From Americans United for Separation of Church and State
June 26, 2003
“This decision is a strong reaffirmation of the principles of secular government and personal freedom,” said the Rev. Barry W. Lynn, Americans United executive director. “The court made it clear that religious belief cannot serve as the basis of criminal law.
“This sends a strong message to the Religious Right and its allies that our Constitution does not permit government to enforce religious dogma or ride roughshod over the rights of minorities.”
Justice Anthony Kennedy, writing for the court majority, observed, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”
Kennedy said former Chief Justice Warren Burger and other members of the high court were wrong to base their 1986 decision in part on centuries of societal disapproval of homosexual conduct. (Burger, in his opinion in that ruling, cited legal proscriptions on homosexuality “throughout the history of Western civilization” and said “condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.”)
But Kennedy and the court majority today took issue with Burger’s analysis.
“The condemnation [of homosexual conduct] has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family,” Kennedy noted. “For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.”
Quoting court precedent, Kennedy added, “Our obligation is to define the liberty of all, not to mandate our own moral code.”
Kennedy said Burger did not take into account other developments in Western civilization that point in an opposite direction. Kennedy noted legal developments in Britain and the European Court of Human Rights upholding the right of consenting adults to engage in private sexual conduct without suffering criminal penalties.
Citing court precedent safeguarding reproductive rights, Kennedy insisted that the Due Process Clause broadly protects individual liberty.
“The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” the justice insisted. “In explaining the respect the Constitution demands for the autonomy of the person making those choices, we stated as follows: ‘These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.'”
Concluded Kennedy, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”