WASHINGTON – In a watershed decision Thursday that could transform how the government regulates morality, the Supreme Court, struck down state sodomy laws as demeaning to homosexuals and said the government has no authority to regulate the sexual behavior of “consenting adults acting in private.”

In an angry dissent delivered from the bench, Justice Antonin Scalia said the majority opinion “effectively decrees the end of all morals legislation” and threatens a “massive disruption of the current social order.”

The justices, ruling 6-3 on a case from Texas, also overturned the court’s own 1986 ruling upholding a now-repealed Georgia statute banning sodomy, thus invalidating remaining sodomy laws in Texas and 12 other states.

“When homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres,” Justice Anthony M. Kennedy wrote in the majority opinion.

But Scalia argued that the ruling could pave the way for same-sex marriages and undercut laws banning bigamy, adult incest, prostitution and other sexual acts.

“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,” Scalia wrote.

Attorneys on both sides of the issue agreed that the decision marked a major expansion for gay rights and could fuel legal efforts to permit homosexual marriages and gays in the military.

The ruling, they said, also gives gays a strong legal weapon against discrimination in the workplace and other venues.

“This is a wonderful day for gay Americans,” said Ruth E. Harlow of Lambda Legal Defense and Education Fund, praising the court for an “historic transformative decision,” which she said, reflected changing public attitudes toward gays and lesbians.

Upholding an appeal by John Lawrence and Tyron Garner of Houston, the court specifically struck down the 1973 Texas Homosexual Conduct law, which prohibits sodomy, defined as anal or oral sex, among homosexuals but doesn’t outlaw the same behavior for heterosexual couples.

“The petitioners are entitled to respect for their private lives,” Kennedy wrote.

“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

Lawrence, in his first public comments since filing the case, said the ruling “not only allows us to get on with our lives but it opens the door for gay people all across the country to be treated equally.” He read from a prepared statement during a conference call with reporters but declined to take questions.

Social conservatives and religious groups assailed the decision.

“This court continues to pillage its way through the moral values of this country,” said Tom Minnery, a leader with Focus on the Family, an evangelical group based in Colorado Springs, Colo.

The ruling dismantled the Supreme Court’s 17-year-old Bowers v. Hardwick ruling used as the legal precedent for the remaining state sodomy laws.

The decision, which concluded that “homosexual sodomy is immoral and unacceptable,” upheld a Georgia law that was later repealed by the state’s legislature.

“Bowers was not correct when it was decided, and it is not correct today,” Kennedy wrote. “It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Siding with the majority were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O’Connor. Chief Justice William Rehnquist and Justice Clarence Thomas joined Scalia in the dissent.

Lambda’s Harlow said the decision sent a “very clear directive” to other states “that they cannot keep using their sodomy laws.” Other states with sodomy laws include North Carolina, South Carolina, Florida, Mississippi, Alabama, Idaho, Utah, Louisiana, Oklahoma, Kansas, Missouri and Virginia.

Harlow said the ruling also “makes it much harder” for society to continues banning gay marriages and gays in the military. Gay couples have filed suits in Indiana, New Jersey and Massachusetts to permit them to marry. Canada recently allowed gay couples to obtain marriage licenses.

Gays are prohibited from serving in the U.S. military, although a “don’t ask, don’t tell” policy implemented by the Clinton administration allows them to serve as long as they don’t reveal their sexual preferences.


Lawrence and Garner initiated the case after they were arrested on Sept. 17, 1998, by Harris County sheriff’s officers who entered Lawrence’s apartment while they men were engaged in sex. The officers said they were responding to an apparently false informant’s tip that an armed man was “going crazy” in Lawrence’s apartment. The men were jailed and fined $200 on a violation of the homosexual conduct statute.

A three-judge panel of the Texas Court of Criminal Appeals overturned their conviction. But the full appeals court reinstated the conviction in March 2001, saying the law “advances a legitimate state interest, namely preserving public morals.”

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,” the Supreme Court ruled Thursday.

“The central holding of Bowers has been brought in question by this case, and it should be addressed,” Kennedy wrote. “Its continuance as a precedent demeans the lives of homosexual persons.”

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.

In our tradition, the state is not omnipresent in the home.”

But Scalia, defending the rationale for the Bowers decision, argued that “countless” laws and court decisions have been based on the principle that certain sexual behavior is “immoral and unacceptable.”

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices,” he wrote. “Every single one of these laws is called in to question by today’s decision.”

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(c) 2003, Knight Ridder/Tribune Information Services.

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GRAPHIC (from KRT Graphics, 202-383-6064):

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