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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, No. 02-102. “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, 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.” 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.” Chief Justice William Rehnquist and Clarence Thomas joined the dissent. University of Southern California law 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 that 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, I would vote to repeal it.” Outside the Court, opponents of gay rights also 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.” Legal Times reporter Marie Beaudette contributed to this article.

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