Last edited: January 07, 2005

A Landmark for Gay Rights

The Oregonian, March 25, 2003
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This month, the U.S. Supreme Court will hear arguments in Lawrence v. Texas, a case closely watched by gay Americans and civil-rights activists around the country.

It’s a chance to rectify a historic injustice. The court should seize the chance.

In 2003, it’s hard to believe that 13 states retain antisodomy laws on their books, permitting prosecution of adults for having sex in their own homes. (Oregon’s law was repealed in 1972.) All 13 enforce such laws, in practice, only against homosexuals; four of the states spell out that their bans on sodomy apply to gays alone. Texas, for instance, explicitly prosecutes what it calls “homosexual conduct.”

The Texas case, scheduled for arguments Wednesday, could erase a blot on the Supreme Court’s civil-rights record, created 17 years ago, when the court had a chance to overturn Georgia’s antisodomy laws but upheld them instead. Police following up on another crime entered the home of a gay bartender, when he was having sex. Although they didn’t find what they were looking for, the man and his partner were charged with sodomy, then punishable with a long prison sentence.

Even in 1986, any rationale for keeping antisodomy statutes on the books was hard to find. But the Supreme Court ruled, 5-4, that states’ rights took precedence over homosexuals’ rights to privacy.

If the court’s decision in Bowers v. Hardwick seemed wrong at the time, it has only grown worse in retrospect. Acceptance of gays has risen, and same-sex households have become increasingly widespread.

The Texas case involves two Houston men, John Lawrence and Tyrone Garner, who were having sex when police entered Lawrence’s apartment in 1998, acting on a tip about a gunman. When they found no violent crime in progress, police arrested the two for sodomy. They were jailed, fined and would now—appallingly—be forced to register as sex offenders in some states.

It’s true that antisodomy statutes are rarely enforced, and for that reason, many Americans consider them harmless, archaic. But as both of these Supreme Court cases illustrate, antisodomy statutes are not inert. Police fall back on them when other crimes fail to materialize or when they want to fend off questions about their own conduct. For police, sometimes the best defense isn’t a good offense—it’s a bad offense, a small offense or any chargeable offense on the books.

The harm goes deeper, however. Antisodomy statutes (and their upholding in Bowers v. Hardwick) have been used as an excuse to crack down on homosexuals in public places because they’re ostensibly “soliciting” a felony; to squash visitation rights for gay parents, because their children could be exposed to “criminal” activity; to prevent gays from being foster parents; and to keep gays from getting law-enforcement jobs since they’re supposedly engaged in unlawful conduct.

Antisodomy laws make gays into “presumptive criminals,” a national gay advocacy group writes in its brief on the Texas case, justifying “myriad forms of discrimination.” They change the climate, making gays into second-class citizens, scaring some of the nation’s 600,000 same-sex families into secrecy.

Texas, meanwhile, argues that it’s within its rights to prosecute two gay men as a “symbolic expression of disapproval.” This seems thin. As cover for a state’s majority to discriminate against members of a minority, punishing them for private behavior in their own homes, we don’t think this rationalization will withstand scrutiny.

Not under the U.S. Constitution. Not in 2003.

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