It was the sweeping nature of the decision that led most conservatives to view this decision as monumentally damaging. Justice Antonin Scalia criticized the "invention of a brand-new 'constitutional right'" and said this "effectively decrees the end of all morals legislation." In fact, he writes, the Court has, "has largely signed on to the so-called homosexual agenda.... The Court has taken sides in the culture war." Read the full opinion and dissents here.
Conservatives fear that this is but one step on the path to other victories--especially in light of Canada's recent decision to make gay marriage a de facto right and the Episcopal Church's probable selection of a openly gay bishop. Conservative gay writer Andrew Sullivan happily agreed: "Each day now, I can feel freedom dawning in this land again. The struggle of so many for so long is beginning to come true. What a privilege, what a joy, to be alive to witness it."
Below are excerpts from court opinions, amicus briefs, and reactions to the ruling that demonstrate this case's place in the broader issues of gay rights, gay marriage, and protection of the family.
Justice Kennedy's Majority Opinion
"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....
"The condemnation has been shaped by religious beliefs, conception of right and acceptable behavior and respect for the traditional family. 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."
"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct....
"One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in public and in the private spheres.' It is clear from this that the Court has taken sides in the culture war, departing from the role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their businesses, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home....
"So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal...
"Let me be clear that I have nothing against homosexuals,or any other group promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -or, for that matter, display any moral disapprobation of them -than I would forbid it to do so.
"What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change....
"Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions,insofar as formal recognition in marriage is concerned."
Other Critical Reactions
Gary Bauer, President of American Values
"Once again, an activist Supreme Court has substituted its judgment over the decisions of the citizens of Texas who, through their elected representatives, had made a moral and legal judgment about behavior. The decisions that the citizens made were well within the traditions of Western Civilization and are now overtaken by an activist judgment of the Supreme Court.
"The White House should take note of the fact that four of the six justices making this decision were appointed by Republican Presidents. A conservative, pro-family President must be extremely careful to make sure that any appointments he makes will defend traditional values and not aid in the assault against the family and reliable standards of right and wrong."
Read Bauer's full statement.
"Once again judicial activists have used their fertile imagination to create rights that simply don't exist in the Constitution. In doing so, they have imposed their own moral judgments in place of state legislatures and have thereby undermined the democratic process. Unelected warriors wearing black robes become the chief architects of public policy.
"If the hallmarks of the test are consent and privacy, then that throws the door open to any sexual behavior. The radical homosexual lobby will seek to apply the logic, extending a blanket privacy protection over one's choice of sexual partner to one's choice of marital partner as well--regardless of sex."
Read the full statement.
Tom Minnery, Focus on the Family
"With today's decision the court continues pillaging its way through the moral norms of our country. If the people have no right to regulate sexuality then ultimately the institution of marriage is in peril, and with it, the welfare of the coming generations of children."
Read the full statement.
Positive Reactions
Mel White, Soulforce
"This is a fantastic day for all people because the Supreme Court has recognized that our government has no place in our bedrooms, nor a right to selectively single out people of minority sexual orientation for criminal punishment.
"Maybe some churches that alienate and degrade us will see the light after today as well."
Read the full statement.
Andrew Sullivan, conservative gay commentator
"It would be hard to find a more emphatic statement that gay men and women are a) human beings whose private lives deserve privacy and b) citizens who deserve the same treatment as everyone else under the law.
[...] "Once you acknowledge the dignity of gays as a social class, once you have conceded that their private sexual and emotional lives cannot be reduced to a single sexual act, once you have made the law equal with respect to the private sex lives of heteros and homos, the logic of same-sex marriage becomes hard to resist. ... Equality under the law means something. And now, it inescapably means the right to marry - for all citizens and not just those with power."
Read more from Andrew Sullivan.
Rabbi David Saperstein, Religious Action Center of Reform Judaism
"Today's Supreme Court decision represents a significant leap forward in the protection of the equal rights of gay and lesbian Americans and in the right to privacy for all. The ruling signifies how far the Court has progressed since its 1986 ruling in the Bowers v. Hardwick case, which found that gay and lesbian Americans did not share the right to privacy afforded to heterosexuals. We are gratified that a majority of the Court now recognizes that a law such as that in Texas "demeans the lives of homosexual persons." We applaud the Court's acknowledgment that gays and lesbians have "the full right to engage in private conduct without government intervention," and, beyond the specific issue of gay rights, the Court's affirmation of the fundamental nature of the right to privacy in American law."
Brief of the Alliance of Baptists, the American Friends Service Committee, the Commission on Social Action of Reform Judaim, The Most Rev. Frank T. Griswold, III, Presiding Bishop, Episcopal Church, the Methoist Federation for Social Action, More Light Presbyterians, the General Synod of the United Church of Christ, the Unitarian Universalist Association, and 21 other religious organizations:
"The amici hold differing views concerning the religious and moral propriety of sexual intimacy between same-sex partners, but they are unanimous in their belief that private, consensual sexual conduct between same-sex adults should not be punished as a crime."
[.] "The religious traditions of some amici recognize the morality of consensual sexual intimacy between members of the same sex or hold that such conduct is not intrinsically immoral. The religious traditions of other amici teach that same-sex sexual conduct is to be discouraged by the family and faith community. Despite these differences, the amici are unanimous in the belief that criminalizing the private behavior of a particular minority, as Texas' Homosexual Conduct law does, intrudes upon individual liberty and violates the rights of gay, lesbian, and bisexual individuals."
Brief of Amicus Curiae American Family Assocation, and other groups:
"The religious traditions of some amici recognize the
morality of consensual sexual intimacy between members of
the same sex or hold that such conduct is not intrinsically
immoral. The religious traditions of other amici teach that
same-sex sexual conduct is to be discouraged by the family
and faith community. Despite these differences, the amici
are unanimous in the belief that criminalizing the private
behavior of a particular minority, as Texas' Homosexual
Conduct law does, intrudes upon individual liberty and
violates the rights of gay, lesbian, and bisexual individuals."
[.] The religious traditions of some amici recognize the morality of consensual sexual intimacy between members of the same sex or hold that such conduct is not intrinsically immoral. The religious traditions of other amici teach that same-sex sexual conduct is to be discouraged by the family and faith community. Despite these differences, the amici are unanimous in the belief that criminalizing the private behavior of a particular minority, as Texas' Homosexual Conduct law does, intrudes upon individual liberty and violates the rights of gay, lesbian, and bisexual individuals.
Brief Amicus Curiae of the Family Research Councl and Focus on the Family, in support of the respondent:
"We are in early stages of an increasingly intense
political debate about the central cultural institution of
our society, of which the aspiration to same-sex marriage
is more symptom than cause. It is not a debate about
modestly increasing the number of people able to marry, or
of incrementally adjusting our understanding of it. At
stake is the intelligibility of marriage as we have, from
time immemorial, understood it. It would be greatly
inopportune, and bitterly divisive, for this Court to implicitly
decide this great question by overturning the judgment
below."
