Sodomy Laws – Revisited
Times, April 6, 2003
P. O. Box 2491, Roanoke, VA 24010
By Tom Teepen
It seemed as if a time warp had caught the U.S. Supreme
Court recently when it took up, again, the issue of the constitutionality of
The court upheld that constitutionality just 17 years
ago, in a Georgia case—though even then by only a 5-4 vote and a key member
of the majority, Lewis Powell, later came to believe the issue had been
At the time, most states still outlawed oral and anal
intercourse, though the laws were enforced, if at all, only whimsically or, in
order to harass gay men and lesbians, maliciously. Now, only 13 states cling
to their statutes and four of those bar sodomy only between—and, one
supposes, among—same-sex partners.
It is specifically because of Texas’s difficulty in
getting with the 20th century, especially with its second half, that the
justices have to revisit this issue, after the state’s Court of Criminal
Appeals upheld two convictions, and it may be a close thing again.
Because the Texas statute applies only to same-sex sodomy
and is indifferent to the same acts by heterosexuals, the other justices could
find the law unconstitutional under the 14th Amendment’s equal-protection
That would leave it to a future court to reconsider the
broader 1986 finding that a constitutional presumption of privacy does not bar
the states from governing the private, consenting sex lives of adults.
Indeed, that is precisely what Houston prosecutor Charles
A. Rosenthal Jr. still argued to the justices, asserting that a state “can
set bright-line moral standards for its people.”
Now, there’s a scary thought: state legislators, by
custom our most venal and panicky lawmakers, setting your moral dos and
don’ts by majority vote while religious pressure groups, “Repent Now”
pickets and ethical knockabouts work the hallways and the phones—and then
backing their moral instruction with the state’s police power.
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