First Published: June 2003
       This is an OutUK Archive Item and so some of the links and information may be out of date.

In an historic decision with wide-ranging implications, the U.S. Supreme Court today struck down a Texas law that makes many sexual acts a crime, but only for gay people. The decision overrules the court’s 1986 decision in Bowers v. Hardwick, which was widely condemned for treating gay people as second-class citizens.

“This decision will affect virtually every important legal and social question involving lesbians and gay men,” said James Esseks, Litigation Director of the American Civil Liberties Union Lesbian and Gay Rights Project.

“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. That argument – which has been a serious block to progress -- is now a dead letter.”

Esseks added, “from now on, cases and political debates about employment, custody and the treatment of same-sex couples should be about merit, not about who you love.”

ACLU's Michael Adams
Gays in New York City celebrate the U.S. Supreme Court's June 26 ruling overturning the 13 remaining state laws that banned gay sex. The ACLU's Michael Adams addresses the crowd. Photo by Andrés Duque/Wockner News.
In 1998 two gay men John Lawrence and Tyron Garner pleaded no contest to breaking the Texas sodomy law, after police broke into Lawrence's home in search of an armed intruder and discovered the two men engaged in intercourse. Both men were arrested and imprisoned overnight. They were fined $200 each and forced to pay court costs. The convictions barred them from holding several types of jobs in Texas and would have required them to register as sex offenders should they have moved to any of several other states.

In sweeping language, the Court said the Constitution protects the right of gay people to form intimate relationships and “retain their dignity as free persons.” Gay people, the Court said, have the same right to “define one’s concept of existence, of meaning, or the universe, and of the mystery of human life,” that heterosexuals do. The earlier Bowers decision, the Court said, “demeans the lives of homosexual persons.”

Since 1986, lower courts have relied on Bowers v. Hardwick to take away or limit custody to gay parents and to uphold firing or refusing to hire gay people. Bowers has frequently been invoked in legislative debates as a reason not to protect gay people from discrimination.

“With this decision, the Court has finally recognized that we are part of the American family. Now it’s time for the rest of society to do the same,” Esseks said. “Our civil rights laws need to make the workplace fair, our schools safe, and to give basic respect to the relationships at the core of our lives--with our partners and our children. By acknowledging that we are not criminals, this decision will make it far easier for us to get society to change.”

In an 18-page opinion, the Court held that the Texas law violates the fundamental right to privacy protected by the U.S. Constitution. The decision means that similar laws against sexual intimacy in the 12 other states that have them are also invalid. These include laws in Kansas, Missouri and Oklahoma that apply only to gay people as well as laws in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah, which make sodomy a crime for all people.

“Justice Brandeis said over 75 years ago that the ‘right to be let alone’ is the right most valued by civilized people, and most Americans agree,” said Anthony D. Romero, Executive Director of the ACLU. “This decision is all the more important because it comes at a time when the right to privacy is under one of the greatest assaults it has ever faced.”


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