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from Political News
Recent Legal Developments-
Texas Sodomy Law & Canada Marriage Law
William C. Duncan
NARTH Legal Committee
July 15, 2003
On June 26, 2003, the United States Supreme Court issued an eagerly awaited
ruling in Lawrence v. Texas, a challenge to a Texas law prohibiting sodomy
between same sex couples. The court ruled 6-3 that the law was unconstitutional.
The majority opinion was written by Justice Anthony Kennedy and joined by four
other members of the Court. This opinion explicitly overruled a previous case
from 1986 (Bowers v. Hardwick) which had rejected the idea that anyone had a
right to engage in sodomy. In Lawrence, the Court held that a constitutional
right to privacy included the right to engage in sodomy. The Court specifically
held that the State's interest in promoting public morality could not be used as
a justification for the law. Though the exact source of the constitutional right
being recognized was not at all clear from the Court's opinion, the Court did
say that it was not making any comments about rights for same-sex couples based
on relationships.
Justice Sandra Day O'Connor agreed with the result of the majority opinion but
would have based the decision on the fact that the law prohibited sodomy between
same-sex but not opposite-sex couples. Justice O'Connor specifically disavowed
any claim that the decision would effect the definition of marriage.
In a stinging dissenting opinion, Justice Antonin Scalia pointed out the lack of
constitutional basis for the Court's opinion. He warned the public not to
believe that the decision would not affect the legal definition of marriage. In
a final brief dissenting opinion, Justice Clarence Thomas expressed the
inability of judges to deal with the complaint made by the parties in this case
since the State legislature, not the Court, was the appropriate forum for
changing the law.
While the full impact of this decision may not be know for some time, the
willingness of the Court to remove important social disputes from the democratic
process does not bode well for the family in America.
Meanwhile, in the north, the Ontario Court of Appeals ruled on June 10, 2003,
that the definition of marriage in Canada had to be changed to allow for any two
people to marry. Two weeks later, the Prime Minister, Jean Chretien, announced
that the government would not appeal that ruling to the Supreme Court of Canada.
The Ontario decision followed those of courts in Quebec and British Columbia but
these earlier decisions had been delayed to allow the federal government to
respond. The Ontario case was made effective immediately. Following that
example, the British Columbia court changed its earlier ruling to make the
effect immediate. So, at this moment marriage licenses are being issued to
same-sex couples in two provinces.
In order to ensure all of the provinces comply, the Prime Minister is planning
to introduce legislation in Canada's Parliament in the autumn that would
redefine marriage to line up with the court opinions. He will also submit the
law to the Supreme Court of Canada for an advisory opinion beforehand to prevent
legal challenges to the proposed legislation.
At least one province, Alberta, has announced it will not comply with the law if
that can be avoided. In addition, a pro-family coalition is trying to get the
Supreme Court of Canada to reverse the Ontario court's opinion.
Updated: 3 September 2008
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