By Joan Biskupic
Dec 7 (Reuters) - The two gay marriage cases the U.S.
Supreme Court agreed to hear on Friday begin a new chapter in
its review of discrimination based on sexual orientation.
It has been nearly a decade since the court last took up a
gay rights dispute. That 2003 case from Texas, along with the
court's two earlier gay rights rulings on the issue, were
closely fought and produced strong dissenting opinions. Here is
how the justices divided in past cases:
Bowers v. Hardwick, 1986
Facts: Michael Hardwick was arrested for engaging in
intimate sexual conduct with another man in Hardwick's Atlanta
home, violating a Georgia ban on oral and anal sex for
homosexual and heterosexual couples. The charges against
Hardwick were dropped, but he challenged the sodomy prohibition
as unconstitutional when enforced against same-sex relations.
Supreme Court vote: 5-4 to uphold the law
Majority: In an opinion by Justice Byron White, the court
said no right to privacy existed for homosexual relations. White
emphasized that "proscriptions against that conduct have ancient
roots" and said legislatures often pass laws "based on notions
of morality." The court spurned Hardwick's claim that intimate
conduct in a private home should not be subject to criminal law.
"Victimless crimes, such as the possession and use of illegal
drugs, do not escape the law where they are committed at home,"
White wrote, joined by Chief Justice Warren Burger and Justices
Lewis Powell, William Rehnquist and Sandra Day O'Connor.
Dissent: Justice Harry Blackmun said the Georgia law wrongly
denied gay men and lesbians choices about their private,
consensual activities. "This case involves no real interference
with the rights of others, for the mere knowledge that other
individuals do not adhere to one's value system cannot be a
legally cognizable interest, let alone an interest that can
justify invading the houses, hearts, and minds of citizens who
choose to live their lives differently," Blackmun wrote, joined
by Justices William Brennan, Thurgood Marshall and John Paul
(None of the nine justices who heard Bowers v. Hardwick is
still on the court.)
Romer v. Evans, 1996
Facts: After Aspen, Boulder and some other municipalities in
Colorado banned discrimination based on sexual orientation,
state voters adopted Amendment 2. That 1992 ballot measure
voided those ordinances and prohibited government entities in
Colorado from protecting gay men and lesbians against bias, for
example in housing, education and employment. Among the
individuals who challenged the law was Richard Evans, an AIDS
counselor in the Denver mayor's office.
Supreme Court vote: 6-3 to strike down Amendment 2.
Majority: Justice Anthony Kennedy rejected the state's
argument that the law merely denied gay men and lesbians
"special rights." Rather, he said, the measure put them at a
disadvantage and was "born of animosity," with no legitimate
governmental purpose. Declaring that Amendment 2 violated the
Constitution's guarantee of equal protection, he wrote, "A state
cannot so deem a class of persons a stranger to its laws." He
was joined by Justices Stevens, O'Connor, David Souter, Ruth
Bader Ginsburg and Stephen Breyer.
Dissent: Justice Antonin Scalia insisted the state measure
was "a rather modest attempt by seemingly tolerant Coloradans to
preserve traditional sexual mores against the efforts of a
politically powerful minority to revise those mores through use
of the laws." Condemning the majority opinion for being "long on
emotive utterance" and "short on relevant legal citation,"
Scalia said its decision had no foundation in U.S.
constitutional law. He was joined by Chief Justice Rehnquist and
Justice Clarence Thomas.
(Since the decision, Rehnquist has been succeeded by Chief
Justice John Roberts, O'Connor by Justice Samuel Alito, Souter
by Justice Sonia Sotomayor, and Stevens by Justice Elena Kagan.)
Lawrence v. Texas, 2003
Facts: Houston police officers responding to a reported
weapons disturbance entered the apartment of John Lawrence and
found him engaged in a sexual act with Tyron Garner, violating a
Texas law that criminalized oral and anal sex between same-sex
Supreme Court vote: 6-3 to strike down the law; five
justices spurned the 1986 Bowers v. Hardwick rationale and
declared the Texas sodomy ban violated the right to privacy;
O'Connor, who had been in the majority in 1986, voted against
the Texas statute on a separate rationale based on equal
protection of the law.
Majority: Declaring that the court failed to appreciate the
liberty at stake back in 1986, Justice Kennedy said the
Constitution protects the intimate relations of homosexuals just
as it does heterosexuals. He said Lawrence and Garner were
"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." Kennedy was joined in full by
Justices Stevens, Souter, Ginsburg and Breyer; O'Connor joined
only the bottom line to void the law.
Dissent: Justice Scalia again wrote for dissenters. He said
the majority wrongly expanded past cases involving due process
of law and said, "Let me be clear that I have nothing against
homosexuals, or any other group, promoting their agenda through
normal democratic means. Social perceptions of sexual and other
morality change over time, and every group has the right to
persuade its fellow citizens that its view of such matters is
the best. ... But persuading one's fellow citizens is one thing,
and imposing one's views in absence of democratic majority will
is something else." He was joined by Rehnquist and Thomas.
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