Civil Rights and Civil Liberties in the Supreme Court's 2002-2003 Term

Privacy and Reproductive Freedom

The 2002-03 Term produced a landmark ruling concerning the constitutional rights of gay men and lesbians, Lawrence v. Texas, 2003 U.S. LEXIS 5013 (2003). In a 6-3 decision, the Court declared unconstitutional a Texas sodomy law that criminalized private, consensual sex between adults of the same gender. Although Justice O’Connor reached that result under the Equal Protection Clause, explaining that because the law applied only to gay men and lesbians, it “makes homosexuals unequal in the eyes of the law,” 2003 U.S. LEXIS 5013 at 41, the majority went further and overruled the Court’s infamous 5-4 decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which had upheld a Georgia sodomy law as applied to gay men and lesbians. In an opinion written by Justice Kennedy and joined by Justices Breyer, Ginsburg, Souter, and Stevens, the majority in Lawrence recognized that the Texas law had “far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home,” and seeks “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” Id. at 16. The issue was not whether homosexual conduct is immoral, explained the Court, but rather whether a state could enforce a view of morality upon society as a whole. The majority specifically explained that it would be insufficient to base its ruling on the unequal treatment of gay men and lesbians under the Texas law and not examine Bowers because, if “protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.” Id. at 30. The majority concluded that the Court’s analysis in Bowers was fundamentally flawed, and held that sodomy laws written to apply to all people or only to gay men and lesbians violate privacy rights and liberty interests protected by the Due Process Clause. The majority thus explicitly overruled Bowers and declared the Texas statute unconstitutional. In a scathing dissent, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, criticized the majority’s treatment of stare decisis as well as its refusal to find that a state has a legitimate interest in promoting “majoritarian sexual morality.” Id. at 72. Justice Thomas also issued a separate dissent in which he stated that he was not “empowered” to grant any relief to the gay men convicted for violating the Texas law or any similarly situated persons. Id. at 83. Two more Justices on the Court aligned with the views of Scalia and Thomas would have upheld the Texas law, would have significantly eroded the right to privacy, and would have placed an enormous obstacle in the road to full equality for gay men and lesbians. (PFAWF filed an amicus brief in this case.)

The Court considered one case this term dealing indirectly with reproductive rights. In Scheidler v. National Organization for Women, 123 S. Ct. 1057 (2003), the issue was whether aggressive blockades and other activities blocking women’s access to abortion clinics could lead to civil liability under the Racketeer Influenced and Corrupt Organizations Act (RICO). The Court held in an 8-1 opinion that such actions did not constitute extortion as defined by the Hobbs Act, since the petitioners did not acquire any property, and that RICO thus did not apply. Although NOW argued that there had been a violation of property rights, namely “a woman’s right to seek medical services from a clinic, the right of doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion, and fear,” 123 S. Ct. at 1063, the majority did not agree that this constituted an obtaining of property as required by the Act. In his dissenting opinion, Justice Stevens took a more expansive view of the term “property,” found that the actions were extortion, and contended that by narrowly construing “property rights,” the majority’s holding would benefit “the class of professional criminals whose conduct persuaded Congress that the public needed federal protection from extortion.” Id. at 1012. (PFAW Foundation filed an amicus brief in this case.)

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