Last edited: February 06, 2005

Unequal Protection

Boston Globe, March 29, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098

After Wednesday’s arguments, it seems inconceivable that the US Supreme Court will let the Texas antisodomy law stand. Texas is one of four states that do not restrict private, consensual sexual activity between men and women but make sodomy between same-sex couples a crime. This is a clear violation of the fundamental concept of equal protection. These states have not gone so far as to make homosexuality a crime, but they have produced the same effect by making their sodomy laws apply only to gay couples. The court should recognize this as an affront to basic American values and strike it down decisively.

But this would be a weak first step. Defendants in the Texas case urged the court to go further and invalidate the broader antisodomy laws that still exist in nine other states. Failure to do this would leave the court’s embarrassing decision in a 1986 case on record as the law of the land.

While the laws in those states do not explicitly differentiate, they are almost never enforced against heterosexual couples. The rights of gay couples to privacy under the due process clause of the Constitution are clearly at stake. Indeed, in the 1986 case, Bowers v. Hardwick, the majority in the 5-4 decision said it was “facetious” to assert that such a right could be claimed.

The Texas prosecutor, Charles Rosenthal, told the court that every state “has the right to set moral standards.” And Justice Antonin Scalia pulled no punches in describing the standard involved: “disapproval of homosexuality.”

Scalia made a point when he noted that Congress has declined several times to add gay people to the list of those protected by civil rights laws. But Scalia then asked Paul Smith—the lawyer for the two Texas men found having sex after the police broke into their apartment on a false tip—whether laws against homosexuality weren’t simply “moral judgments” like the laws against bigamy.

Smith rightly pounced on this question, noting that the bigamy laws have a direct relationship to the institutions of marriage and family—which deserve legal protection and encouragement—while antisodomy laws serve no such purpose.

It is astounding, in fact, that opponents of gay rights continue to voice objections based on their apparently genuine fear that the very existence of private homosexual conduct somehow threatens heterosexual marriage and family. But how? Do gay men somehow become husbands and fathers in heterosexual relationships because a law in their state bans gay sex? Do straight women abandon men for same-sex relations in some states simply because it is not illegal?

The idea is ridiculous, yet the Supreme Court will continue to embrace this discredited concept if it fails to overturn all antisodomy laws.

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