The Supreme Court's Decision That Sodomy Is Legal May Be a Good One. but Is It Good Law? It Seems to Say That Any Behaviour Is Now Acceptable So Long as It Is Performed in Private. (America)

By Stephen, Andrew | New Statesman (1996), July 7, 2003 | Go to article overview

The Supreme Court's Decision That Sodomy Is Legal May Be a Good One. but Is It Good Law? It Seems to Say That Any Behaviour Is Now Acceptable So Long as It Is Performed in Private. (America)


Stephen, Andrew, New Statesman (1996)


Help! Ring the alarm bells! Bring out the smelling salts! Americans have been absorbing the fact that sodomy in Texas -- yes, sodomy, to say nothing of oral sex -- has been found by the United States Supreme Court to be legal. In a series of highly surprising decisions taken just before they went off for the summer, the nine justices found not only that Texas laws against homosexuals were unconstitutional, but also that affirmative action policies aimed to promote racial diversity in colleges and universities are lawful and must continue for the next 25 years. Third, they ruled that a prisoner awaiting capital punishment for murder should have his conviction overturned because he had received demonstrably poor legal help (in Texas, defence lawyers have been found to be asleep while their clients were being found guilty of murder -- which brought a grin from the then Governor Bush during one of the presidential debates).

All three decisions were surprising because the Supreme Court has a right-wing majority, but it is the issue of sodomy that has most aroused America. In four states (Texas, Kansas, Oklahoma and Missouri), sodomy and oral sex were hitherto outlawed between gays; in nine more (Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia), they were illegal between heterosexuals, too. But Justice Anthony Kennedy, not always of the progressive wing, wrote that men are entitled to respect for their private lives". Dissenting, Justice Antonin Scalia (Boy George's favourite member of the Supreme Court) called the ruling "the product of a law-profession culture that has largely signed on to the homosexual agenda". Now the question is being asked everywhere, not least on the cover of Newsweek: "Is gay marriage next?"

The Texas case began when the neighbour of two men -- one black, one white, just to add to Texan sensibilities -- reported to the police that an armed man had entered their premises. Police burst in to find the (non-existent) gunman but instead discovered Tyron Garner and John Lawrence having sex. They were fined $200, but appealed all the way up to the Supreme Court. The majority ruling said that the law under which they were convicted "demeans the lives of homosexual persons", and that men (and women) were entitled to do what they wanted in the privacy of their own homes. The court added that a 1986 decision upholding a ban on gay sex was not correct when it was decided, and it is not correct today". …

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