Last edited: February 14, 2005

Texas’ Gay-Sodomy Law Argued in Supreme Court

Washington Times, March 27, 2003
3600 New York Avenue NE, Washington, DC, 20002
Fax: 202-269-3419

By Frank J. Murray, The Washington Times

A district attorney fighting to preserve the Texas statute outlawing homosexual sodomy told the Supreme Court yesterday that overturning the law would jeopardize all state laws that restrict marriage to a bond of a woman and a man.

“Victory in this case would make marriage laws subject to constitutional challenge,” Harris County District Attorney Charles A. Rosenthal Jr. said in closing his half-hour plea to preserve the convictions of two men arrested in bed by Houston police under a law he called a “bright-line moral standard” based on Texans’ beliefs.

Mr. Rosenthal flatly contradicted the homosexual activists’ central argument that arresting them for sex practices that are legal among heterosexuals denies the due process guaranteed by the 14th Amendment.

“It’s not an equal-protection violation because this court has never recognized a fundamental right to engage in extramarital sexual conduct,” Mr. Rosenthal said, adding that sodomy between heterosexuals “can lead to marriage and procreation” and thus further a legitimate state interest.

Washington lawyer Paul M. Smith, who is cooperating with the Lambda Legal Defense Fund to represent John G. Lawrence and Tyron Garner, who were fined $200 each for the 1998 incident, countered by calling the law discriminatory.

“It’s a discriminatory morality ... by a state that does not penalize in any way adultery or sodomy by persons of the opposite sex,” Mr. Smith said. “We have a tradition of privacy for sex by couples in their home.”

Mr. Smith also said the convictions under appeal were based on laws in every state as recently as 1961, but he said 37 states have abandoned them because they are outside “basic American values.”

“That depends on what you mean by our ‘basic American values,’” responded Justice Antonin Scalia, who dominated the aggressive questioning of both sides. “Suppose all the states had laws against flagpole-sitting and most were repealed. Does that make flagpole-sitting a fundamental right?”

“Almost all laws are based on disapproval of some people or conduct. . . . Certainly the kind of conduct we’re talking about has been banned for a long time,” Cheif Justice William H. Rehnquist said to counter Mr. Smith’s claim that tradition is on his side.

Mr. Smith said the nation has increasingly accepted homosexuality over the past 30 years.

“The court has not been insensitive to what the world is like,” Mr. Smith said. “The American people have moved on to the point that right is taken for granted.”

Justice Scalia replied: “You could say the same thing about adultery.”

Mr. Smith ridiculed as hypocritical the public-health rationales raised by Texas. He said any physical harm caused by anal intercourse would damage heterosexuals as much as homosexuals, but was not forbidden for heterosexuals, and that “some of the safest sexual activity imaginable” was banned by outlawing lesbian sexual relations.

“If there were a harm beyond moral disapproval, the state would prohibit it for everyone,” Justice David H. Souter said.

Justice Ruth Bader Ginsburg seemed to agree, joining Justice Stephen G. Breyer in making points that favored Mr. Smith’s clients and attached police intrusion into bedrooms.

“Sodomy has been harmful to thousands of people because they fear they might be prosecuted,” Justice Ginsburg said.

Mr. Smith seeks to nullify the laws of Texas and three other states—Kansas, Oklahoma, and Missouri—where anti-sodomy statutes apply solely to homosexuals. He also implored the court to reverse its 1986 Bowers v. Hardwick decision, a 5-4 ruling that allowed states to maintain anti-sodomy laws that apply to everyone regardless of sexual orientation.

Nine states still have such general laws banning consensual sodomy, including Virginia.

In other action . . .

  • This story is based in part on wire service reports.

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