong argument that, in fact, the recoupment in [Hensala's] case was a type of punishment for merely his propensity to engage in gay sexual conduct, and that at the very least we should be able to develop those facts in discovery,” Wadsworth said. “This case provides us some strong ammunition for our due process and equal opportunity arguments.” Wadsworth, who also represented one of the plaintiffs in Evans v. Romer, in which the U.S. Supreme Court in 1996 struck down a Colorado law prohibiting the passage of anti-discrimination laws for gays and lesbians, attended oral argument in the Texas sodomy case. “You feel like you’re part of history,” he said. Legal Times reporter Marie Beaudette and Recorder Associate Editor Mike McKee contributed to this article. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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