Re-criminalizing same-sex behavior in the U.S.
Will it happen?
Review of the U.S. Supreme Court 2003-JUN decision: Livingston v. Texas:
Police in Texas found two gay men engaging in private sexual activity in one of their apartments. They were arrested and charged with a misdemeanor
for what the law called "deviate sexual intercourse." Four contiguous states -- Texas, Kansas, Missouri, and Oklahoma -- had laws
on the books which criminalized certain sexual activities by same-sex couples which were quite legal when performed by a man and women. The men were found
guilty at trial. Their case worked its way to the U.S. Supreme Court, which accepted the task of ruling whether heterosexuals will continue to enjoy
special sexual rights in these states which are denied homosexuals.
"Harvard Professor Laurence Tribe cryptically pointed out, the key question, he argues, should be 'not what were Lawrence and his partner doing
in that bedroom, but what was Texas doing there?' " 1
On 2003-JUN-26, the U.S. Supreme Court made two rulings.
||Unnoticed in almost all media reports was a 5 to 4 decision to overturn the court's famous 1986 decision:
Bowers v. Hardwick. 2 That ruling had upheld the constitutionality of a sodomy law in Georgia. Justice Kennedy,
writing for the majority, apologized for the court's error. In an amazing passage, he stated that Bowers' "continuance as precedent
demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is not correct today. It ought not to remain binding
precedent. Bowers v. Hardwick should be and now is overruled."
||Then the court voted 6 to 3 to declare as unconstitutional the Texas anti-sodomy law which criminalized anal or oral sex if performed by two persons
of the same-sex. 3 They appear to have based their decision on the concept of personal privacy and liberty from government intervention,
which the court earlier found to be implicit in the U.S. Constitution when the famous Roe v. Wade decision was handed down in 1973. The latter
ruling declared early abortions to be legal across the U.S.
Impacts of these decisions included:
||The Texas "sodomy" law, and very similar laws in Kansas, Missouri, and Oklahoma, were declared unconstitutional.
||Additional "sodomy" laws in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia were also
||The court determined that the state has no business to criminalize private, consensual sexual behavior by adults. Just because the state considers an
action to be immoral, it cannot necessarily criminalize it.
The basis of the Lawrence v. Texas decision:
The Supreme Court based its decision on the right of personal privacy which the court has found implicit in the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution." Due process of law is a legal concept that ensures the government will respect all
of a person's legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. Due
process has also been interpreted as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice and liberty
" to all citizens. 4 The Supreme Court has determined that the due process clause implies that governments cannot pass legislation
that intrudes too deeply into the personal life of its citizens. There are limits to the ability of states to control personal behavior.
Section 1 of the Amendment states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." (We have emphasized the due process clause) 2
Under this clause, the U.S. Supreme Court has "...recognized such rights and the right to an early abortion, the right to use contraceptives,
[and] the right to medical treatment..." 2 For opposite-sex couples, the court has also recognized "...the right
to marry." 2 With the Lawrence v. Texas ruling it extended the right of privacy to include
consensual, private sexual acts. That decision gave homosexual and heterosexual adults the right to engage in private consensual sexual activities,
even if society generally disapproved of the behavior.
Justice Kennedy, writing for the majority, apologized for the court's 1986 error in Bowers v. Hardwick. In an amazing passage, he stated that
Bowers' "continuance as precedent demeans the lives of homosexual persons....[That decision] was not correct when it was decided, and it is
not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
This essay continues below.
Reversing Lawrence v. Texas:
As of 2005-MAR, this ruling has been in effect for almost two years. Roe v. Wade has been in effect for over three decades. But either or both could
be reversed at any time.
Consider the ruling by the U.S. Supreme Court in its famous 1986 case: Bowers v. Hardwick. That decision affirmed
that the State of Georgia had the authority to pass laws which criminalized private, consensual same-sex behavior which the legislators felt was
improper or immoral. After seventeen years the Court's Lawrence v. Texas ruling repudiated Bowers v. Hardwick and
apologized for its former decision. A slight shift in the makeup of the Court could reverse Lawrence v. Texas, reinstate Bowers v. Hardwick,
recriminalize private homosexual behavior, and apologize to the American people for ruling that homosexuals have equal rights.
The majority of justices can easily change their mind again and rule that states do have the authority to criminalize private consensual activities,
using as grounds that most people considered the behavior to be immoral. The Lawrence v. Texas vote was 5 to 4. This is a very common ratio for
cases involving moral and ethical topics -- particularly those involving human sexuality. If a similar case came up for review and one Justice changed
his or her mind, private, consensual sexual behavior could once more be criminalized.
How constitutionality/unconstitutionality is decided:
Generally speaking, there are two conflicting ways of viewing laws and constitutions:
||As living documents: In this view, the document's meaning is continually evolving to meet changing cultural beliefs, practices, and knowledge.
Justice Scalia describes what he called this "conventional fallacy" as interpreting the meaning of the text : "...from age to
age [as] whatever the society (or perhaps the Court) thinks it ought to mean." In Trop v. Dulles (1958) the court discussed the evolution
of the meaning of the cruel and unusual punishment clause in the U.S. Constitution's Eighth Amendment. The Court had earlier recognized that:
"the words of the Amendment are not precise...and that their...scope is not static.. They stated in Trop v. Dulles that "The
Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 5
The court has continued to assess the "cruel and unusual punishment" clause in 1988 by forbidding the execution of murderers who
were under the age of 17 at the time of their offense. In 2005-MAR, the court recognized the evolution of national and
international standards of decency by further reduced the cutoff age so that 16 and 17 year-old offenders could not be sentenced to be executed. As in
most rulings related to ethics and morality, the 2005 vote passed by the usual 5 to 4.
||As an enduring document: Justice Scalia, and other conservative Justices on the Supreme Court, agrees with this position. They are often
referred to as "strict constructionists." They interpret a legal document as meaning "today not what current society (much
less the Court) thinks it ought to mean, but what it meant when it was adopted." 6 Viewing the Bill of Rights and the
rest of the U.S. Constitution as an enduring document requires that the courts consider the society and the era in which the text was actually written.
They interpret the text within the belief systems of that time. On matters such as abortion access, the
death penalty, equal rights for gays and lesbians, and other "hot" topics, there has
been considerable change during the intervening centuries. But today's understanding is immaterial when it comes to interpretation of the Constitution as
an enduring document. The U.S. Constitution does not mention sexual orientation or abortion. In fact, the concept of sexual orientation did not
materialize until about two centuries after the Constitution was written. Abortion was almost unknown because of the risks to the woman. Thus the
Constitution is silent on these and similar topics. A state could pass a law criminalizing same-sex behavior or making any or all abortions illegal. It
could not be declared unconstitutional if a majority of Supreme Court justices become strict constructionists.
Three justices of the Supreme Court, all of whom were appointed by Republican presidents, appear to interpret the Constitution in this way. They tend
to vote as a conservative block on ethical and moral matters. They are Chief Justice William Rhenquist (appointed by President Nixon) and Justices
Antonin Scalia (appointed by President Reagan) and Clarence Thomas (appointed by President George Bush).
Justice Clarence Thomas dissented in Lawrence v. Texas. He wrote a separate opinion in which he found the Texas law
"uncommonly silly." He wrote that: "Punishing someone for expressing his sexual preference through noncommercial consensual
conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources." 7 He said that if
he were a Texas legislator, he would vote to repeal the law. However, he could not agree to strike it down as unconstitutional because he found no
guarantee of privacy contained within the words of the U.S. Constitution.
The 2004-NOV presidential election:
It is generally acknowledged that the president will have the opportunity to nominate at three or four new justices during his 2004 to 2008 term. Chief
Justice William Rhenquist may be the first to be replaced. He is expected to resign shortly for health reasons.
President George W. Bush has indicated that he does not have a pro-life "litmus test" for his appointments to the Supreme Court. But he
has indicated that he will use Justices Scalia and Thomas as a model when selecting new nominees. Some observers feel that there is zero possibility that
the President would nominate a Justice who is pro-choice on abortion access. If another very conservative justice is approved by the Senate, Lawrence v.
Texas may well be overturned, allowing individual states to recriminalize any sexual behavior that the majority feels is immoral.
Most of the thirteen states whose sodomy laws were overturned in 2003 probably have these laws still on the books. A reversal at the Supreme Court
level would allow some of these existing state laws to be immediately enforceable.
John W. Whitehead, "Gay rights and wrongs," Razormouth,2003-MAY-13, at:
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.
"High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
"Due process," The Free Dictionary, at:
"Trop v. Dulles," U.S. Supreme Court, 1958-MAR-31, at:
Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
"States May Ban Abortion if Roe Overturned." EarthLink, 2004-OCT-05, at:
Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2005-MAR-13
Latest update: 2005-MAR-13
Author: B.A. Robinson