Background: Expanding Privacy

JIM LEHRER:

The sodomy ruling, we begin with Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune. Again, Jan, welcome.

JAN CRAWFORD GREENBURG:

Thank you.

JIM LEHRER:

Again quickly, the facts in this case.

JAN CRAWFORD GREENBURG:

Sure. This case came about when Houston police officers entered the apartment of a man to discover him having sex with another man. They arrested both men, took them to jail. The men spent the night in jail, were released the next morning — ultimately convicted of violating a Texas law that makes homosexual sex a crime, even when it's between consenting adults. The men ended up paying a fine.

JIM LEHRER:

A misdemeanor — $200 fine.

JAN CRAWFORD GREENBURG:

$200 fine and I think $141 in court costs. They challenged the law and their convictions arguing that it violated their constitutional rights to privacy and their right to be treated equally.

JIM LEHRER:

How did it get to the Supreme Court?

JAN CRAWFORD GREENBURG:

They lost in the Texas courts. The Texas courts said that it was bound by a 1986 ruling from the U.S. Supreme Court. The U.S. Supreme Court in that case upheld a similar law in Georgia that made homosexual sex a crime.

JIM LEHRER:

All right. So it had to go back to the Supreme Court one way or another.

JAN CRAWFORD GREENBURG:

Right.

JIM LEHRER:

All right now it was a 6-3 majority that struck it down today. Justice Kennedy wrote the majority opinion. What did he say?

JAN CRAWFORD GREENBURG:

The opinion was extraordinarily, I think, sweeping in scope and stirring in tone. He flatly rejected the court's 1986 decision in that case which was called Bowers versus Hardwick. He said that decision was incorrect when it was decided and it is incorrect today. He said the court in 1986 had failed to grasp the significance of the liberty interests that gays and lesbians had at stake with these kinds of laws and that the ruling had demeaned the interest of gays and lesbians and it failed to grasp the far- reaching consequences that these law often carried forth. I mean, these laws are not enforced that often. I mean this is quite an extraordinary prosecution to begin with. But that misses the point, Justice Kennedy suggested, because these laws have been used as the foundation for discrimination against gay men and lesbians and countless other areas of society from housing, employment, adoption, and on, the list goes on.

JIM LEHRER:

How much did he hang it on the right of privacy?

JAN CRAWFORD GREENBURG:

That was the key to Justice Kennedy's opinion. He said that gays and lesbians have a liberty right which encompasses this privacy right in the constitution's 14th Amendment, which says, of course, that states can't deprive you of life, liberty or property without due process of law. And he grounded the opinion on a string of earlier decisions including Roe versus Wade that recognized that people have a very strong right in their intimate decisions in the choices they make, whether it's the right to get married or buy contraceptive devices, and today he said that people also, gays and lesbians also have that same kind of liberty interest and privacy right in making these very intimate choices about their own behavior in the privacy of their own homes and elsewhere.

JIM LEHRER:

All right. The three dissenters were the Chief Justice Rehnquist and Justices Scalia and Thomas. What was their point?

JAN CRAWFORD GREENBURG:

Justice Scalia wrote quite a pointed dissent in which he accused the court of taking sides in the culture wars and adopting the so-called homosexual agenda. He said the Supreme Court had forgotten that the mainstream America, that people who are outside the so-called position that the court was embracing don't share these views. Justice Scalia said many people don't want to employ homosexuals or have them teach their children or lead their children's scout troops and that the court had just brushed those concerns aside and brushed aside the state's concerns in making these moral justifications in passing these kinds of laws. Justice Thomas called the law itself in his dissent uncommonly silly, and he said.

JIM LEHRER:

In other words the Texas law.

JAN CRAWFORD GREENBURG:

Right. He certainly didn't defend the law. He said if you were a member of the Texas legislature, he surely would vote to repeal it. But as a judge, he could not find a right to privacy in the Constitution.

JIM LEHRER:

What did Justice Scalia say about the right to privacy?

JAN CRAWFORD GREENBURG:

Well, Justice Scalia said that this was certainly nowhere in the Constitution, and that this law certainly was constitutional in his view. Now, he also addressed Justice O'Connor's opinion. She wrote separately. She didn't join Justice Kennedy's opinion, and she didn't think the court needed to overrule Bowers versus Hardwick. She looked at this case along an equal protection analysis along the lines that gays and lesbians should be treated equally. Just as if… just as heterosexuals should be treated and said that because the law singled them out for discrimination that in her view that was unconstitutional so Scalia rejected that thinking as well.

JIM LEHRER:

It's a technical thing. She was one of the six but she was not with Kennedy in the overall….

JAN CRAWFORD GREENBURG:

She agreed that the law needed to be struck down, she just didn't agree on the reasoning.

JIM LEHRER:

Okay. Jan, don't go away.