Last edited: February 14, 2005

Sodomy Laws Face High Court Scrutiny

Chicago Tribune, December 30, 2002
435 N. Michigan Avenue, Chicago, IL 60611
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By Judith Graham, Tribune national correspondent

ST. LOUIS—Ask prosecutor Robert Wilkins about Missouri’s same-sex sodomy law and he is unusually frank. "I think the law is past its time," said the attorney for Jefferson County, about 20 miles south of downtown St. Louis. "Private consensual sex between adults is none of our business."

Those are strong words from a lawyer pursuing a notorious sodomy case under way in the state.

But they go straight to the heart of one of the most controversial issues coming before the U.S. Supreme Court next year: whether laws banning sexual contact between homosexuals are a violation of essential rights or are a permissible regulation of public morality.

Four states—Missouri, Texas, Oklahoma and Kansas—have so-called same-sex sodomy laws, which the Supreme Court has agreed to review. These statutes impose criminal sanctions on certain types of sexual contact between gay men or lesbians, primarily anal and oral sex, that are entirely legal for heterosexuals.

Another nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia—have sodomy laws that apply to all adults, gay or straight, but that tend to be enforced selectively against homosexuals.

Critics say that distinction is unfair. They argue that a moral double standard is being imposed in states with same-sex prohibitions, depriving gay and lesbian citizens of their right to intimate relations and resulting in unequal protection under the law.

What’s more, these laws are widely used to justify other kinds of widespread discrimination against homosexuals, critics contend, including denial of custody for gay parents in divorce cases and arbitrary terminations from employment.

"What you have are different criminal rules for the same conduct, based on who people are," said Patricia Logue, senior counsel for the Lambda Legal Defense and Education Fund, a national civil liberties group that is challenging Texas’ same-sex sodomy laws before the Supreme Court. "You don’t have to be wildly pro-gay to realize there’s a basic unfairness there."

Supporters of the laws disagree, arguing that society has the right to declare certain behavior immoral, and that it has long recognized legal differences between heterosexuals and homosexuals in areas such as marriage law. Opposition to homosexual sodomy can be found in religious texts and common law, they note. And laws against certain sexual practices such as adultery, pedophilia and incest are common.

Supporters also point out that the Supreme Court in 1986 declared there was no fundamental constitutional right to homosexual sodomy in a Georgia case known as Bowers vs. Hardwick. That 5-4 decision rejected the notion that an essential right to privacy shielded adult gays from government interference in their sex lives.

"It’s hard to imagine the people who wrote the Constitution could imagine a right to engage in conduct that was a serious criminal offense both at the time the Constitution was drafted and in all 50 states as late as 1961," said Bill Delmore, a Houston assistant district attorney. His office is defending Texas’ same-sex sodomy law before the Supreme Court.

But there has been a change in the nation’s legal landscape. When the court ruled on Bowers vs. Hardwick, 24 states had sodomy laws in place; now, 13 do.

In July, Arkansas joined the majority when its highest court overturned a same-sex sodomy statute.

Texas case under scrutiny

It would be difficult to find a case where the issues are more compelling than the one the U.S. Supreme Court will consider.

John Lawrence and Tyron Garner were having anal intercourse at Lawrence’s home in Houston in September 1998 when police, responding to a call about an armed man "going crazy," broke in and discovered them. A hostile acquaintance had made the call and later was convicted of filing a false police report.

The two men were arrested, held for 24 hours and fined $200 each after pleading no contest to charges of homosexual sodomy.

The misdemeanor offense disqualified Lawrence and Garner from being employed in more than a dozen professions, from nursing to driving buses, and would require the men to register as sex offenders in Idaho, Louisiana, Mississippi and South Carolina if they ever decide to live there.

Lawrence and Garner will not speak publicly about their experiences. But the two men decided to challenge the Texas sodomy statute on the grounds that it violated their right to privacy and equal protection under the law. After losing in the Texas Court of Appeals, Lawrence and Garner had to wait more than a year for the Texas Court of Criminal Appeals’ ruling, which upheld the law. In early December, the U.S. Supreme Court announced it would hear their appeal.

Harris County prosecutors think that’s the wrong body to reconsider the Texas law. "We’re not cheerleaders for this statute at all; we’re just doing our job," Delmore said. "But we believe the wisdom of this statute is for the Legislature to reconsider, not the Supreme Court, and especially not if the potential to create a new constitutional right is at stake."

Outside of their interest in upholding public morality, states have a vital interest in protecting public health, argues Richard Ackerman, litigation counsel for the United States Justice Foundation, a conservative organization in California that filed an amicus brief in support of Texas.

"Anal sex and sodomy are behaviors that increase a person’s chance of ending up with a loathsome and deadly disease: AIDS," Ackerman said. "The government needs to retain the right to regulate conduct that can endanger the public."

Gay rights organizations hope the Supreme Court will find reason to overturn the Texas laws, in part because of its precedent-setting 1996 ruling in a Colorado case known as Romer vs. Evans. That decision struck down Colorado’s Amendment 2, which prohibited cities and counties from enacting ordinances that extend civil-rights protections to homosexuals.

"If you follow the argument in Romer vs. Evans, the court said a state cannot single out a group and deny them rights or infringe on their rights without a good reason. And it also said that simply disapproving of that group isn’t a sufficiently good reason," said Kevin Layton, general counsel of the Human Rights Campaign, an organization that backs gay rights.

This equal protection argument is "what really sets this [new Supreme Court] case apart from Bowers," agrees Logue of the Lambda fund.

A difference in treatment

The controversial lawsuit that Wilkins is prosecuting in Missouri illustrates how same-sex sodomy laws can treat people performing similar actions very differently.

During a raid last March in Jefferson County, police discovered six men and a woman having sex in a private theater behind an adult book store. The men were arrested for having sex with each other; the woman, who is married to one of the men, was released without charges because all of her sexual contacts in the theater were heterosexual.

Complicating matters, the men’s names and photographs were displayed on the newscast of a local television station. At least one man’s wife found out about his sexual activities this way; another man found himself the target of anti-gay ridicule.

"My argument is that nobody ought to be in a public place engaged in sexual conduct with more than one person," Wilkins said. He never would have prosecuted if the men and women had been in one of their own homes, with no one watching, he says. "But that said, does it really make sense to treat these men and this woman so differently?"

Only if your basic purpose is to discriminate against homosexuals, answers Denise Lieberman, legal director of the American Civil Liberties Union of Eastern Missouri, which is representing four of the men and hopes to bring the case before the state’s Supreme Court.

In Missouri, attempts to extend civil-rights protections to homosexuals in matters of employment, housing or public accommodations inevitably meet with the question, "How can we extend these rights to people who are considered criminals under our laws?" she says.

Law plays role in custody fight

Karen Pate, 33, of St. Louis faced that view in February 1995 during a protracted custody dispute with her husband, whom she was divorcing, and his parents over her daughter, then 4 years old.

A lesbian who came out after her marriage collapsed, Pate said her father-in-law, a Pentecostal minister, could not endure the thought that his granddaughter would be exposed to what he considered immoral practices.

For five months, the girl was not allowed to visit what Pate’s in-laws called her mother’s "ungodly home" while a custody battle raged. Assigned parental rights by Pate’s estranged husband, the grandparents tried to wrest custody of the child from Pate, whom they labeled an unfit mother.

Backing up their claims were Missouri’s sodomy laws. "Let’s be honest. If I didn’t have a child, no one would arrest me," Pate said. "But if I’m a lesbian who wants to get out of a bad marriage and still raise my child, this law lets people use my lifestyle against me."

Pate’s former husband and his parents could not be reached for comment because a court gag order forbids their names from being publicly released.

Under a settlement reached in 1996, Pate gained custody of her daughter. She is one of the lucky few, she and Missouri gay-rights advocates say.

"I know so many lesbians who walk away or who end up giving up because the field is stacked against them," Pate said. "The mentality is you’ve violated a code of conduct and therefore, you don’t have any rights, including the right to your own child."

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