A Landmark for Gay Rights
Oregonian, March 25, 2003
1320 SW Broadway, Portland, OR 97201
Fax: 503-294-4193, Email: Letters@news.oregonian.com
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 (Oregon’s law was repealed in 1972.)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
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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