Last edited: January 03, 2005

Court Hears Suit on Sodomy Law Gays Argue that Statute Violates Privacy Right

Boston Globe, March 27, 2003
Box 2378, Boston, MA 02107
Fax: 617-929-2098

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 v. Hardwick.

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 homosexuals.

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 activity.

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 of June.

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