It's not often you hear Supreme Court Justices treat their brethren with such scorn, or trash a recent decision as being dead wrong--or see lawyers weep as a ruling is read. But Thursday was an emotional day inside and outside the court, as preachers prayed and scholars marveled and gay-rights activists struggled to find the right words, since they were more used to slamming the court than saluting it.
Only 17 years ago, the court upheld Georgia's sodomy law in Bowers v. Hardwick; but last week the court dumped its own precedent, voting 6 to 3 to throw out a Texas law prohibiting private homosexual conduct. The Texas case arose in 1998 when a neighbor with a grudge called the Houston police to investigate what he claimed was a disturbance next door; the cops arrived to find John Geddes Lawrence and Tyron Garner in bed together and arrested them under Texas' antisodomy laws. The men were each fined $200 and spent the night in jail. Once the Supreme Court agreed to hear the case, hopes rose among gay activists that maybe some of the Justices were ready to reconsider how far the right to privacy extends.
Lawrence v. Texas turns an issue that states have historically decided for themselves into a basic constitutional tenet. Even supporters expressed surprise at Justice Anthony Kennedy's language, given this court's allergy to broad social pronouncements. "The petitioners are entitled to respect for their private lives," Kennedy argued. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." The court's majority based its landmark decision on a belief in "a realm of personal liberty which the government may not enter." To opponents, it meant that any law based mainly on moral norms was now vulnerable; to supporters, it meant that the court had recognized the legitimacy of homosexual relations, so any law that discriminates against gays could be ripe for reversal. And with that, the latest battle over liberty, morality and privacy begins.
Gay-rights activists declared Lawrence a victory on the scale of the Brown v. Board of Education decision, which desegregated schools in 1954. Cooler heads noted that in immediate, practical terms the ruling will have nothing like the impact of Brown, which fundamentally changed how American families live and learn. Only 13 states still have sodomy laws on their books, and they are seldom enforced.
But in cases like this the symbolism, over time, can shape the substance, and so there were people on both sides eager to rally their supporters by declaring the ruling a watershed. Even if the sodomy laws weren't often enforced, says Harvard law professor Laurence Tribe, who lost the Bowers case and was present in court last week, "the existence of these laws was an excuse for harassment and discrimination, and a labeling of a whole group of people for whom this is the primary form of physical sexual intimacy as deviant and criminal. A lot of people feel that that yoke has been lifted."