Last edited: February 06, 2005

To Right a Wrong

St. Petersburg Times, December 16, 2002
P. O. Box 1121, St. Petersburg, FL 33731
Fax: 727-893-8675

The U.S. Supreme Court should right the wrong decision it made in 1986 when it upheld a state anti-sodomy law and keep the government out of the bedrooms of consenting adults.

Bowers vs. Hardwick is among a handful of decisions handed down by the U.S. Supreme Court that will be remembered as a product of the prejudices of the time. The 1986 ruling upheld the conviction of a gay couple under a Georgia antisodomy law, and rejected the idea that the government should not dictate what occurs between consenting adults in the privacy of their bedroom. On Dec. 2, the high court announced it will revisit Hardwick, offering the justices a chance to right a wrong. The disturbing ruling should be relegated to the dustbin of Supreme Court mistakes alongside the 1857 decision in Dred Scott vs. Sanford, the court’s defense of slavery, and Plessy vs. Ferguson, the 1896 decision approving the racist doctrine of separate but equal.

The case that will be heard this term involves Houston residents John Lawrence and Tyron Garner who were arrested in 1998 under a Texas statute prohibiting "homosexual conduct." Sheriff’s deputies had been called to Lawrence’s apartment after a neighbor filed a false report of a domestic disturbance. The men were found engaging in sex and were later convicted of a misdemeanor and each fined $200. On appeal, a panel of the state appellate court initially set aside their conviction, but when the court sat en banc, as a full court, the conviction was reinstated on the grounds that preserving public morals was an appropriate realm for legislative action. The Texas high court then refused to hear the matter.

By taking Lawrence’s and Garner’s appeal, the U.S. Supreme Court has agreed to consider whether the Texas statute violates the Constitution’s protection of liberty and privacy by dictating limits on sexual intimacy, and whether the statute violates the right to equal protection of law by treating the same acts performed by homosexuals and heterosexuals differently.

The equal protection argument may be the easier of the two to make, but both grounds should prevail. Our package of individual rights should protect us both from the government targeting unpopular groups with punitive laws, and from the government criminalizing sexual practices between consenting adults.

The Texas law is clearly susceptible to an equal protection claim, since it applies only to homosexual sodomy and not to the same acts performed by heterosexual couples. In a 1996 case, the U.S. Supreme Court already telegraphed its disapproval of states using the law to discriminate against gays. But resting a reversal of Lawrence’s and Garner’s conviction on equal protection alone would be less than satisfying. There are 13 states that criminalize sodomy between consenting adults, including Florida, but only four of those apply solely to homosexual conduct. A Texas legislature intent on keeping same-sex couples from intimate relations could merely modify its law to include heterosexuals.

Though rarely enforced, when sodomy charges are filed they are primarily used to punish homosexuals. The presence of these laws on state statute books gives bigots an excuse to delegitimize the millions of same-sex families in this country. State officials have used them to justify discrimination against gays and lesbians in employment, government benefits and housing.

If our constitutional right to privacy means anything, it means we have a right to keep the government out of our bedrooms. It is about time the Supreme Court clarifies this right once and for all.

An interesting postscript to the Hardwick case is that Michael Bowers, Georgia’s former attorney general who took the case to the Supreme Court after the 11th U.S. Circuit Court of Appeals had ruled that the sodomy law violated the right to privacy, later had a 15-year adulterous affair exposed when he ran for governor. His mistress told the press, "As far as sodomy is concerned, Mike Bowers is a hypocrite."

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