Carved into the gleaming white marble atop the U.S. Supreme Court building in Washington, D.C. are the words “Equal justice under law.” The Court took a momentous step toward making that a reality for all gay and lesbian U.S. citizens when it threw out the remaining 13 state sodomy laws in the United States last Thursday, June 26. In a 6-3 decision in Lawrence vs. Texas, issued June 26, the Court took the highly unusual step of admitting that it made a mistake when it said in the 1986 Bowers vs. Hardwick ruling that states could regulate sodomy.

Gay groups were unanimous in hailing the ruling as “historic,” clear and broad in its embrace of GLBT citizens. Many believe the ruling will have significant implications for laws affecting virtually every other aspect of life for GLBT Americans.

The court, in striking down the Texas law, overturned the 1986 ruling that had upheld sodomy laws on moral grounds. The law allowed police to arrest gays for oral or anal sex, while the same conduct was legal for heterosexuals.

Justice Anthony Kennedy, writing for the majority, strongly took the earlier Court to task for their ruling in Bowers on both matters of fact and of law. In criticizing their reading of history, he wrote, “Far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th Century.” Kennedy turned to the language of Justice John Paul Stevens’ dissenting opinion in Bowers to make the case that a political majority’s distaste of a particular act is not sufficient grounds to prohibit it, and that sexual intimacy for all is indeed protected under the Fourteenth Amendment. In clear, blunt language he concluded, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers vs. Hardwick should be and now is overruled.”

Justice Sandra Day O’Connor was part of the 5-4 majority deciding Bowers. She chose to overrule it, though not as the majority did on due process grounds. She found that it unconstitutionally violated equal protection. O’Connor also did not join in reversing the court’s 1986 ruling in Bowers vs. Hardwick.

Justice Antonin Scalia wrote a scathing dissent. He was joined by Chief Justice William Rehnquist and Justice Clarence Thomas. He took the highly unusual step of reading portions of it from the bench. Scalia lamented that the decision “effectively decrees the end of all morals legislation — if, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest.” He accused the majority of promoting “the so-called homosexual agenda …[of] eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

And he warned, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

In addition, Scalia wrote that the ruling also threatens laws banning bestiality, bigamy and incest

A number of politicians and human rights groups condemned Scalia’s words, including Democratic presidential candidate Howard Dean, who said Scalia’s “increasingly shrill opinions have become an embarrassment to the Supreme Court…. Scalia’s intemperate dissent in this case shows why he should never have been appointed to the Supreme Court in the first place and why he is not fit to serve as Chief Justice should a vacancy occur.”

Justice Thomas, while joining in the dissent because he does not believe there is a right to privacy within the Constitution, took the unusual step of issuing a separate one-page dissent. He called the Texas law “uncommonly silly” and said that if he were a member of the Texas legislature, he would vote to repeal the law because it “does not appear to be a worthy way to expend valuable law enforcement resources.”

Matt Coles, director of the Lesbian and Gay Rights Project at the American Civil Liberties Union, said the court’s decision was broader than expected and will affect other social issues involving GLBT rights.

Coles said the ruling should also “go a long way to make us feel a lot more comfortable about the continuing vitality of a woman’s right to choose.”

Of the 13 states with sodomy laws, four — Texas, Kansas, Oklahoma and Missouri — prohibit oral and anal sex between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

The June 26 ruling invalidates all of those laws, lawyers said.

The two men at the heart of the case, John Geddes Lawrence and Tyron Garner, were each fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.

The case began when a neighbor with a grudge faked a distress call to police, telling them that a man was “going crazy” in Lawrence’s apartment. Police went to the apartment, pushed open the door and found the two men.

“We never chose to be public figures or to take on the spotlight. We also never thought we could be arrested this way,” said Lawrence. “We are glad this ruling not only lets us get on with our lives, but opens the door for all gay people to be treated equally.”

In a gesture of gratitude for the Supreme Court’s decision, GLBT activists in San Francisco lowered a huge rainbow flag that flies over the Castro District and hoisted the Stars and Stripes in its place.

“The symbolism of the nation’s highest court recognizing the validity of gay relationships is just really important for the community because it shows we live in a society where we can create change with laws, not violence,” said Geoffrey Kors, director of Equality California.

While gays and lesbians celebrated, conservatives blasted the high court’s ruling as a move that would destroy the country’s morality.

Religious broadcaster Pat Robertson condemned the decision, saying it would effectively take the nation “down into a moral sewer.”

White House spokesperson Ari Fleischer declined to comment on the ruling, noting that the Bush administration did not file a brief in this case, stating, “This is now a state matter.”

GLBT groups maintain the high court’s ruling will help protect gays and lesbians from discrimination in other areas as well.

“For years, whenever we have sought equality, we’ve been answered both in courts of law and in the court of public opinion with the claim that we are not entitled to equality because our love makes us criminals,” said James Esseks, litigation director of the ACLU’s Lesbian and Gay Rights Project. “That argument — which has been a serious block to progress — is now a dead letter.”

Several hundred New Yorkers, some carrying signs reading “Free to be Gay in all 50 states,” rallied June 26 in Manhattan’s Greenwich Village.

“I’m ecstatic. I’m thrilled,” said Charley Beal, 45. “It’s the first time that the Supreme Court has ever positively voted in favor of gays.”

The rally took place near the site of the Stonewall Riots of 1969, when patrons of a gay bar in the neighborhood fought back against a police raid.

Ruth Harlow, who argued the case before the Supreme Court as legal director of Lambda Legal, said the court was merely “catching up” with public opinion.

The Supreme Court was criticized by civil rights groups 17 years ago when it upheld Georgia’s sodomy law. Georgians later repealed that law, and now, “82 percent of Americans have already expressed the view that these kinds of laws are inappropriate,” she said.

Harlow said the ruling “changes the landscape, sending a signal to, not only courts, but also to legislatures that we deserve equality and full respect.” It is “not a replacement” for measures such as the Employment Non-Discrimination ACT (ENDA), she said. Legislation is still necessary to protect against private discrimination in employment and other areas. Harlow noted that in his dissent in the Romer (Colorado’s Amendment 2) decision, Scalia “predicted that Bowers would not stand, and he was correct.” In his Lawrence dissent, Scalia predicted that gay marriage was the logical outcome of the majority decision.

Harlow called Scalia “a great predictor of future developments” and hoped that this too would come true.

Reaction was especially strong in those states with sodomy laws still on the books.

In Kansas’ case, in addition to invalidating the state’s anti-sodomy statute, the U.S. Supreme Court returned to Kansas appellate courts a case that challenges the state’s differing treatment of sex offenders whose acts involved gay sex and those whose did not.

“God have mercy on America,” said John Giles, president of the Christian Coalition of Alabama, who agreed with Justice Anthony Kennedy that personal privacy should be protected, but said he worries that the decision will further a national campaign to legalize marriage between gays.

“It could have been a historic day just for Texas, but it’s a historic day, period,” said Paul Scott, executive director of the Dallas-based John Thomas Gay and Lesbian Community Resource Center.

The ruling “gives us the momentum to pursue our agenda,” added Greg Polzin, executive director of the Arizona Human Rights Fund, a Phoenix-based GLBT rights organization.

“These are incremental changes over time, but it’s very significant for where we are going,” said Tempe Mayor Neil Giuliano, one of Arizona’s highest-profile gay elected officials.

“The Court has moved to heal a great wound that was imposed by the Court almost two decades ago,” said Elizabeth Birch, executive director of the Human Rights Campaign. “It will shift dramatically the discourse on gay people and about gay life for years to come.”

Birch thanked Lambda for leading the effort and she thanked the plaintiffs John Lawrence and Tyron Garner “for giving up their privacy so that we might have ours.”

“There is no realm of lesbian or gay life — public or private — that has not been devastated by the existence of laws that criminalize adult, consensual, private sexual activity,” said Kate Kendell, executive director of the National Center for Lesbian Rights. Sodomy laws “have been used to justify discrimination in employment, adoption, custody, immigration, and virtually every other area of daily life,” she said. “This ruling will forever change the lives of every lesbian and gay man in this country.”

“The fight for equality is increasingly shifting to the courts,” added Dave Noble, executive director of National Stonewall Democrats. “This ruling underscores the need to promote mainstream judicial nominations, since such life-long appointees will make decisions on LGBT rights for the next 30 to 40 years.”

Military implications

The Supreme Court decision is likely to ripple through the antigay military policy of “Don’t Ask, Don’t Tell.” C. Dixon Osburn, executive director of the Servicemembers Legal Defense Network (SLDN) said. “It may remove a significant roadblock in repealing the federal sodomy statute and the military’s ban” on GLBT people serving openly in the military.

In 2002, a panel of experts on military law recommended repeal of federal sodomy statutes under the Universal Code of Military Justice. Osburn said that SLDN “will look closely at [the June 26] ruling and work with other legal experts to determine what role it may have in tearing down the walls to equality in our armed forces.” James Garland, a law professor at Hofstra University, said, “It raises serious constitutional questions about the military’s ability to regulate private sexual conduct off-duty that cannot be shown to affect one’s military performance.” However, the Court traditionally has given great deference to the military and may continue to do so on this issue.

Associated Press reports added to this story