Big boost for privacy rights

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

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

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.

The ruling is consistent with a broad trend among state lawmakers. Roughly a dozen states have repealed anti-sodomy laws since 1986.

In his heated dissent, Justice Scalia predicted the majority opinion lays the foundation for future rulings mandating government recognition of same-sex marriages as well as judicial invalidation of laws banning bigamy, adultery, adult incest, bestiality, and obscenity. "This effectively decrees the end of all morals legislation," Scalia says.

The decision stems from the September 1998 arrest of two men, John Lawrence and Tyron Garner, for allegedly violating Texas' Homosexual Conduct Law. The law made it a crime to engage in "deviate sexual intercourse with another individual of the same sex."

The two men were arrested after a Harris County deputy sheriff, who was responding to a false report of an armed man causing a disturbance, burst into Mr. Lawrence's apartment and saw Lawrence and Mr. Garner engaged in a sex act.

Both men were held in jail overnight, and, following their convictions, were ordered to pay $341 in fines and court costs.

An appeals court panel reversed their convictions, ruling that the law was a form of unconstitutional discrimination. That decision was later overturned by the full appeals court. The convictions were subsequently also upheld by the Texas Court of Criminal Appeals, the highest court in Texas. Last December, the US Supreme Court agreed to review the case.

In finding that the Texas law violated Lawrence's and Garner's constitutional right to "liberty" in intimate relations, the court overturned a 1986 precedent in which the court upheld a Georgia anti-sodomy statute by ruling in part that there was no fundamental right to engage in sodomy. In overturning the case, Bowers v. Hardwick, Justice Kennedy said such homosexual conduct laws were an invitation to subject gays and lesbians to discrimination in the public and private spheres. "Its continuance as precedent demeans the lives of homosexual persons," he writes.

"The petitioners are entitled to respect for their private lives," Kennedy writes. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."

In his dissent, Scalia says the majority "has largely signed on to the so-called homosexual agenda" aimed at "eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

"It is clear from this that the court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed." Scalia says.

"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 writes. "They view this as protecting themselves and their families from a lifestyle that they believe is immoral and destructive." He adds, "The court views it as 'discrimination.' "

Scalia's dissent was joined by Chief Justice William Rehnquist and Justice Clarence Thomas. Kennedy's majority opinion was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice O'Connor concurred in the judgment.

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