Court Weighs Sodomy Challenge
Data Lounge, March 21, 2003
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 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
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
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