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From Supreme Court AP

Ruling on Gay Sex May Affect Other Issues


By GINA HOLLAND, Associated Press Writer

WASHINGTON - The Supreme Court's ruling striking down bans on gay sex also strengthens the constitutional underpinnings for legal abortion and other socially divisive issues, some legal experts say.

The court said Thursday that what gay men and women do in the privacy of their bedrooms is their business and not the government's, a historic civil rights ruling that will likely be used to challenge other bans involving private conduct.

The decision in many respects deals with the same issues as the court's 30-year-old Roe v. Wade ruling that provided for legal abortions. Emory University law professor David Garrow said the ruling "strengthens and enshrines" the court's thinking in the abortion case.

The case involving gay sex was in the final batch of rulings handed down by the Supreme Court this term. The justices take a three-month summer break each year. Justices in the past have chosen the last day to announce if they plan to retire, but no one did so Thursday.

Also this week the court upheld the use of affirmative action in cases involving college admissions policies at the University of Michigan.

The court, in striking down a Texas law that made homosexual sex a crime, overturned an earlier ruling that had upheld sodomy laws on moral grounds. The law allowed police to arrest gays for oral or anal sex, conduct that would be legal for heterosexuals.

"The scale and footprint of this far swamps the Michigan duo (affirmative action rulings) in long-term historical stature," Garrow said.

Justices used strikingly broad and contrite language in the 6-3 decision.

The Constitution's framers "knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress," Justice Anthony M. Kennedy wrote in the majority opinion.

Two gay men arrested in Texas after police walked in on them having sex "are entitled to respect for their private lives," Kennedy wrote. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

In a lengthy, strongly worded dissent, the three most conservative justices said the ruling was a huge mistake that showed the court had been co-opted by the "so-called homosexual agenda."

"The court has taken sides in the culture war," Justice Antonin Scalia wrote for himself and Chief Justice William H. Rehnquist and Justice Clarence Thomas, suggesting the ruling would invite laws allowing same-sex marriages.

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 gay rights.

The ruling also, he said, "should go a long way to make us feel a lot more comfortable about the continuing vitality of a woman's right to choose."

Houston District Attorney Charles A. Rosenthal Jr., who argued in favor of the law before the high court, called the ruling a major departure from earlier court statements.

"I am disappointed that the Supreme Court (majority) did not allow the people of the state of Texas, through their elected legislators, to determine moral standards of governance for this state."

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.

Thursday's ruling invalidates all of those laws, lawyers said.

Garrow said it also weakens the reasoning used by the Supreme Court in ruling in 1997 that terminally ill people do not have a constitutional right to doctor-assisted suicide.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full.

Justice Sandra Day O'Connor agreed with the outcome of the case but would have decided it on different constitutional grounds. She also did not join in reversing the court's 1986 ruling on the same subject.

The court "has largely signed on to the so-called homosexual agenda," Scalia wrote for the dissenters.

Although the majority opinion said the case did not "involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," Scalia said the ruling could open the way to laws allowing gay marriage.

"This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples," Scalia wrote.

The ruling also threatens laws banning bestiality, bigamy and incest, he wrote.

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.

"This ruling lets us get on with our lives and it opens the door for gay people all over the country," Lawrence said Thursday.

The case is Lawrence v. Texas, 02-102.