Tabu Toypro
Despite U.S. Supreme Court decisions, lower courts still use the 'morality of the majority' to criminalize consenting sexual acts.

By J. Kelly Strader for LATimes Opinion

Gay-rights groups are battling over whether to seek an amendment providing a right to same-sex marriage under the California Constitution on the 2010 ballot. But these groups might want to look beyond marriage and consider whether they even have a secure right to intimacy in the bedroom.

They probably thought they won that debate when, in 2003, the U.S. Supreme Court in Lawrence vs. Texas instructed states not to interfere with gay people's private sex lives. To an astonishing degree, however, lower courts across the country are essentially ignoring the Supreme Court's ruling.

The Lawrence case and its aftermath illustrate the constant threat to our privacy rights. The police in that case -- acting on a false tip of a weapons disturbance -- burst unannounced into John Lawrence's home and found him having sex with another man. The men were convicted under Texas' sodomy law. Lower courts affirmed the mens' convictions, citing the Supreme Court's 1986 decision in Bowers vs. Hardwick.

In Bowers, the court had upheld Georgia's sodomy law, ruling that it could be justified by the public's "notions of morality."

The Lawrence decision overturned Bowers and explicitly repudiated Bowers' morality-based rationale. The high court in Lawrence -- citing Justice John Paul Stevens' dissent in Bowers -- stated that "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." If majoritarian morality alone were sufficient, then states could continue to outlaw any unpopular practice. Some states, for example, used majoritarian morality to criminalize interracial marriage until the Supreme Court held such laws unconstitutional in 1967.

So, based on the reasoning in the Lawrence decision, you might conclude that lower courts would strike down laws that are solely based on majoritarian morality. You would be wrong. In fact, in cases ranging from criminal law to gay adoption and the military's "don't ask, don't tell" policy, Lawrence has had remarkably little effect.

There are many examples. In one case, a federal appeals court in Alabama upheld that state's law criminalizing the sale of sex toys. The court found that "public morality" alone was a sufficient basis for the law, despite Lawrence's admonition to the contrary.

read the rest of the article on
Shop safe at
Read our Sex Blog!
Quote 0 0
Absolutely spot on ! I fully agree but also wonder if there are not some exceptions to most gay rules.
Quote 0 0
Well agreed but please contrast this with the situation when gay partners split ?
Quote 0 0