Last edited: January 25, 2005

Sodomy Laws – Revisited

Roanoke Times, April 6, 2003
P. O. Box 2491, Roanoke, VA 24010
Fax: 703-981-3204

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 sodomy laws.

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 wrongly decided.

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 clause .

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.

  • Tom Teepen is an Atlanta-based columnist for Cox Newspapers.

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