Rights for Gays Faces Supreme Court Test
will be asked to throw out sodomy convictions of two Texas men as well as
extend constitutional privacy accorded heterosexuals.
Angeles Times, March
Times Mirror Square, Los Angeles, CA 90053
Fax: 213-237-7679 or 213-237-5319
David G. Savage, Times Staff Writer
gay equal rights movement, which has been steadily growing in strength, faces
a crucial test in the Supreme Court this week.
court has never said gays and lesbians are entitled to equal rights, and has
upheld laws branding them as criminals for having sex.
insult to injury, in a 1986 opinion the court described abhorrence of
homosexuality as time-honored and traditional. It would “cast aside
millennia of moral teaching” to say sex between gay men “is somehow
protected as a fundamental right,” then-Chief Justice Warren E. Burger said
in the case of Bowers vs. Hardwick.
17 years later, the court is being asked to cast aside Burger’s view as
bigoted and archaic.
civil rights leaders say public opinion regarding homosexuality has changed
dramatically since 1986. These days, the “real social and legal deviants”
are not gay people but “homosexual sodomy laws” that remain on the books
in 13 states, says the Human Rights Campaign, which calls itself America’s
largest gay and lesbian group.
Wednesday, the court will hear a Texas case that asks the justices not just to
throw out the prosecution of two men who were arrested for having sex in the
Houston home of one of the men, but to declare that the Constitution gives
same-sex couples the same rights to privacy and equality as heterosexuals.
a statement would be a milestone on the road to full equality, rights lawyers
is the most important gay rights case in a generation,” says Ruth E. Harlow,
a lawyer for the Lambda Legal Defense Fund. “We believe America has moved
beyond these [antisodomy] laws. And we’re hoping the court will say all
adults have the same right to privacy, and you can’t have a different rule
for gay people.”
Sept. 17, 1998, police received a report–false, it turned out–of a man
with a gun at an apartment complex, and they broke into the residence of John
Lawrence. They found him with Tyron Garner, and arrested both for violating
the Texas law against “deviate sexual intercourse.”
states, including California, repealed sodomy laws during the 1970s and 1980s.
But not Texas, which prosecuted Lawrence and Garner and secured fines of $200
think the court is behind the times and Texas is behind the times” on this
issue, says Harlow, who appealed Lawrence’s case to the high court.
symbolic significance of these antisodomy laws goes well beyond their role as
regulator of sexual conduct, legal experts say.
laws don’t send people to jail, but they are a brand of disapproval for gay
people. They are used across the board as arguments against them,” said
William B. Rubenstein, a UCLA law professor and an expert on sexual
in cases involving child custody, adoptions and public employment, antisodomy
laws are invoked against gays or lesbians, he said.
example, Linda Kaufman, an Episcopal priest and a lesbian who lives in
Arlington, Va., said she and her partner were trying to adopt a second foster
child from the District of Columbia. Adoption workers agreed they had a good
home and family, but Virginia officials cited “crimes against nature” in
saying Kaufman and her partner were unfit to adopt. Kaufman is suing the
the high court were to say these laws are irrational and discriminatory, it
would affect a wide variety of such cases, Rubenstein said.
2.8% of adult men and 1.4% of women identify themselves as gay, lesbian or
bisexual, according to the government’s National Health and Social Life
Survey. If accurate–and the Human Rights Campaign cites this survey as the
most reliable of its kind–it means the nation has about 4 million openly gay
men and 2 million lesbians.
case, Lawrence vs. Texas, has split conservatives.
have sided with Texas, saying marriage and family are threatened by an
equal-rights ruling for gays. However, libertarian conservatives say the
government has no business in the bedroom.
state lawyers say the court should consider dismissing the case. Failing that,
they say, the justices should rule there is no “constitutional right to
engage in extramarital sexual conduct.” If the court were to recognize such
a right, it could undercut or even invalidate laws against adultery, polygamy,
prostitution and incest, they say.
a ruling would “strike at the institution of marriage itself” and
“further push this nation toward sexual libertinism,” says the American
Center for Law and Justice, which is based in Virginia Beach, Va.
seeking equal rights for gays respond that they are arguing only for a
constitutional right of privacy among consenting adults. Public or commercial
transactions with prostitutes are not included, they say.
prominent libertarian groups–the Cato Institute and the Institute for
Justice–say the government should not be allowed to meddle in purely private
case is about the proper scope of and limits on government power more than it
is about homosexuality and homosexual conduct,” says the Institute for
Justice, a Washington group that has championed causes such as “school
choice” through vouchers.
the 1990s, the Supreme Court stayed away from most disputes over civil rights
for gay people. The justices repeatedly ignored appeals that challenged the
military’s ban on those who are openly gay.
rulings lean in opposite directions. In 1996, the court struck down a Colorado
voter initiative that voided all local ordinances related to the rights of
gays. In a 6-3 decision, the justices described the ballot measure as
irrational and discriminatory.
three years ago the court reversed the New Jersey courts and ruled in a 5-4
vote that the Boy Scouts were entitled to kick out a well-regarded scoutmaster
who said he was gay.
three justices remain from the 1986 ruling. They are Chief Justice William H.
Rehnquist and Justice Sandra Day O’Connor, who were in the majority, and
Justice John Paul Stevens.
O’Connor and Justice Anthony M. Kennedy, both Reagan appointees, voted to
strike down the Colorado initiative, and rights lawyers are hoping they will
join with the four liberal justices to rule against Texas in the new case.
ruling is not likely until June.
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