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Big boost for privacy rights

In a ruling on a Texas law, the Supreme Court strengthened both gay rights and abortion rights.

By Staff writers of The Christian Science Monitor, Staff writers of The Christian Science Monitor / June 27, 2003



WASHINGTON

The US Supreme Court has drawn a thick constitutional curtain around the nation's bedrooms.

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In a landmark 6-to-3 decision announced Thursday, America's highest court commanded the states to get out of the business of attempting to regulate what can or can't happen within private, intimate relationships between consenting adults. Instead, five of the six majority justices ruled that Americans enjoy a fundamental right to conduct the most personal and private aspects of their lives free from the prying eyes of government officials.

"Freedom extends beyond spatial bounds," writes Justice Anthony Kennedy in the majority opinion. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

In a dissent, Justice Antonin Scalia criticized "the invention of a brand-new 'constitutional right' by a court that is impatient with democratic change." He said such issues should be resolved by elected lawmakers, not decreed by judges.

The case is significant in constitutional terms because in recognizing a fundamental right to relationship privacy, the majority justices have bolstered one of the pillars of the high court's controversial 1973 abortion ruling. Thursday's decision, by finding once again that privacy in "intimate conduct" between adults is a constitutionally protected right, will make it much harder for a future court to overturn the 1973 Roe v. Wade precedent.

"Roe v. Wade is inviolable for all time," says David Garrow, a legal historian and author of the book "Liberty and Sexuality."

The case also marks a turning point for gay rights in the US, including the push for legal recognition of same-sex marriage. "This is the most important event in American history with regard to gay people," Mr. Garrow says. "What is important is the absolute, total strength, commitment, and passion with which this opinion declares that gay Americans are utterly and fully equal Americans."

Conservatives view the ruling as a major setback. "This decision weakens the traditional family," says Jay Sekulow of the American Center for Law and Justice. "It should be up to the states and their legislatures to determine whether to criminalize a particular sex act outside marriage."

These developments came in Lawrence v. Texas, a case challenging Texas' Homosexual Conduct Law. The law made it a crime for two members of the same gender to engage in various sexual behaviors that are not illegal for heterosexual couples in that state.

Although she joined in the judgment of the court, Justice Sandra Day O'Connor did not share in the majority's endorsement of a bedroom privacy right. Instead, she said that in her view the Texas law was unconstitutional because it violated equal-protection principles of the 14th Amendment by requiring gay Texans to face criminal penalties for conduct that was not illegal for heterosexual couples.

"A law branding one class of persons as criminal solely based on the state's moral disapproval of that class and the conduct associated with that class run contrary to the values of the Constitution and the Equal Protection Clause," she writes in her concurring opinion.

The landmark ruling invalidates similar anti-sodomy laws that apply only to homosexuals in Kansas, Missouri, and Oklahoma. It also strikes down anti-sodomy laws in nine other states that criminalize those same sexual acts for both heterosexual and homosexual couples. Those states are: Alabama, Florida, North Carolina, South Carolina, Louisiana, Utah, Virginia, Idaho, and Mississippi.

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