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social sciences

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Sodomy Laws and Sodomy Law Reform  
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In lengthy dissenting opinions, Justice Harry Blackmun argued that the Court's privacy jurisprudence clearly applied to this case, and Justice John Paul Stevens insisted that the use of sodomy laws to prosecute homosexuals for conduct that would be considered Constitutionally sheltered when committed by opposite-sex couples violated the Equal Protection Clause as well as the Due Process Clause as an improper restriction on personal liberty. Casting the decisive fifth vote to uphold the statute, Justice Lewis F. Powell observed that sodomy laws tended not to be enforced, but if somebody were actually to suffer a significant prison sentence for engaging in consensual sodomy, he would find a serious violation of the 8th Amendment's ban on "cruel and unusual punishment."

Chastened by the defeat in Bowers, the gay rights legal movement turned its attention to state courts, and over the next fifteen years achieved a string of important victories as state courts either struck down sodomy laws or indicated that they would not be enforceable against consenting adults whose conduct was private and non-commercial, using state constitutional principles.

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Although there were a few losses in the state courts, most of the lawsuits ended in victory for the gay challengers of the laws, and a few states during the 1990s legislatively repealed sodomy laws, so that by 2003, barely a dozen states still retained actively enforceable sodomy laws on their statute books, and in only four states were those laws solely targeted at same-sex conduct.

Romer v. Evans

By this time, the gay rights legal movement was ready for another crack at the Supreme Court. In framing challenges to the sodomy laws in Arkansas, Puerto Rico, and Texas, such organizations as Lambda Legal Defense Fund and the ACLU Lesbian and Gay Rights Project determined that the time was right, not least because of the Supreme Court's 1996 ruling in Romer v. Evans, 517 U.S. 620, the first major substantive gay rights victory in a Supreme Court case in more than a generation.

In Romer, the Court voted 6-3 to declare unconstitutional an anti-gay amendment to the Colorado Constitution that had been approved in a referendum of Colorado voters. Known as Amendment 2, it provided that neither the state nor any of its subdivisions could recognize a discrimination claim based on a person's homosexual or bisexual orientation or conduct.

Writing for the Court, Justice Anthony M. Kennedy found that Amendment 2 violated the Equal Protection Clause in a fundamental way, making lesbians and gay men unequal to the other citizens of Colorado for no particular reason other than "animus" against them. In a virulent dissenting opinion, Justice Antonin Scalia contended that this ruling was inconsistent with Bowers v. Hardwick. Gay and lesbian rights legal groups agreed with Scalia's assessment of inconsistency and concluded that a majority of the court might be ready, in an appropriate case, to overrule Bowers.

Glbtq advocates also drew comfort from the broad language about the liberty protected by the Due Process Clause in the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833.

Lawrence v. Texas

The vehicle for bringing the issue to the Supreme Court was Lawrence v. Texas, 123 S. Ct. 2472 (2003), in which the Houston district attorney undertook an actual prosecution of two gay men for engaging in "homosexual sodomy" in a private house, who had been arrested by police officers responding to a false report.

This time, five members of the Court agreed that the concept of protected liberty under the Due Process Clause of the 14th Amendment is broad enough to question the constitutionality of a law that penalizes consensual private sexual activity between adults. Writing for the Court, Justice Kennedy found that Texas had advanced no justification for this law other than moral disapproval, and that this was insufficient.

Concurring separately, Justice Sandra Day O'Connor agreed that the law should fall, but on Equal Protection grounds, because Texas was one of a handful of states that had removed criminal sanctions for heterosexual sodomy while retaining them for homosexual sodomy. She would not accept the state's contention that moral disapproval of homosexuality was a legitimate reason to forbid certain conduct to same-sex partners when it was allowed for opposite-sex partners.

Once again dissenting vehemently, Justice Scalia argued that the Court's rationale spelled the end for all sex crimes laws whose justification was moral disapproval.

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