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Old July 4th 03, 12:17 AM
Don Souter
Posts: n/a

Supreme Court strikes state sodomy laws, 6-3, recognizing "right to
privacy" for GLBT Americans

by Robert Raketty
Staff Writer

A surprising crowd of nearly 300 people filled the steps of the Federal
Courthouse in downtown Seattle on Thursday afternoon to celebrate what is
being hailed as perhaps the greatest victory in the history of the Gay
rights movement. On Thursday, the Supreme Court struck down a Texas law
that made certain types of sexual intimacy a crime, but only for Gay
people. Ruling that the law was an unconstitutional violation of privacy,
the court's 6-3 vote effectively overturns sodomy laws in 12 other states,
including Idaho.=20

Seattle's rally was one of at least 36 others held in cities across America=

to celebrate Thursday's landmark decision.

Gov. Gary Locke, State Rep. Ed Murray (D-43) and State Rep. Joe McDermott
(D-34) joined representatives of Lambda Legal and the Northwest Women's Law=

Center in offering their remarks at Thursday's rally downtown. The crowd
joined hands and sang "We Shall Overcome," swaying side-to-side while tears=

of joy flowed from the eyes of both men and women. In a final act of
solidarity, participants raised their hands to the sky and let out cheers
of elation.

Seattle's rally was organized by Jamie Pedersen, co-chair of the national
Lambda Legal Board of Directors and partner at the local law firm Preston
Gates & Ellis. "I felt it was important to take the time out of everything
else that I had going on over the last week to make this happen," he said.
"It would not have been possible without the great support from a lot of
different people. The folks at the ACLU of Washington and at the LGBT
Community Center were on board immediately. Quickly the Pride Foundation,
the Fairness Lobby and the Northwest Women's Law Center also all got on
board. There are a lot people who have offered their help in a lot of ways.=

It has been a marvelous coming together of our community. I am hopeful that=

we are getting to the point where we can put the struggles that we had
during the late '90's behind us and see some positive motion on the things
that we care about."

The much watched Lambda Legal case, Lawrence v. Texas, challenged Texas's
"Homosexual Conduct" law. The Supreme Court heard two constitutional issues=

in the case - whether the law violates citizens' right to privacy, and
whether it violates the Constitution's guarantee that all Americans be
treated equally under the law. Thursday's ruling focused largely on the
right to privacy according to legal experts.

Lawrence v. Texas involved John Lawrence and Tyron Garner who were arrested=

in 1998 by police officers who were investigating a false report of a
disturbance at Lawrence's Houston apartment. The two were found engaged in
consensual sex. They pleaded no contest to the charges, spent a night in
jail and each paid a $200 fine. 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. Lambda=

Legal asked the Supreme Court to hear the case and declare a violation of
privacy and equal protection.

"We are very pleased with this ruling. We never chose to be public figures
or to take on this fight. But we also never thought we could be arrested
this way," said Lawrence during a press call with the SGN. "We're glad not
only that this ruling lets us get on with our lives, but that it opens the
door for Gay people all across the country to be treated equally. We're
grateful to everyone who has respected our privacy over the last few years
- even if the State of Texas didn't respect it that night in 1998 - and we
thank everyone who saw how important this case was and fought for us. We
share this victory with gay people in all 50 states who are better off
today then they were yesterday thanks to this ruling."=20

In a separate 5-4 vote, the nation's highest court took the unusual step of=

overturning the infamous 1986 case, Bowers v. Hardwick, that upheld a
Georgia sodomy law and had declared that Gays had no constitutional right
to engage in sodomy, even in the privacy of their own homes.


Local Reaction=20

Lisa Stone, Executive Director of the Northwest Women's Law Center spoke to=

the SGN Thursday.=20

"The Northwest Women's Law Center regards LGBT issues as core to our
mission. We brought the lawsuit that struck down Montana's sodomy statute
in 7-0 decision of the Montana Supreme Court six years ago," she said. "It
is something we spend a lot of our energy and resources on. It's a
paramount issue for us. We were just delighted to be standing there with
Lambda, Reps. Murray and McDermott, and to raise our hands high in

"Several things are good about this opinion. The first of course is the
results. This invalidates all sodomy laws whether they apply only to Gay
couples or Gay and straight couples. It is a strong affirmation of the
right to privacy. That's great news for the LGBT community. That is great
news for the pro-choice community. The Court relied on lots of pro-choice
cases for its finding that privacy is unassailable in some respects. That
is well consigned from a court about which we have been quite concerned
with regard to choice as well as Lesbian and Gay rights.

"We are jubilant. The Court did today what it should have done 18 years ago=

in Bowers v. Hardwick. When people engage in behavior in the privacy of
their own home they are entitled to their privacy and cannot be interfered
with by the state. The Court certainly overruled Bowers, which is
wonderful, and criticized it in sweeping terms. This is better then we
hoped for I think."

Pedersen, who took part in a conference call with Lambda staff and members
of the board Thursday morning, offered an account of their reaction.

"'Elated' would be an understatement. There are a lot of people who are
crying for joy at this point. Folks who have been involved in this struggle=

since the disastrous loss in 1986, the two steps forward and one-step back
of Colorado's Amendment 2, and then the Boy Scouts case. It is a day with a=

lot of joy for everyone," he said. "This case overturns what was previously=

the most significant ruling ever for Gay and Lesbian people, which was
Bowers v. Hardwick. It says Bowers was wrong when it was decided and it is
wrong today and needed to be overruled. Although there have been a number
of cases that have come to the Supreme Court's attention that involve Gay
people, this is the most head-on addressing of the issue by the Supreme
Court. It is a landmark decision and arguably the most important one that
has come out for Gay and Lesbian civil rights."

He believes the ruling could have ramifications in deciding future cases
and begin a new chapter in the fight for LGBT equality.

"It should be of immediate use to us in a whole series of cases that have
to do with child custody and other family decisions as well as marriage,"
he said. "Lambda has an oral argument tomorrow in a New Jersey marriage
case on the state's motion to dismiss our case. The fact that the [Supreme]=

Court has gone out of its way to say that Gay people are protected by the
Constitution, that we need to be treated equally, is likely to be of
significant help to us."

Seattle attorney Lindsay Thompson agreed. He serves as president of the
Washington Lesbian & Gay Law Society, which filed an amicus brief in the

"It raises a question of due process as to whether a Gay couple, arrested
under this law, get a different legal outcome than if they were a straight
couple. It raises questions of equal protection under the federal
Constitution that says you can't craft laws or impose burdens on people
unequally without a rational reason for doing so. The Court looked at the
rationale for the Texas statute and said moral disapproval of a particular
group or the things they may do is not a rationale reason for making them
criminals," he said. "I think it is a singular victory. It is much broader
in its scope than I think a lot of people thought it would be. Justice
Scalia wrote one of his red-faced dissents and predicted one of the effects=

of the decision may be laying the groundwork for allowing same-sex marriage=

in the United States. I think he may be right. The difference of course is
that I think that is a good thing.

"It struck me as being very thorough. Although the majority goes to some
effort to say this is not a decision about marriage, the law that they rely=

on and the reasoning they use may require that they look at the issue of
same-sex marriage when the case comes up in the future. That is because
they have said you can't have laws in place that distinguish conduct
between two people in the privacy of their own home based on their gender.
So, you can't declare same-sex activity between two consenting adults to be=

criminal without also making it criminal if straight people do it. Then, it=

becomes harder to find a rational reason to limiting marriage to straight

The American Civil Liberties Union of Washington's Doug Honig called the
SGN Thursday to offer his response. He cited examples of the organization's=

work locally on behalf of the LGBT community and pledged to continue the

"It is a landmark decision and definitely a time for people to celebrate.
The highest court in the land has recognized that Gays and Lesbians are
entitled to the same level of respect in their intimate relations as
everybody else is. Support of equal treatment for everybody under law is at=

the core of what the ACLU stands for," he said. "We are very glad to join
with other organizations in celebrating this important decision. We think
it is especially important for the ACLU to be visible in this struggle for
Gay rights because we are an organization that has many Gay members, but a
majority of our members are heterosexual. It is really important having
heterosexual-identified organizations saying that Gay rights are an issue
for everybody.

"We need to recognize that everybody is a part of our society and if
anybody is being treated unequally then anybody else can be treated
unequally. There is an old political slogan, =D4An injury to one, is an
injury to all.' That is really true. If you can take rights from one group
of people, you can take away the rights of other groups of people. It is
trite but true that Gays are everywhere in our society. Heterosexual people=

have Gays as friends, as co-workers and as colleagues. To work and care for=

other people and have them not accorded the same dignity under law is
troubling. It is great to see steps forward like this decision.

"For our judicial system, it says that our courts are being educated to
understand that it is possible a past decision was wrong and it needed to
be changed. The ruling was very explicit in saying that the Bowers decision=

was wrongly decided. They are basically righting a wrong, a wrong the Court=

did in the previous decade, and choosing to right it. It is similar to what=

the Court did when it recognized the decision to uphold that Japanese
internment was wrong."


Local significance

Legal experts consider Washington State a "free state" - it does not have a=

law prohibiting consensual sex. Washington's sodomy law was repealed
through an act of the legislature in 1976.

"In Washington, the sodomy laws were repealed by the legislature in the
early 1970's. This state has been ahead of that curve for some time. In
that sense it doesn't have any real impact on day-to-day life here," said
Thompson. "What it does do is eliminate laws in roughly eleven states
around the country that would make it a criminal act for a [same-sex]
couple from Washington to have sex. The broad impact of the decision is
that it makes Gay and Lesbian people a little more equal than they were
yesterday compared to everybody else in the country."

"Idaho does have a sodomy law. It applied to both Gay and straight couples
and it is gone now thanks to this decision. So, our near neighbors to the
east have just as good news as our friends in Texas and the other states
with these laws today," said Stone. "It has never come to our attention in
this state and certainly in this city. But I certainly do know that there
are some counties in Washington where Lesbian, Gay, Bisexual and
Transgender people don't have full access to the law and don't feel like
full citizens because the judicial system or the prosecutors in their
communities. This should be a reminder to them that there is no separate
second status for LGBT folks and that everybody is equal in the eyes of the=

law. That is really important in some of rural counties in our state."

Rep. Murray lauded the Supreme Court decision in a written statement
Thursday. However, he expressed regret that the Court failed to go farther
in its decision.

"This is a landmark decision ensuring the right of privacy - not just for
Gays and Lesbians but for all Americans," he said. "It is unfortunate,
however, that the decision was silent as to whether Gays and Lesbians are
entitled to equal protection under the 14th amendment.

"The Court's silence just reinforces the need for our state to pass
legislation that would offer legal protections for Gays and Lesbians in
housing, banking and employment."

Rep. Murray introduced HB 1809, the Gay Civil Rights Bill, during this
year's legislative session. The bill, which would have offered such
protections, passed out of the House but stalled in the
Republican-controlled Senate.=20

The SGN also heard from the 15 member Seattle Commission for Sexual
Minorities and Seattle Mayor Greg Nickels.

"The Supreme Court decision is monumental in that it protects the
fundamental right to privacy for all Americans," said Mayor Nickels. "I'm
glad that the Supreme Court has recognized something that we in Seattle
have honored for years."

"This court ruling allows Gay men and Lesbians to know that we in our
bedrooms are free from persecution," said Night An'Fey, co-chair of the
Seattle Commission for Sexual Minorities. "Respect for our private lives
and our relationships is something that we have been seeking for years."


LGBT community leaders are preparing for a backlash from conservative
organizations that feel the decision is an affront to "traditional values,"=

opens the door to Gay marriage and loosens the noose on other forms of
outlawed sexual activity.

"There is a ton of work to be done. I don't mean to understate the
importance of the victory or the power that this tool will have now for us
as we apply it against that injustice in various ways but it is clear -
although a milestone in our struggle - we are not anywhere close to the end=

of the struggle," said Pedersen. "There is a moment to pause and celebrate,=

to be happy. Then we have to remember that in so many ways, people everyday=

are being denied equality or are being discriminated against. We have to
get right back to work. It is just shocking when you think about the ways
we are still discriminated against. Gay men can't give blood; Gay men and
Lesbians can't serve in the military openly; we don't have marriage rights
or any of the rights that flow from that; and in 30 some states it is still=

legal of us to be fired from employment for no better reason then we are
Gay and Lesbian"

"What we will probably see is more attempts to pass Defense of Marriage
Acts in states that don't have them," added Thompson. "There is a group
that has been pushing a constitutional amendment to the federal
Constitution that would declare marriage to be between a man and a woman
only. It would not surprise me to see efforts in Congress to try and pass
that but I have some doubts to whether they would succeed. Amending the
Constitution is a long and difficult process.

"The most immediate impact you will probably see is if a member of the
Court retires - and their has been all sorts of speculation in the media
that one or two may do that this summer. I would not be surprised to see
conservative groups add =D4anti-Gay' to their litmus test of whomever
President Bush might nominate. They already said they want somebody who
would repeal Roe v. Wade. I imagine there would be a fuss to try and get
someone who would vote to repeal this kind of decision too. So, there will
be some political fallout but that will sort itself out as such things
always do. There is no way to predict what will happen."

Jaci Osegurera, executive director of the Seattle LGBT Community Center,
issued a statement Thursday. She urged for continued community vigilance.=20

"Now that the Court has said Gay people have the right to due process and
equal privacy protection, we plan to press for full implementation of this
principle," she said. "We are demanding equal marriage rights, such as what=

they have in Canada; we are demanding equal employment rights, including in=

the military; we are demanding the equal right to adopt; equal health
benefits; and total and equal protection under the law. We will take this
victory and demand implementation of the Court's decision and we will be
active in the streets to make sure that this ruling doesn't remain just a
scrap of paper.=20

"It was not the Court's [Brown v. Board of Education] decision which
ultimately forced the desegregation of the nation's schools, it was the
courageous activists in the civil rights movement who began forcing the
implementation of that decision in the early 1960s as their movement gained=

strength. We will not remain complacent in the face of today's victory. If
anything, our work has just begun."

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