Last edited: January 07, 2005

Supreme Court Weighs Sodomy Challenge

The Data Lounge, March 21, 2003

WASHINGTON—The constitutional challenge against the Texas “homosexual conduct” law that the Supreme Court will take up this week has galvanized traditional gay civil rights groups along with a number of traditionally libertarian organizations, The New York Times reports. “Libertarians argue that the government has no business in the bedroom or in the boardroom,” Roger Pilon of the Cato Institute told The Times. Dana Berliner of the Institute for Justice, another prominent libertarian group, agreed, saying the case was about more than gay rights.

“If the government can regulate private sexual behavior, it’s hard to imagine what the government couldn’t regulate,” Berliner said. “That’s almost so basic that it’s easy to miss the forest for the trees.”

The Texas case challenges a law that makes it a crime for people of the same sex to engage in “deviate sexual intercourse,” defined as oral or anal sex. In accepting the case, the justices agreed to consider whether to overturn a 1986 precedent, Bowers v. Hardwick, which upheld Georgia’s sodomy law.

Libertarian support for the repeal of the Texas law illuminates a divide running through conservative legal philosophy. More traditional conservative groups such as Pat Robertson’s American Center for Law and Justice, for example, have entered the case on the state’s side.

Court observers are fascinated by speculation over how a conservative libertarian-leaning justice like Clarence Thomas will approach the case.

The country is much changed since 1986, when the court decided Bowers v. Hardwick. Back then fully half the states in the country had criminal sodomy laws on their books, compared to just 13 now. Texas is one of four, along with Kansas, Oklahoma, and Missouri, with laws that apply only to people of the same-sex.

The Texas law is being challenged by John G. Lawrence and Tyron Garner, who were found having sex in Mr. Lawrence’s Houston apartment by police officers. The two men were held in jail overnight, prosecuted for breaking the sodomy statute and fined $200 each. Represented by the Lambda Legal, the two men challenged the constitutionality of the law.

The United States Supreme Court’s decision to take the case has been widely interpreted as an indication that the court is likely to rule against the state. If the justices do strike down the law, the impact of the decision will depend on what basis the law was thrown out on.

If the court finds the same-sex only aspect of the Texas law violates equal protection guarantees, the Bowers v. Hardwick decision might stand since the Georgia law on which it was based applied to both heterosexuals and homosexuals. If the court decides the Texas law violates certain rights to privacy, the court would have to overrule the 1986 precedent.

The Lambda brief filed on behalf of the plaintiffs urges the court to go further and rule that any law making private consensual sexual behavior a crime infringes the liberty protected by the Constitution’s due process guarantee.

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