When We Went Gay

A year after Bowers v. Hardwick, Ronald Reagan tried to move the court sharply to the right by nominating Robert Bork to be a Supreme Court Justice. After a fierce battle in the Senate, his nomination was rejected by a vote of 58 to 42. Anthony Kennedy was then nominated and confirmed for the same opening. Five years later, in 1992, Bill Clinton became the first President to be elected with the active support of the gay community. He then nominated Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, and the Senate confirmed them in 1993 and 1994, respectively. Together, these four events set the stage for the single greatest triumph of the gay-rights movement in America.

In 2002, the Supreme Court agreed to hear an appeal in the case of Lawrence v. Texas. The facts of the case were quite similar to Bowers v. Hardwick. As in the earlier case, two men—John Geddes Lawrence and Tyron Garner—had been arrested inside a private home by a policeman who had discovered them in bed together. Gay-rights attorneys had been searching for the best case to bring before the court to overturn the Bowers v. Hardwick precedent, and Lawrence seemed to provide the perfect opportunity to do that. This time the challenge was to the anti-sodomy law in Texas.

On June 26, 2003, the Supreme Court issued the decision that every gay activist had been waiting for since the birth of the movement. The 6-to-3 decision was written by Justice Kennedy. The majority had been made possible by Justice Kennedy and the two justices appointed by Bill Clinton, the most gay-friendly President in history. This made it a triumph of politics, as well as common sense.

It overruled the Texas law in the broadest way possible. It also apologized for the Bowers v. Hardwick decision with unprecedented directness. Linda Greenhouse, the veteran Supreme Court correspondent for The New York Times, specified the singular importance of the decision: “A conservative Supreme Court has now identified the gay rights cause as a basic civil rights issue.”

The court had reversed itself many times on many other subjects, including segregation. But never before had it used such sweeping language to repudiate a previous precedent. “Bowers was not correct when it was decided, and it is not correct today,” Justice Kennedy wrote. “It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled …. Its continuance as precedent demeans the lives of homosexual persons.”

To Mr. Coles, Lawrence was for gay people what Brown v. Board of Education had been for black people: the single most important legal event in the history of their struggle. With a stroke of the pen, the court had struck down all 13 of the remaining state laws which had made the way gay people make love a crime:

“Freedom extends beyond spatial bounds,” Justice Kennedy wrote. “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

“It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

“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.’”

“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.”

With this revolutionary opinion, Justice Kennedy had transformed the status of gay people forever. And he had done so in the wisest way possible: He had broadened the definition of liberty in America for everyone.

When We Went Gay