Friday, June 26, 2009

Today in Gay History


June 26, 2003

In a sweeping decision, the U.S. Supreme Court struck down the Texas anti-sodomy law in Lawrence v. Texas by a 6-3 vote, reversing the 1986 decision in Bowers v. Hardwick.

That earlier 1986 decision,had held that "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization." Kennedy's citation of European law was in part a response to this blanket citation of the values of "Western civilization."

The Court concluded that, "Bowers 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."

The main majority opinion in Lawrence was written by Justice Anthony Kennedy, an appointee of Ronald Reagan. Kennedy's citation of European law was in part a response to the blanket citation of the values of "Western civilization" which Chief Justice Burger had used as a rationale in the earlier Bowers case. The conservative right wing punditocracy went CRAZY over this citing of European examples. They were not cited as controlling authority, but nonetheless the wackos went berserko over this part of the decision.

Kennedy's majority opinion in Lawrence was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. The opinion held that the Texas statute violated the Due Process Clause of the 14th Amendment. Justice Sandra Day O'Connor concurred, but stated a different rationale in her concurring opinion: the broader vision that the statute violated the Equal Protection Clause. Of course, Rendquist, Scalia and Thomas dissented.

The legal and historical significance of this decision for LGBTQ rights generally, probably cannot be overstated. No less an authority than preeminent Constitutional scholar, Professor Lawrence Tribe has written that Lawrence "may well be remembered as the Brown v. Board of gay and lesbian America."

Rendquist is still dead, replaced by Neo Federalist John Roberts. O'Connor is still retired and replaced by Samuel Alito, whose judicial expressions have been reactionary at best, in contrast to the moderation of O'Connor. If the case were heard again in 2009, the decision would undoubtedly be only 5-4 instead of 6-3.

Two steps forward, one step back.


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