Court Considers Challenge to Sodomy Law
Reuters, March 27, 2003 http://www.nytimes.com/reuters/news/news-court-sodomy.html
WASHINGTON—In an important gay
rights case, the U.S. Supreme Court questioned on Wednesday whether a Texas
sodomy law violated privacy rights and unfairly targeted same-sex couples or
whether the state had a legitimate interest in setting moral standards.
The high court considered the “homosexual conduct,”
law which makes it a crime to engage in “deviate sexual intercourse,”
defined as oral and anal sex, even if it is consensual and in the privacy of a
person’s own bedroom.
The justices pressed the government attorney who defended
the law on how far a state could go in adopting laws that regulate morality by
The justices who appeared supportive of the law
questioned whether laws against adultery, rape or bigamy might be affected if
the high court declares the Texas law unconstitutional.
Paul Smith, representing two Houston men who challenged
the law, argued it violated privacy and equal protection rights, subjecting
gays to criminal penalties while allowing different-sex couples to engage in
the same conduct.
He urged the court to overturn its 1986 ruling that
upheld a Georgia sodomy law and that declared that homosexuals have no
constitutional right to engage in sodomy.
Smith first argued the American people take for granted
the fundamental right to engage in sexual conduct in the privacy of their
home, free from unwarranted government intrusion.
Smith’s second argument was the law unfairly singled
out same-sex couples while allowing heterosexual couples to engage in the same
conduct. He said the law treated gays as “second-class” citizens and
discriminated against them.
Chief Justice William Rehnquist replied, “Almost all
laws are based on disapproval of some people or some type of conduct. That’s
why people legislate.”
Rehnquist also questioned whether “states also could
prefer heterosexuals to homosexuals to teach kindergarten” if the Texas law
was struck down.
Justice Antonin Scalia also appeared concerned about
striking down the law. “Why is this different than bigamy?” he asked and
Scalia questioned whether adultery laws might also be rendered
Only four states—Texas, Kansas, Oklahoma and
Missouri—have sodomy laws that apply just to same-sex couples. Nine other
states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina,
South Carolina, Utah and Virginia—ban sodomy for everyone.
Charles Rosenthal, a district attorney for Harris County
in Texas, argued the case involved the “rights of states to determine their
own destiny” and the right to set moral standards.
But Justice Stephen Breyer questioned how far a state
could go and asked whether it could make cheating or “serious rudeness” a
crime. “I don’t think the state could pass anything in the name of
morality,” he said.
Justice David Souter also pressed Rosenthal on the harm
the law prevents. Rosenthal replied that individuals are harming themselves,
like taking drugs. Souter answered, “I don’t see the parallel.”
The high court will rule by the end of June.
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