WASHINGTON – The Supreme Court on Thursday defied its stridently conservative image by issuing two important rulings that, along with several others in its current term, embraced tolerance, inclusion and even compassion in their interpretations of federal law.

In a decision striking down a Texas sodomy law that banned gay sex, the Rehnquist court mounted a firm and eloquent defense of personal liberty. And the justices gave new strength to death row inmates’ appeals by declaring that a Maryland man was the victim of incompetent lawyers at his capital trial.

Thursday’s rulings follow other decisions this term to uphold affirmative action in university admissions, strengthen the Family and Medical Leave Act, provide lawyers for the poor and ban cross burning in some instances.

Taken together, the opinions challenge the notion that the court under William H. Rehnquist has its sights trained on the progressive gains of the last 40 years, and is only awaiting sufficient opportunities to obliterate them.

“I think that’s one of the major themes of this term,” said Michael Small, a former deputy associate U.S. Attorney General and now senior counsel at the Akin, Gump, Strauss Hauer & Feld law firm in Los Angeles.

Small said the court did uphold three-strikes legislation and the so-called Megan’s law child sex-offender registries – issues he calls “red meat” rulings for conservatives.

But the court also trumpeted the benefits of diversity in the affirmative action ruling. It upheld a Virginia law that outlawed cross burnings when they are intended to intimidate or threaten. And Rehnquist wrote a surprising opinion about the family leave act that extolled the importance of its application to both genders, noting the increasing role of men as caregivers.

“Especially on issues of inclusion, this court has had strong rulings this term,” Small said. “And that’s not something you’d expect from them.”

Nate Persily, a law professor at the University of Pennsylvania, said that understanding the justices’ behavior requires more than rudimentary right-versus-left thinking.

“It’s important to talk about what you mean by conservative,” Persily said. “Yes, this court has been conservative with respect to curbing Congress’ ability to pass laws or to enforce them on states. But this court has also been unwilling to overturn any of the foundational court principles about liberties and civil rights.”

Persily said many of the important rulings this term are consistent with the court’s nuanced conservatism, and specifically reflective of its middle-ground justices, Anthony M. Kennedy and Sandra Day O’Connor.

“This is really about them and the role they’re playing on the court,” Persily said.

In Thursday’s 6-3 ruling on sodomy, Kennedy took the lead in declaring that laws banning gay sex “demean” homosexuals’ existence by criminalizing their private behavior.

The case involved two Texas men who were arrested after police found them engaging in sexual activity in their home.

Texas was one of 13 states that prohibits sodomy, and one of only four that specifically bans oral and anal sex between same-sex couples. Thursday’s ruling invalidated those laws.

Lawyers for Texas said the law was designed to uphold moral standards, and they drew a stark distinction between sex in the context of marriage or child rearing and sex in the context of a gay relationship.

The court’s ruling not only rejected those positions, but also went further to overturn a previous court ruling that permitted laws banning sodomy.

Kennedy’s opinion connected sodomy laws to anti-gay discrimination and more fundamental assaults on personal liberty. And in a move that is sure to anger social and religious conservative groups, he invoked the reasoning in controversial abortion cases – Roe v. Wade and Casey v. Planned Parenthood – to justify the court’s decision.

“Rarely would you see a justice so confident as to invoke controversial abortion doctrine in an opinion on another matter,” said Persily. “That’s part of what makes this ruling so sweeping. This is about the right to be free from governmental interference in the most private parts of your life.”


In a caustic dissent, much of which was read from the bench Thursday, Justice Antonin Scalia accused the justices who formed the majority opinion of signing on to “the so-called homosexual agenda.” He said he “had nothing against homosexuals” pursuing changes in law through democratic means, but decried the court’s invention of a “brand-new” constitutional right to strike down Texas’ statute.

Only Justice Clarence Thomas and Chief Justice Rehnquist joined Scalia’s dissent.


In the death penalty case decided on Thursday, O’Connor’s opinion for a seven-justice majority gives an undeniable boost to death row inmates.

The ruling found that lawyers for Kevin Wiggins, accused of murdering an elderly Maryland woman in 1989, violated his constitutional rights to effective counsel when they failed to investigate his history of horrible abuse fully.

Wiggins was neglected by his birth mother and subjected to “physical torment, sexual molestation, and repeated rape” in foster care, O’Connor wrote. And those facts might have convinced a jury to spare him a death sentence, even after he was convicted of murder. In capital trials, juries weigh evidence – and a defendant’s history – a second time before handing down a sentence.


But Wiggins’ lawyers did not compile an extensive social history, and they introduced no testimony or evidence of his abuse during the penalty phase of his trial. The court said that performance “fell short of professional standards” required of capital lawyers.

The court’s ruling means that Wiggins will get a new sentencing. Beyond that, it is an important departure from years of congressional action and court rulings that have made it harder for death-row inmates to challenge their convictions in federal courts.


Even Rehnquist, one of the court’s least sympathetic justices on death penalty issues, voted in Wiggins’ favor Thursday.

Stephen Bright, the director of the Southern Center for Human Rights, said that if the court determined that Kevin Wiggins had a legitimate constitutional claim, then hundreds of death-row inmates also do.

“Particularly in the South, where states often don’t fund public defenders’ offices, anyone with a bar card can wind up defending you in a capital trial,” Bright said. “You get guys handling a speeding ticket one day and a death-penalty case the next. This ruling says you have to do better than that now. It sets the bar higher.”

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(c) 2003, Knight Ridder/Tribune Information Services.

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