Justice Anthony Kennedy’s decision in Lawrence v. Texas found states can’t criminalise gay sex, in part because sodomy statutes like the one in Texas stigmatizes homosexuality.
The 2003 decision is a milestone for gay rights, and legal experts and gay rights activists have scrutinized it to look for signs how Kennedy (the court’s key swing vote) will rule on gay marriage.
Indeed, Kennedy’s Lawrence opinion invokes the notion of liberty to argue that sodomy laws are unconstitutional. Many gay marriage activists often use words like “freedom” and “liberty” (often to make gay marriage more palatable to Republicans).
Here’s the passage on freedom from Kennedy’s Lawrence opinion:
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives.
If laws impede on those liberties, Kennedy added, the Supreme Court can use the Constitution’s guarantee of freedom to overturn them. The framers of the Constitution “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”
(This logic may be used today to strike down the defence of Marriage Act, a Clinton-era law that says the federal government didn’t recognise marriages that were legal in certain states.)
The Lawrence opinion overturned its 1986 decision in Bowers v. Hardwick upholding Georgia’s anti-sodomy law. In that case, then-Chief Justice Warren Burger wrote in a concurring opinion that “there is no such thing as a fundamental right to homosexual sodomy.”
The chief went on to point out that Blackstone’s law dictionary had called sodomy “the infamous crime against nature.” Burger added, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
No matter how the court rules today, it is clear that the gay rights movement has come a long way in a short period of time.
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