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no doubt, been the "most criticized Supreme Court decision of modern times." But the Kentucky opinion was "particularly striking," said Wolfson.
"It's a remarkable decision," said Wolfson, "in that it is very strong. It sends a clear message to other state courts that, in this era of a hostile federal judiciary, state courts should look to the federal constitution as a floor, not a ceiling, when it comes to individual rights."
The Kentucky court's act also represents the first time a state supreme court has struck down a sodomy law since the Hardwick decision on the Georgia law. That leaves only 23 states and the District of Columbia with enforceable laws still on the books. In two of those remaining states, legal challenges are advancing.
The Kentucky sodomy law, like that in six other states, prohibited sodomy only when it involved same-sex couples. In perhaps its most defiant language, the Kentucky bench snubbed the U.S. Supreme Court's arguments in Hardwick specifically. Sex between same-sex couples "is not beyond the protections" of "our Kentucky Constitution simply because `proscriptions against that conduct have ancient roots'," said the court, again echoing the U.S.Supreme Court's reasoning. "Kentucky constitutional guarantees against government intrusion address substantive rights."
In its Sept. 24 decision, the majority ruled that the law clearly violated the right
October 16, 1992
was striking throughout the 34-page opinion penned by Justice Charles Leibson was its openly contemptuous rejection of the U.S. Supreme Court's reasoning.
"We view the United States Supreme Court decision in Bowers v. Hardwick as a misdirected application of the theory of original intent," wrote Leibson. ""To illustrate: As a theory of majoritarian morality, miscegenation [interracial marriage] was an offense with ancient roots. It is highly unlikely that protecting the rights of persons of different races to copulate was one of the considerations behind the Fourteenth Amendment. Nevertheless, in Loving v. Virginia, the United States Supreme Court recognized that a contemporary, enlightened interpretation of the liberty interest
23 states with sodomy laws
In the South (12)
Alabama
Arkansas? Florida Georgia Louisiana Maryland Mississippi North Carolina South Carolina Tennessee Texas
Virginia
In the West (5)
Arizona
Mentana
Utah
Idshe
Nevada
New England (1)
Rhode Island
Midwest (5)
Kansa
Minnesota
Missouri
Michigan
Oklahoma
The District of Columbia, not a state, also has a sodomy law.
1 Currently under challenge through the courts. 2 Outlaws homosexual sodomy only.
involved in the sexual act made its punishCalifornia
ment constitutionally impermissible...
"Certainly, the practice of deviate sexual intercourse violates traditional morality," wrote Leibson. "But so does the same act between heterosexuals, which activity is decriminalized." Thus, the Kentucky court also characterized as "outrageous" the attempt by the state attorney general's office to argue that the sodomy law was necessary to protect children, to stop the transmission of disease, and to stop public sexual activity.
Reprinted with permission from the Washington Blade.
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measure, which codified existing court rulings into law, is the "best that we as lesbian and gay people are going to get from someone like Pete Wilson."
"It really is half a loaf," said Lester Olmsted-Rose, former Community United Against Violence community organizer and aide to Supervisor Angela Alioto. "It doesn't really do much, but on the other hand it's a huge step toward recognition of our community. It's clearly flawed though. It's not equal protection under the law, but I think it's the best we're ever going to see
Texas sodomy law from a Republican."
to privacy and the right to equal protection to be reviewed
which the Kentucky constitution promises its citizens.
It was no surprise that the Kentucky Supreme Court decision discussed the U.S. Supreme Court's reasoning in Bowers v. Hardwick at length. Many courts, on various cases since 1986, have cited the Hardwick decision to uphold numerous laws and actions against gays. But what
The Texas Supreme Court agreed last month to review the state's appeal of a case that is challenging the constitutionality of the state sodomy law. The law prohibits only homosexual sodomy. The Texas Human Rights Foundation said the court will hear arguments in the case on January 5.▼
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Gay rights attorney Walter Parsely told the Bay Area Reporter that he also had a dissenting view about the measure.
"It's weaker than case law that already exists, it allows discrimination by employers with less than five employees, and it allows religious groups to discriminate. It's wrong to separate anti-gay discrimination laws from all other discrimination laws. It separates us from others and we should be able to use the Department of Fair Employ-
ment and Housing like every other minority group," he said.
Parsely is correct: when AB 2601 becomes effective on January 1, 1993, lesbians and gay men in California will have fewer protections against discrimination than they do now.
When the governor vetoed AB 101 last November, he called on the Labor Commission to include sexual orientation discrimination in its caseload, so discrimination against lesbians and gay men has been banned through enforcement of the Labor Code since then.
Currently, the Labor Commission does not exempt businesses with fewer than five employees and religious institutions from its ban on sexual orientation discrimination, but on January 1 the exemptions will become effective.
Other activists have also questioned the festive mood after the signature, and particularly after the veto of AB 3825, a more comprehensive civil rights bill, the following day, suggesting that it was direct action and anger in the streets that made the law a reality in the first place.
Reprinted with permission from the Bay Area Reporter, San Francisco.
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