Pro and Con: Should the Supreme Court Uphold a Texas Law Banning
News-Leader, April 6, 2003
651 Boonville, Springfield, MO 65801
Pro: Ruling against the Texas law would
threaten institution of marriage, children and family.
On March 26 the Supreme Court heard the case of two
homosexual Texas men who were arrested for engaging in “deviate sexual
intercourse with another individual of the same sex.” Concerned Women for
America filed a “friend of the court” brief in support of the Texas sodomy
law. Missouri also has a similar homosexual sodomy law, which is there to
protect the institution of marriage and uphold a continuance of societal moral
Homosexual litigants in the Texas case are asking the
court to rule that the Texas law violates the Equal Protection Clause of the
14th Amendment to the U.S. Constitution. The CWA brief argues against the idea
of the unfairness of statutes that discriminate against a minority group. The
Texas statute does not violate a fundamental right of privacy or discriminate
against a minority class with an immutable characteristic such as race or
ancestry. As a class homosexuals have tremendous political, cultural and
economic power and do not meet the criteria of a minority class.
Homosexuality is a lifestyle of disease, dysfunction and
death. Protecting public health, safety and morals is a compelling reason to
prohibit same-sex deviant sexual intercourse. If the Supreme Court should
decide in favor of homosexual sodomy, it would encourage a highly dangerous
act that is linked to the spread of HIV and other STDs.
A ruling in favor of homosexual behavior would open the
door to other groups making the same claim based on their sexual
“orientation,” such as pedophilia, bestiality and transsexuality. It might
also remove another roadblock to homosexual activism in the schools.
One mother, who is a CWA member from St. Louis , wrote to
me recently that she was thankful that her son got out of the homosexual
lifestyle because his former male partner is now dying of AIDS. “But thanks
be to God, my son was spared because he got out in time,” she wrote.
The petitioners are claiming that states have no right to
enact moral laws and they want the court to reverse its 1986 ruling in Bower
v. Hardwick, which held that there is no constitutional right to engage in
homosexual sodomy. What Justice Byron White said then is still true: To claim
that homosexual sodomy is a fundamental constitutional right “implicit in
the concept of ordered liberty, is at best facetious.”
Furthermore, any claim that morality can’t be
legislated is to miss the point of this case. The homosexuals in the Texas
sodomy case are trying to legislate their brand of morality.
It adversely changes our culture to claim that
heterosexual and homosexual sex are moral equivalents. Stealth attempts to
usurp the godly morality of heterosexual marriage, trying to apply it to other
sexual relationships, cheapens the irreplaceable institution of marriage and
undermines its protections in law.
Con: Court should throw out harmful law in favor of equal
protection and due process for all citizens.
The U.S. Supreme Court should reverse its 1986 ruling in
Bowers v. Hardwick that the Constitution doesn’t protect homosexual sodomy.
The muddled and prejudiced 5-4 Bowers decision appears to criminalize being a
homosexual, thereby damaging citizens who happen to be gay or lesbian.
The court ought to follow three-quarters of the states,
which have already eliminated their sodomy laws, by deciding in Lawrence and
Garner v. Texas that the same-sex sodomy laws in Texas and three other states
( Oklahoma , Kansas and Missouri ) are unconstitutional. These laws
criminalize intimate conduct between same-sex partners that is legal between
men and women.
Narrowly construed, Lawrence concerns whether the Texas
law violates the Constitution’s “equal protection” clause.
In our legal system, Texas doesn’t have the required
legitimate interest to distinguish between homosexual and heterosexual sodomy.
The court has ruled disliking gay people doesn’t justify treating them
The Supreme Court may find more broadly that all sodomy
laws—both same-sex and different-sex—violate everyone’s “due
process” right to liberty and privacy. The conservative Cato Institute
argues that “America ’s founding generation established our government to
protect rather than invade fundamental liberties, the sanctity of the home and
interpersonal privacy.” These libertarians rightly claim no one’s privacy
should be invaded to force us all into the missionary position.
Texas argues that enforcing “morality” is a
legitimate state interest and that privacy only protects procreative bedrooms
of the married. The first position denies the established judicial role in
protecting minorities as classes of people who must be treated equally. The
second is unrealistic and unsupported.
Texas prosecutors are joined by unwelcome friends who,
changing the subject when they are losing the argument, say attempting to
reverse Bowers “is about firing scud missiles” at marriage. Groups such as
Concerned Women of America recognize “gay marriage” is less popular than
equal rights. These propagandists also erroneously assert reversing Bowers
pushes us down the “slippery slope” to polygamy and pedophilia.
Homosexual sodomy laws brand as criminals millions of
productive people, denying their rights as citizens, parents and employees.
Real human harm occurs when moral people are wrongly stigmatized as sex
Many Biblical scholars believe Sodom ’s sin was
unkindness to strangers—intolerance of difference—not attempted deviant
sexual conduct with angels. The Supreme Court can’t rule on the Bible, but
it can throw away a harmful precedent outside its equal protection and due
process traditions. Doing so would celebrate America ’s commitment to
fairness, equality and freedom.
Letter: Laws Do Not Have ‘Ancient Roots’
News-Leader, April 8, 2003
Re: April 6 Pro/Con on the Texas sodomy law.
In her argument against the repeal of same-sex sodomy
laws, Ms. Davis states that such laws are necessary to “uphold a continuance
of societal moral behavior.” Other opponents of repeal have argued that such
laws have “ancient roots” in Western civilization and from the beginning
of our country based largely on religious beliefs.
In fact, anti-same-sex sodomy laws are a relatively
recent historical development. Previous laws condemned opposite-sex sodomy
from disapproval of non-procreative sex.
It is only when medical literature in the late 19th
century identified a “homosexual identity” did laws go specifically after
same-sex couples. Most of these laws peaked in the second half of the 20th
century—concomitantly with other forms of discrimination against gays.
The specific Texas law that Ms. Davis supports has its
“ancient roots” in 1973.
—Holly Baggett, associate professor of history,
Southwest Missouri State University
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