Jun 20, 2003  |  By: CHRIS CRAIN  | COMMENTS     

In sweeping language, the Supreme Court struck down the Texas sodomy law, and with it similar laws in 12 other states, as violating gay Americans' right to due process, but the debate among the justices was far broader, and in many ways set the stage for the court to address the issue of marriage, the next looming battle in the "culture wars," in Justice Antonin Scalia's parlance.

Even on the issue of sodomy laws, the justices were expansive in their reasoning. The Supreme Court typically decides only the question before it, but the majority opinion in Lawrence vs. Texas went further than it needed to, tackling not just laws like the one in Texas and three other states that criminalize only homosexual sodomy. Instead, the court reached out to effectively rule unconstitutional the sodomy laws of nine other states — including Virginia — that apply to homosexual and heterosexual couplings.

The case was decided 6-3, but only a bare majority of five were willing to take the extra step of effectively striking down all 13 sodomy statutes as contrary to the Constitution's Due Process Clause. In doing so, these five justices overruled the court's 1986 decision in Bowers vs. Hardwick, which upheld Georgia's general sodomy law.

The sixth justice in the majority, Sandra Day O'Connor, voted with the majority in Bowers and was unwilling to revisit her thinking in that case. Instead, she agreed that the Texas law was unconstitutional, but limited her analysis to the fact that the law applies only to homosexual and not heterosexual conduct. That distinction violates the Equal Protection Clause, which like the Due Process Clause is contained in the 14th Amendment to the Constitution.

The other five justices in the majority acknowledged that the equal protection challenge "is a tenable argument," but they nonetheless went on to overrule Bowers and face the broader question of the government's ability to legislate sexual morality.

Justice Anthony Kennedy wrote for the majority, "Were we to hold the statute invalid under the Equal Protection Clause" as O'Connor suggested, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

The five-justice majority answered that question loud and clear: "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." Private and consensual sexual conduct between adults — even homosexual adults — qualifies as protected "intimate conduct," the court concluded, and the government cannot regulate it.

The impact of that ruling could be far-reaching. In his dissent, Justice Scalia cited a number of laws that may collapse in its wake: those prohibiting the sale of sex toys, adultery, fornication (sex outside marriage), adult incest, public indecency, bigamy, masturbation, bestiality, obscenity and same-sex marriage.

But the majority opinion was not simply a treatise on how individual freedom to engage in sexual acts must not be infringed upon by the government. Although the five-justice majority was not deciding the case based on the fact that the Texas sodomy law was limited to homosexual conduct, Justice Kennedy's opinion dealt directly with how application of the law was used to discriminate against gay men and lesbians. (Though it is noteworthy that "homosexual" remains the preferred descriptor for gays at the highest court in the land.)

"When homosexual conduct is made criminal by the law of the state," wrote Justice Kennedy, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres."

The Lawrence case, according to Justice Kennedy, "involves two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The [two men] are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

Four votes against marriage?
Behind the fight over sodomy laws and whether to overrule Bowers vs. Hardwick, however, all nine justices were aware that this week's opinions set the stage for a far more cataclysmic clash: the constitutionality of limiting marriage to opposite-sex couples.

The five-justice majority took pains to make clear that the Lawrence case "does not involve whether the government must give formal recognition to any relationship ...