Sodomy
Case Will Have Wide Impact
The
Data Lounge, March 26, 2003
WASHINGTON—An overzealous pair of
Houston policemen, who arrested two adult men engaged in consensual sex in a
private residence, have set the stage for the most important court decision on
the rights of gay and lesbian Americans in a generation.
The U.S. Supreme Court today hears oral arguments in
Lambda Legal’s case challenging the constitutionality of Texas’s
“Homosexual Conduct” law, which criminalizes oral and anal sex by
consenting gay couples.
Justices will decide whether the Texas sodomy law
violates the equal protection and privacy rights of homosexuals, or whether
the law is, instead, a legitimate attempt by the state to uphold its view of
sexual morality, family values, and traditional marriage.
Backers of the Texas law assert there is no fundamental
right in the Constitution to engage in certain sexual activity. To strike down
the law, they say, could create such a right and lay the legal groundwork for
recognition of same-sex marriages.
Opponents say among the most fundamental of rights
guaranteed in the Constitution is the right to be left alone. The government
does not enjoy the unfettered power to intrude into the most intimate and
private aspects of what happens in American bedrooms, they say.
“This is the most important gay rights case in a
generation,” said Ruth Harlow of Lambda. “What we are asking for is to not
have the police prosecute you for choosing one particular way to express your
love for someone else in private.”
Conservatives fear that overturning the statute will lead
to broad changes in family status—changes that may undermine the favored
treatment of male-female marriage by state lawmakers
“[This case] could have broad implications not just for
the 13 states that have sodomy laws, but for the marriage laws in every
state,” a professor from Catholic University Law School told the Christian
Science Monitor.
In addition to Texas, three other states—Kansas,
Missouri, and Oklahoma—make it a crime for gay people to engage in sodomy.
Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South
Carolina, Utah, and Virginia make those same acts illegal for both gays and
heterosexuals.
The justices can take one of three actions to resolve the
case. They can uphold the Texas law, throwing the decision back to state
lawmakers. They can declare the law violates equal-protection guarantees by
treating gays differently, invalidating gay-only sodomy laws.
Or the court can issue a much broader ruling, declaring
American bedrooms to be protected by fundamental concepts of liberty and
privacy and off limits to state scrutiny. Such a decision would invalidate all
13 sodomy laws nationwide, and would overturn a 1986 court precedent upholding
Georgia’s sodomy law.
In bringing the Texas case, Lambda Legal asked the
justices to reconsider that decision, which Harlow said has done “tremendous
harm” to gay Americans for years.
“Since 1986, the nation has steadily moved away from
these laws,” Harlow said. “Society’s knowledge about gay people, gay
families and gay lives has increased exponentially since 1986, and we believe
a more informed view of constitutional protections for gay people can now
prevail.”
A decision in the case is expected in June.
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