Burnt Orange Report

Legal Arguement for Gay Marriage?

By Byron LaMasters

From Lawrence et al. v. Texas

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions:

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from con- stitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty ” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

JUSTICE STEVENS ’ analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who,with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They 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.As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Brilliant. What's next? Kennedy writes that, "The State cannot demean their existence or control their destiny...". We'll have to wait and see how broadly this can be interpreted, but following Kennedy's logic, it seems as if there is now a legal arguement for gay marriage, and equal rights for gays and lesbians at every level.

Already, the decision is being used to push for gay marriage in Connecticut:

While Connecticut does not have a sodomy law, Rep. Michael Lawlor said the high court's 6-3 decision helps support the argument for gay marriage in the state.

Lawlor said the Supreme Court justices made clear that it is unconstitutional to single out gays and lesbians and deny them equal rights. He expects that argument also will be used in the push for gay marriage in Connecticut.

Lawlor and several other lawmakers tried to get a bill passed this session that would have allowed same-sex couples to register their relationships with the state. The registry would have given more rights to same-sex couples.