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Fallout from the Lawrence v. Texas case

Citing the Lawrence v. Texas ruling in other court
cases dealing with abortion, obscenity and polygamy

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The Supreme Court ruling & its implications are described in a separate essay

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The significance of the Lawrence v. Texas decision:

On 2003-JUN-26, the U.S. Supreme Court ruling declared Texas' anti-sodomy law unconstitutional. The state law had criminalized certain forms of sexual behavior if performed by persons of the same gender, but did not criminalize the same behaviors if performed by opposite-sex couples. But the ruling has a far broader impact than merely overturning a law in Texas and similar legislation in three contiguous states. As David Von Drehle, columnist for the Washington Post wrote:

"In an unexpectedly large step, the court said traditional morality is no justification for making legal distinctions among sexual behaviors of consenting adults. 'The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,' Justice Anthony M. Kennedy wrote, quoting approvingly from his colleague Justice John Paul Stevens."

That is, for consenting adults, the state or federal government cannot pass a law criminalizing a behavior, simply because the vast majority of its citizens feel that it is immoral or sinful. 1 What some people consider to be immoral behavior can no longer be criminalized if it is done in private; what some consider sinful behavior can no longer carry a jail sentence.

This decision has very wide implications. It eventually could impact laws which prohibit obscenity, prostitution, sado-masochism, indecent exposure, teenagers obtaining abortions without parental notification or consent, private drug usage, etc. Even those few remaining state laws criminalizing adultery and pre-marital sex might eventually be ruled unenforceable. The ruling could have ramifications that are more widely spread through the culture than Roe v. Wade in 1973 2 which made early abortions available to women across the U.S.

Von Drehle notes that:

"And in at least one earlier precedent, the realm of private, intimate life has been defined by the Supreme Court to include 'marriage . . . family relationships [and] child rearing'." 1 So, polygamy (either polyandry or polygyny) and same-sex marriages might become legalized.

Andrew Cohen, a CBS News legal analyst, said that the Supreme Court:

"has created a broad new legal rationale for future challenges by gay rights activists...This is a major ruling that will change a lot of other laws down the road."

He said that "gays and others" may be able to use the ruling to challenge a wide range of laws on the basis of a right to privacy. 3

Justice Antonin Scalia wrote the court's minority opinion, stating that the majority Justices pretended that they have left enough freedom:

"so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada...Do not believe it...[The majority opinion] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." 3

He said that laws against bigamy, adultery, prostitution, bestiality and obscenity were now susceptible to challenges. 5

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Possible uses of the Lawrence v. Texas decision:

David Von Drehle and Justice Antonin Scalia may well be accurate in their predictions. Within about five weeks, cases involving abortion, obscenity and polygyny either cited Lawrence v. Texas, or may have been influenced by that ruling:

bullet 2003-JUL-10: Florida: Parental notification law overturned: The legislature of the State of Florida passed a bill in 1999 that would have required women under the age of 18 to notify their parents at least 48 hours before they obtained an abortion. By a vote of 5 to 1, the Florida Supreme Court ruled that the law was unconstitutional because it violates privacy rights guaranteed by the state constitution. Senior Justice Leander Shaw wrote the majority ruling. He said that the court had to base its decision on law rather than morality, and that the privacy guarantee in the state's constitution is more extensive than the one implied by the U.S. Constitution. The decision may have been influenced by the U.S. Supreme Court decision in Lawrence v. Texas which severely restricts states from passing legislation that implements moral codes. 6


2003-JUL-25: Ohio: Attempt to overturn obscenity law: H. Louis Sirkin told Common Pleas Judge Richard A. Niehaus in Cincinnati, OH that because of the Lawrence v. Texas decision by the U.S. Supreme Court:

"Practically all choices made by consenting adults regarding their own sexual practices [are] a matter of personal liberty and thus beyond the reach of state control."

He may have overstated the significance of the court's ruling; the decision only refers to private sexual activity.

His client, Mr. Sean Jenkins, faces up to a year in prison on one count of pandering obscenity at his Tip Top Magazines store. The lawyer cited the legal concept of a "due process right to privacy." He asserted that the Supreme Court's decision can be extended to include the right to own and view obscene material at home. He argued that this would logically include the right for others to sell such materials. 7


2003-AUG-2: Utah: Lawrence v. Texas cited in polygyny case: Rodney Holm, allegedly a polygamist, has been charged in St. George, UT, with a number of crimes:

"Holm and his wives are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, which teaches polygamy as a central doctrine. Rodney Holm is a certified police officer in Hildale, Utah, and Colorado City, Ariz., and has had 21 children with the three wives. Holm is charged with three counts of unlawful sexual conduct with a 16- or 17-year old and one count of bigamy involving his third wife, Ruth Stubbs." 8

Plural marriages involving one man and multiple women are fairly common in Utah and some adjacent states among Mormons who belong to fundamentalist denominations which split away from the Church of Jesus Christ of Latter-day Saints. Tens of thousands of Mormons still practice it. The latter church once encouraged polygyny, but announced that they were suspending it -- at least temporarily -- in the fall of 1890. This caused a number of major schisms in the Mormon movement. Small groups, who felt that polygyny was a core belief, left the church to continue the practice. Rodney Parker, who is both the church's attorney and Holm's, cited the Lawrence v. Texas ruling and asked that the charges against his client be dismissed. Referring to the Supreme Court decision, he said: ''This has caused us to really rework our approach to the case and what kind of evidence to present." In his motion to dismiss the charges against his client, he wrote: "The national social order in the United States does not compel a conclusion that plural marriage is against public policy, especially when considered in light of emerging lifestyles." Assistant Attorney General Kristine Knowlton said that even if the bigamy charge were dismissed because of the precedent established by the Texas case, the other charge of sexual activity with a 16 or 17 year old could continue. Both persons must be 18 years-of-age before they can marry without parental consent in Utah. 9

bullet 2003-AUG-14: USA: Former officer suing Army: Lt. Col. Steve Loomis was discharged from the Army because he apparently revealed that he has a homosexual orientation. The Army invoked what has popularly been known as the "Don't Ask, Don't Tell" (DADT) policy. Loomis has filed a $1.1 million lawsuit to recover his financial losses allegedly caused by the discharge. He partially bases his lawsuit on the Lawrence v. Texas ruling. Elaine Donnelly, president of the Center for Military Readiness, suggests that the Bush Administration abandon the DADT policy, and enforce the the total ban on gays and lesbians serving in the military, as specified by a federal law passed in 1993. 10

bullet 2003-AUG-17: VA: Man accused of soliciting sex: Joel Singson has been accused of soliciting sex in a public restroom in Virginia Beach, VA. Detective Jarvis D. Lynch said that the area police actively pursue men who frequent public places such as restrooms and parks. The officers try to entrap them into soliciting sex. On MAR-20, Lunch pretended to look for a sexual encounter in a department store restroom. According to Singson, he told Lunch that we wanted to go to a private location outside the store where the sexual act would take place. According to Lynch, they agreed to do it in a toilet stall. Singson's lawyer, Jennifer Stanton, said that if the sodomy law became unconstitutional as a result of the Lawrence v. Texas decision, then the two sexual behavior that was discussed was would have been legal, and the charge should be dismissed. 11

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  1. David Von Drehle, "A Debate on Marriage, And More, Now Looms," Washington Post, 2003-JUN-27, Page A01, at:
  2. Roe v. Wade, 410 US 113 (1973) at:
  3. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
  4. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
  5. Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page A1 & A19
  6. "Florida Court Strikes Down Abortion Parental Notification Law," Associated Press, 2003-JUL-10, at:
  7. "U.S. Supreme Court decision on sodomy affecting obscenity laws," Massachusetts Family Institute news release, 2003-JUL-25.
  8. "Defense in polygamist case cites sodomy ruling," Associated Press, at:
  9. "Teens/Minors marriage license laws," US Marriage Laws, at:
  10. Chad Groening and Jenni Parker, "Scrap 'Don't Ask, Don't Tell' and Enforce Military's Ban, Expert Says," 2003-AUG-14, at:
  11. "Lawyer Uses Texas Case To Challenge Virginia Sodomy Law," Associated Press, at:

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Copyright ©  2004 & 2013 by Ontario Consultants on Religious Tolerance
Originally written: 2003-AUG-2
Latest update: 2013-FEB-22
Author: B.A. Robinson

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