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Sodomy law struck down; Supreme Court
has embraced ‘agenda,’ dissenters say


WASHINGTON (BP)–The U.S. Supreme Court struck down a state ban on same-sex sexual relations June 26, overturning one of its own recent decisions and handing the homosexual rights movement an important victory.

By a 6-3 vote, the high court held as unconstitutional a Texas law that prohibited homosexual sodomy, asserting that the “liberty protected by the Constitution allows homosexual persons the right to make” private sexual choices.

In a scathing dissent, however, Associate Justice Antonin Scalia said the justices had “taken sides in the culture war” and warned the court’s reasoning could be used to validate homosexual marriage.

Opponents of homosexual rights believe the ruling could further the attempt to legalize workplace and housing rights on the basis of homosexuality, as well as homosexual adoptions and same-sex “marriage.” They feared the court would strike down the Texas law after observing oral arguments in the case in March, but it remained possible the justices could do so without revisiting their 1986 opinion in support of a Georgia sodomy law. In that decision, Bowers v. Hardwick, the court ruled 5-4 there is no fundamental right in the Constitution for homosexuals to participate in sodomy.

The majority, however, overruled that opinion. “Bowers was not correct when it was decided, and it is not correct today,” Associate Justice Anthony Kennedy wrote in the court’s opinion. “Its continuance as precedent demeans the lives of homosexual persons. It ought not to remain binding precedent.”

Rulings by the high court in the 1960s and 1970s — including the Roe v. Wade opinion legalizing abortion — recognized a right to privacy, Kennedy wrote. Homosexuals are “entitled to respect for their privates lives,” he wrote. “The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”


States increasingly have repealed their sodomy laws, and so have other countries, Kennedy wrote in support of the ruling. Only 13 states have laws against sodomy, four against same-sex acts only and nine others against heterosexual or homosexual sodomy.

Scalia, however, said in his dissent the majority never describes “homosexual sodomy as a ‘fundamental right’ or a ‘fundamental liberty interest.'”

“If, as the court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest,” laws against “fornication, bigamy, adultery, adult incest, bestiality and obscenity” cannot survive the justices’ basis in their ruling, Scalia wrote.

“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,” said Scalia, who read his opinion from the bench, a sign of a particularly strong dissent. “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution.'”

The ruling “is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda,” he wrote.

Pro-family advocates decried the decision.

The opinion “rewrote the U.S. Constitution and 3,000 years of legal history,” the Alliance Defense Fund said in a written statement.

R. Albert Mohler Jr., president of Southern Baptist Theological Seminary in Louisville, Ky., said the opinion “enshrines an absolute right to virtually any consensual sexual behavior involving adults.”

“The homosexual agenda has won a great victory in this decision,” Mohler said. “In fact, it is more than they could have hoped for. This decision is about far more than homosexuality. The logic of this decision leads straight to the legalization of homosexual marriage and virtually any other form of family imaginable.

“Those who believe that sexual morality is about more than personal preference will look to this decision as a tragic turning point in our nation’s culture war. Those prophetic voices warning of a judicial usurpation of politics can at least say that they warned us.”

Russell D. Moore, executive director of the Carl F.H. Henry Institute for Evangelical Engagement at Southern Seminary, said the court overstepped its bounds, deciding what should be left up to state legislators.

“Most disturbing, however, is the Court’s embrace of ‘gay rights’ as a civil liberty protected under the Fourteenth Amendment,” Moore said in a release. “One can almost imagine Abraham Lincoln’s reaction to such a reading of the Constitution. This is the kind of wild judicial activism that gave us Roe v. Wade and dozens of other constitutionally dubious decisions. It is unclear exactly where the Court’s use of ‘privacy’ rights will lead, but this decision may well be a bad omen of things yet to come.”

Sandy Rios, president of Concerned Women for America, also criticized the ruling.

“No doubt, homosexual activists will try to bootstrap this decision into a mandate for same-sex marriage,” she said. “Any attempt to equate sexual perversion with the institution that is the very foundation of society is as baseless as this ruling.”

Liberty Counsel President Matt Staver said in a written statement, “Today’s decision has awakened a sleeping giant and will galvanize and reinvigorate the majority of Americans who believe in traditional marriage but have ignored the radical agenda of the same-sex marriage movement. The goal of the radical homosexual agenda is to eliminate any and all laws regulating consensual sexual conduct. This would mean the elimination of laws banning polygamy, as well as those that ban sex between adults and minors.”

Proponents of homosexual rights, however, hailed the ruling.

“This is an historic day for fair-minded Americans everywhere,” said Human Rights Campaign Executive Director Elizabeth Birch in a written release. “We are elated and gratified that the Supreme Court, in its wisdom, has seen discriminatory, state sodomy laws for what they are — divisive, mean-spirited laws that were designed to single out and marginalize an entire group of Americans for unequal treatment.”

Ralph Neas, president of People for the American Way, said in a written statement, “This is a great day in the history of the American people’s struggle to make liberty and justice for all a reality. This decision has not eliminated all the barriers to full equality for gay Americans, but it takes a major step towards dismantling those barriers.”

Joining Kennedy in the judgment were Associate Justices John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg and Stephen Breyer. O’Connor wrote a concurring opinion disagreeing with the majority’s decision to overturn Bowers. Chief Justice William Rehnquist and Clarence Thomas joined Scalia in the dissent.

The case, Lawrence v. Texas, began in 1998 when Houston police entered an apartment in response to what turned out to be a false report of an armed intruder and found John Lawrence and Tyron Garner having sexual relations. The men were arrested and fined $200 apiece under the Texas Homosexual Conduct Law.

Lawrence and Garner challenged the 1973 law, which proscribed “deviate sexual intercourse” between same-sex couples. They contended it violated their right to privacy and equal treatment.

A Texas appeals court upheld the law. In relying in part on the Supreme Court’s Bowers opinion, the Texas court ruled that there was no right to homosexual sex and the state legislature approved the law because of its rational belief homosexuality is immoral.

Among the organizations filing friend-of-the-court briefs in support of the homosexual petitioners was the Alliance of Baptists. The Alliance was started in 1987 in response to the conservative resurgence in the Southern Baptist Convention.

Others filing on the same side were the American Bar Association, ACLU, American Psychological Association, libertarian groups such as the Cato Institute and Institute for Justice, and homosexual rights groups such as the Human Rights Campaign and Log Cabin Republicans.

Supporters of the law filing briefs included the American Center for Law and Justice, American Family Association, Center for Marriage Law, Concerned Women for America and Liberty Counsel, as well as the states of Alabama, South Carolina and Utah.

In addition to Texas, the states still with sodomy laws were Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. Of those, Kansas, Missouri, Oklahoma and Texas prohibited only homosexual sodomy.