Court
Test of Gay Rights vs. Traditional Values
Landmark sodomy case holds implications for privacy
rights and definition of marriage.
Christian
Science Monitor, March 24, 2003
1 Norway Street, Boston, MA 02115
Fax: 617-450-2317, Email: OPED@csps.com
By Warren Richey, Staff writer of The Christian Science
Monitor
WASHINGTON—Responding to a report
of a possible gunman, Houston police burst into an apartment and discover,
instead, two men engaged in a sex act.
The activity is consensual, and within the privacy of one
of the men’s own home. Nonetheless, the two are charged with violating
Texas’ homosexual-conduct statute that outlaws “deviate sexual intercourse
with another individual of the same sex.”
Both men, John Lawrence and Tyron Garner, are held
overnight in jail and fined $200.
The matter might have ended there, but the men decided to
appeal their case. They argued that Texas was violating the constitutional
rights of gays by prosecuting them for engaging in behaviors that are not
illegal under Texas law if practiced by heterosexual couples.
In a potential landmark case, the US Supreme Court will
examine Wednesday whether the Texas 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.
Supporters of the law say there is no fundamental right
in the Constitution to engage in certain homosexual acts. To strike down the
Texas law, they say, could create such a right and lay the legal groundwork
for recognition of same-sex marriages.
Opponents of the law say among the most fundamental of
rights guaranteed in the Constitution is the right to be let 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.
“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,” says Ruth Harlow of Lambda Legal Defense and Education
Fund, a gay-rights legal group representing the two men.
Some groups promoting family values and traditional
marriage see in the case the thin edge of a wedge that could undermine 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,” says Joshua Baker of the Marriage Law Project at Catholic University
Law School.
In addition to Texas, three other states—Kansas,
Missouri, and Oklahoma—make it a crime for gays to engage in sodomy. Nine
other states make those same acts illegal for both gays and heterosexuals. The
states are: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina,
South Carolina, Utah, and Virginia.
The justices can take one of three actions to resolve the
case. They can uphold the Texas law, stating that it is up to elected
lawmakers to grapple with such difficult social issues.
Second, they could declare that the law violates
equal-protection principles by treating gays differently. Such a ruling would
invalidate homosexual-conduct laws in four states, but might leave intact
similar, but broader, laws in the nine other states.
Finally, the court could issue a much broader ruling that
American bedrooms are off limits to state scrutiny because they are protected
by fundamental concepts of liberty and privacy that earlier courts have
identified in the Constitution. Such a ruling would invalidate all 13
homosexual-conduct laws nationwide, and would overturn a 1986 court precedent
upholding Georgia’s sodomy law.
The court’s current case, Lawrence v. Texas, is
significant because it could mark a turning point for gay rights in the US,
helping to eliminate laws that in many cases have been used to discriminate
against homosexuals in employment and parenting disputes.
From a libertarian perspective, the case is important
because it offers the court an opportunity to make clear that certain areas
should be off limits to government.
To supporters of sodomy laws, the case is an assault on
morality and the rule of law. It offers the court an opportunity to state that
local elected officials are in the best position to resolve such issues, they
say. “Nothing in this court’s ... jurisprudence supports recognition of a
constitutional right to engage in sexual misconduct outside the venerable
institution of marriage,” says William Delmore III, an assistant district
attorney in Harris County, in his brief on behalf of Texas.
In the past, the high court has recognized that
individuals enjoy a “liberty” interest in being free from government
interference in matters involving marriage, having children, raising children,
marital privacy, use of contraception, bodily integrity, and abortion. “The
conduct at issue in this case has nothing to do with marriage or conception or
parenthood and it is not on a par with those sacred choices,” Mr. Delmore
writes.
Lawyers for Mr. Lawrence and Mr. Garner disagree. “The
law’s discriminatory focus sends the message that gay people are
second-class citizens and lawbreakers, leading to ripples of discrimination
throughout society,” says Ms. Harlow in her brief to the court.
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