Five Years Later: Decriminalizing Gay People -- Another Reminder of the Importance of the Supreme Court

Judith E. Schaeffer
June 25, 2008

Many people probably don't recall much, if anything, about June 26, 2003, but I recall a great deal. That's because it's the day on which the Supreme Court issued one of its most important rulings in the area of individual rights and human dignity. In Lawrence v. Texas, a sharply divided Court struck down a Texas state law that prohibited consensual, private sex between adults of the same gender, a law that essentially made criminals out of gay men and lesbians. Five justices held that the law was an improper intrusion on the right to liberty guaranteed to everyone by the Constitution, effectively invalidating all state laws that invade the home to prohibit so-called sodomy.

Five years later, I can still recall vividly the absolute joy and elation that I felt learning that these pernicious laws were no more. The Court's ruling meant not only that these laws could no longer be used to intrude into a realm of personal conduct in which government has no place, but also that they could no longer be cited to deny gay people jobs or parti****tion in any other aspect of human endeavor on the ground of criminality.

Justice Kennedy's majority opinion was a ringing endor*****t of constitutional liberty. According to Justice Kennedy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

As news of the Court's decision unfolded, it was equally wonderful to learn that the five-justice majority had also overturned the Court's 1986 ruling in Bowers v. Hardwick, in which the Court, by a vote of 5-4, had upheld a Georgia anti-sodomy law under which Michael Hardwick had been arrested for having had sex in his own home with another man. Bowers was a strikingly anti-gay decision in substance and language and, like Plessy v. Ferguson, a low point in Supreme Court history and an instance of the Court's abject failure to protect the constitutional rights of minorities. Justice Kennedy, writing for the Court in Lawrence, soundly declared that Bowers "was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent."

One of my law school classmates was Michael Hardwick's original attorney. I accompanied her to the Supreme Court that day in March 1986 when Bowers was argued, and I commiserated with her when that terrible ruling came down several months later. She was the first person I called after learning that Bowers had been overturned, and we shared a long-delayed moment of joy.

And so June 26, 2003 is a day that I remember quite well. But as significant as the Lawrence ruling was, I am mindful that four justices did not join Justice Kennedy's majority opinion. Justice Sandra Day O'Connor, who was part of the majority in Bowers (truly a low point in her judicial career as well), declined to join the majority in overruling that decision. She agreed, however, that the Texas "sodomy" law was unconstitutional, but only because it treated same-sex and opposite-sex couples differently.

Three justices dissented outright from the ruling in Lawrence: then-Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Scalia and Thomas are still on the bench today. The late Chief Justice Rehnquist has been replaced by the equally ultraconservative John Roberts, while Justice O'Connor has been replaced by the extreme right-wing Samuel Alito.

Counting the numbers, then, it's very clear that the constitutional protection of the essential human dignity of gay men and lesbians is hanging by a slender thread on the Supreme Court. John McCain has praised Justice Scalia and has also promised to put more justices like Roberts and Alito on the Court, which should be a consideration for any voter who cares about gay rights and the future of the Supreme Court.

http://www.huffingtonpost.com/judith-e-schaeffer/five-y...crimin_b_109272.html

Of course, sodomy is still a part of the UCMJ, the Supreme Court decision notwithstanding. Oddly, the military has even tried to defend keeping it as a violation of the UCMJ -- although their reasons are a complete stretch -- actually, they give no reasons, other than to point out that the SC has always shown deference to the military in decision making.

So, that means that despite this landmark SC decision decriminalizing sodomy, that millions of active duty and reserve troops, and all retirees, continue to violate the UCMJ by engaging in oral or anal sex. And yes, that means married spouses engaging in these activities are violating the UCMJ, as well as unmarried heterosexual men and women and all homosexual men and women.

I'm sick of hearing about gay rights.
There is no such thing as gay rights.
Gay's just want special rights the rest of us don't have. They want protection above and beyond the law.
I'm all for equil rights, just can't stand special rights given to any group.

quote:

Originally posted by Bullhunter:
I'm sick of hearing about gay rights.
There is no such thing as gay rights.
Gay's just want special rights the rest of us don't have. They want protection above and beyond the law.
I'm all for equil rights, just can't stand special rights given to any group.

So, can you please list for me what "special" rights you are talking about? Don't be shy, please tell us.

Just to mention one.
The Hate crimes Law.
Get in a fight with someone and they get hurt but later they say they are gay then its a hate crime adding more years onto you sentenance.
I've seen on TV the media reporting some whites and blacks get in a fight and a black individual dies and all of a sudden its hate crime. I've see it the other way and a white individual dies but oh no that not a hate crime. Say thing, a straight individual can kill a guy individual and its a hate crime. Guy person does the same and its not a hate crime.

Another: Affirmative Action and quotas for minotries. Not who's the most qualified or scores the highest on a test.
Those are special protections for selected groups. Special rights. All it does is divide us more.

JUST BS LAW!

quote:

Originally posted by Bullhunter:
Just to mention one.
The Hate crimes Law.
Get in a fight with someone and they get hurt but later they say they are gay then its a hate crime adding more years onto you sentenance.
I've seen on TV the media reporting some whites and blacks get in a fight and a black individual dies and all of a sudden its hate crime. I've see it the other way and a white individual dies but oh no that not a hate crime. Say thing, a straight individual can kill a guy individual and its a hate crime. Guy person does the same and its not a hate crime.

Another: Affirmative Action and quotas for minotries. Not who's the most qualified or scores the highest on a test.
Those are special protections for selected groups. Special rights. All it does is divide us more.

JUST BS LAW!

Hate Crimes are very difficult to prove in most cases, and seldom meet legal muster. In order to use Hate Crime laws in a Court, you must prove that the attacker attempted to cause bodily injury to a person because of the actual or perceived religion, national origin, gender of the one being attacked.

An example would be a person blowing up a church on Sunday morning when the establishment is full of parishioners because he/she hates that religion. Or you drive by a known gay establishment and shoot at the folks when they are leaving or pitch a bomb into the establishment when there are patrons in the club.

One straight guy and one gay guy having a fist fight, and one dies afterward, will not be considered a hate crime unless the attacker started the fight because he/she hates homosexuals and intended to kill on the basis of this irrational hate. Matthew Shepard is a good example where two thugs attacked a homosexual and killed him simply because he was gay.

Crimes against people that are motivated by "hatred" of a persons skin color, religion, sexual orientation, etc, - are especially heinous because those that are hurt or killed did nothing to warrant the attack, or motivate the individual enough to cause the hatred which led to the attack.

Hate Crimes Laws have been on the books for 40 years, they protect race, color, religion, or national origin. Homosexuals are seeking that same protection that is already granted to others.

You may call it a "special right" but it is a "special right" that is already being enjoyed by many Americans in the United States, so either get rid of all special rights, or add homosexuals to the list. Equality...

Here's a link to the Hate Crime Law that would incorporate homosexuals into that list, make note of the last paragraph that insures Freedom of Speech is not infringed upon.

http://www.govtrack.us/congress/billtext.xpd?bill=h110-1592

I do not see the difference between a guy breaking into a home, raping and killing a mother and daughter or,
the same guy attacking another guy who is gay and killing him.
Murder is murder, cut and dried. Requires the death sentence.
Does not matter. Murder is murder. All this extra BS added as hate crime is special pandering to groups who think they are special.
We are either all equil or we are not. You can't have it both ways.

quote:

Originally posted by Bullhunter:
I do not see the difference between a guy breaking into a home, raping and killing a mother and daughter or,
the same guy attacking another guy who is gay and killing him.
Murder is murder, cut and dried. Requires the death sentence.
Does not matter. Murder is murder. All this extra BS added as hate crime is special pandering to groups who think they are special.
We are either all equil or we are not. You can't have it both ways.

You have a point, many folks (including many gays) do not see the need for such laws. The laws presently on the books should be sufficient, but, a Hate Crime is different in that it sends a message to a group of people that they are not welcome, and is similiar to terrorism in that it instills fear within a particular community (such as the gay community).

When a group of people are selected out of the whole, and then targeted with violence because of their religion, national origin, etc., That is a Hate Crime. The Mother and daughter most likely wasn't targeted "for hate" simply because she was a Mother who had a daughter, and the gay person may not have been targeted simply because he was gay.

If the assailant burned down 6 Christian churches, that would instill fear in the Christian community, and would be considered a hate crime. If an assailant targeted several gay bars, that would be a hate crime. In other words, it's a Hate Crime when a person or group target a select group of people for violence. You can murder a Christian or Homosexual without it being a Hate Crime, but if you murder them because of their religion or sexual orientation, bammmm -- Hate Crime. Why make it a Hate Crime?, because the crime instills fear within that group because the person or people targeted them specifically because of their religion, sexual orientation, national origin, etc...

Why have Hate Crimes Laws, because it sends a message to the perpetrators that they will be punished to the full extent of the law for committing violence based on intolerance and bigotry. Believe it or not, most people that commit Hate Crimes are not murderers or completely evil, they are usually young people around 18 to 25 years old - who think beating up or murdering homosexuals is not a bad thing because they've been taught that homosexuals are deviant perverts that deserve a beating and their over zealous beating ends up killing the unfortunate recipient. Which leads to why school children need to be taught tolerance so they can avoid the trappings of bigotry which could later-on put them in a jail cell.
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Hate Crime

Hate crime is the violence of intolerance and bigotry, intended to hurt and intimidate someone because of their race, ethnicity, national origin, religious, sexual orientation, or disability. The purveyors of hate use explosives, arson, weapons, vandalism, physical violence, and verbal threats of violence to instill fear in their victims, leaving them vulnerable to more attacks and feeling alienated, helpless, suspicious and fearful. Others may become frustrated and angry if they believe the local government and other groups in the community will not protect them. When perpetrators of hate are not prosecuted as criminals and their acts not publicly condemned, their crimes can weaken even those communities with the healthiest race relations.

Of all crimes, hate crimes are most likely to create or exacerbate tensions, which can trigger larger community-wide racial conflict, civil disturbances, and even riots. Hate crimes put cities and towns at-risk of serious social and economic consequences. The immediate costs of racial conflicts and civil disturbances are police, fire, and medical personnel overtime, injury or death, business and residential property loss, and damage to vehicles and equipment. Long-term recovery may be hindered by a decline in property values, which results in lower tax revenues, scarcity of funds for rebuilding, and increased insurance rates.

http://www.usdoj.gov/crs/pubs/crs_pub_hate_crime_bulletin_1201.htm


"Hate crimes are message crimes. They are different from other crimes in that the offender is sending a message to members of a certain group that they are unwelcome."

http://www.infoplease.com/spot/hatecrimes.html

Jim,
I just can't by that.
A crime is a crime.
Our legal system is a joke and the lawyers love it like that. They make millions protecting and defending the worst people in society.
It would be so simple if the law was that you commit a crime and cause a death then you forfit you life if proven guilty.
Walk into a bank, store, or bar and stick a shotgun in someone's face and they have a heart attack and die you killed them without pulling the trigger, the result of the crime is the same. Does not matter who died, what color they were, or who thier lover was.
We have way too many laws, criminals get into court and want plea bargins, we need better control in our courts, less laws, simpler and speedier court systems.

quote:

Originally posted by Bullhunter:
Jim,
I just can't by that.
A crime is a crime.
Our legal system is a joke and the lawyers love it like that. They make millions protecting and defending the worst people in society.
It would be so simple if the law was that you commit a crime and cause a death then you forfit you life if proven guilty.
Walk into a bank, store, or bar and stick a shotgun in someone's face and they have a heart attack and die you killed them without pulling the trigger, the result of the crime is the same. Does not matter who died, what color they were, or who thier lover was.
We have way too many laws, criminals get into court and want plea bargins, we need better control in our courts, less laws, simpler and speedier court systems.

I agree Bullhunter, but (smile), as a society becomes more populated - more laws are needed to keep them civil with each other. I sometimes think the animal kingdom got it right and we humans don't know what the devil we're doing.