Last edited: February 14, 2005

Supreme Court Considers Challenge to Sodomy Law

Reuters, March 27, 2003

By Reuters

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 public.

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 unconstitutional.

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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