Hears Suit on Sodomy Law Gays Argue that Statute Violates Privacy Right
March 27, 2003
Box 2378, Boston, MA 02107
By Lyle Denniston, Globe Correspondent
WASHINGTON—The Supreme Court
carefully weighed yesterday whether to grant some constitutional protection to
gays and lesbians when they engage in private sexual activity.
An intense hour of exchanges with lawyers showed that the
justices take seriously an argument that same-sex couples should have a right
to be treated equally when the government seeks to regulate sexual conduct in
their own homes.
But only a few of the justices showed an active interest
in an argument for creation of a wide-ranging new constitutional right of
privacy that would shield most homosexual conduct from government control or
prosecution. To establish such a broader right, the court would have to
overrule a controversial 1986 decision rejecting that notion.
Several of the justices were critical of a Texas law that
makes it a crime to engage in sodomy, but only when the act involves
individuals of the same sex, one of only four such laws remaining on the books
across the nation.
Justice Stephen G. Breyer, voicing deep skepticism about
the Texas law, suggested that it was based on nothing more than simple dislike
of homosexuals. Breyer likened Texas’s action to a story about a 17th
century English student who, reacting to discipline by a professor, wrote:
“I do not like thee, Dr. Fell, the reason why I cannot tell.”
“I don’t see what this has to do with marriage,”
Breyer said. “I don’t see what it has to do with children. I don’t see
what it has to do with procreation. So what is the justification for it?”
The prosecutor, Charles A. Rosenthal Jr. of Houston,
replied, “Texas has a right to set moral standards.”
Breyer countered that, if that were the standard, a state
could criminalize telling lies at the dinner table, cheating, or being rude.
The Texas law drew the apparent support of only Chief
Justice William H. Rehnquist and Justice Antonin Scalia. The chief justice
wondered aloud whether, if the Texas law were struck down, “states could not
prefer heterosexuals to homosexuals to teach kindergarten children.”
The Texas case, taken to the court by two Houston men who
were convicted of sodomy and fined $125 each, is considered by gay rights
advocates as a major test of the court’s willingness to move away from its
sharply worded 1986 rejection of homosexual rights in a 5-4 decision, Bowers
Only three justices then on the court remain on the
bench: Rehnquist and Justice Sandra Day O’Connor, who were in the majority,
and Justice John Paul Stevens, who was a dissenter. O’Connor said little
yesterday to show her current thinking, but Stevens joined actively in
questioning the validity of the Texas law.
Anthony M. Kennedy—another justice who, like
O’Connor, may hold a swing vote if the court divides closely on the Texas
law—gave no hint of his reaction, but did comment that the fate of the 1986
case was at stake in the new case.
For 25 years, a gay rights advocacy group, the Lambda
Legal Defense Fund, has been attacking state sodomy laws as unconstitutional
infringement on the personal rights of homosexuals. The attacks have led to
nullification or repeal of sodomy laws in 37 states. Of the 13 laws still in
existence, nine ban sodomy for all types of partners, and four ban it only for
Scalia suggested yesterday that the trend does not
justify nullifying the laws that remain. If all 50 states had laws against
flagpole sitting and if almost all were repealed, that would not make
flagpole-sitting a constitutional right, he said.
Paul M. Smith, a Washington lawyer for the challengers to
the Texas law, said the court should fashion constitutional protection for the
kinds of human activity that play a basic role in people’s lives, a role
akin to “defining their own lives.” Sexual intimacy, he said, is such an
Smith urged the court to overrule the 1986 decision,
saying that “the American people have moved on” in their attitudes about
homosexuality. “This is an area where the court should go back and
reconsider,” he said.
The court is expected to decide the case before the end
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