• Choose a category
• All
• Classic-Fiction

By Root 8583 0

have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals.” The nation, he went on, “has been shaped by religious beliefs, conceptions 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.” This was autobiography, for Kennedy’s own life had been shaped by those beliefs—but then he said those rules cannot prescribe what the Constitution commands for all.

The next part of the opinion—the key part—displayed the influence of Salzburg in Kennedy’s jurisprudence. Bowers made “sweeping references” to long-standing prohibitions on sodomy in Western civilization. These did not, however, “take account of authorities in an opposite direction,” Kennedy said, “including the decision of the European Court of Human Rights in a case called Dudgeon v. United Kingdom. That decision, with facts like Bowers and the instant case, held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights.” The pre-Salzburg Kennedy—even the pre–Bush v. Gore justice—would never have made such a reference.

As the tension rose in the courtroom, Kennedy finally announced the holding on the case: “The instant case requires us to address whether Bowers itself has continuing validity. We conclude the rationale of Bowers does not withstand careful analysis, Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers versus Hardwick should be and now is overruled.”

There was no mistaking the significance of Kennedy’s opinion. The point was not that the Court was halting sodomy prosecutions, which scarcely took place anymore. Rather, the Court was announcing that gay people could not be branded as criminals simply because of who they were. They were citizens. They were like everyone else. “The petitioners are entitled to respect for their private lives,” Kennedy wrote simply. “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The people who had devoted their lives to that cause understood precisely what had happened, which was why, to a degree unprecedented in the Court’s history, the benches were full of men and women sobbing with joy.

Photo Insert

Photo 1

On September 6, 2005, the justices lined up on the steps of the Court to greet the casket of William H. Rehnquist. From the top, John Paul Stevens (in bow tie), Sandra Day O’Connor, Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, and Stephen G. Breyer. Anthony M. Kennedy was in China, David H. Souter in New Hampshire. In the upper right corner is John O’Connor, Sandra’s ailing husband.

Photo 2

Seven of Rehnquist’s former law clerks and one former administrative assistant carried his casket. John G. Roberts Jr., who worked for the then-associate justice in 1980–81, is second in line on the right.

Photo 3

O’Connor weeps as Rehnquist, her friend of more than fifty years, returns to the Court for a final time.

Photo 4

They served together from 1994 to 2005—the longest period without change in the history of the nine-justice Court. Top row, from left: Ginsburg, Souter, Thomas, Breyer. Bottom row: Scalia, Stevens, Rehnquist, O’Connor, Kennedy.

Photo 5

On June 14, 1993, after a tortuous search, President Clinton introduces Ginsburg, his first nominee.

Photo 6

Breyer, Clinton’s second nominee to the Court, in 2006.

Photo 7

Stevens, at a speech in Chicago, in 2005.

Photo 8

Souter in 2003.

Photo 9

Thomas at the Ave Maria School of Law in 2004.

Photo 10

Scalia, with a characteristic gesture, in 2006.

Photo 11

Souter, haggard and drained, leaves the