Last edited: December 08, 2004

Sodomy Laws Revisited

Washington Post, December 3, 2002
1150 15th Street NW, Washington, DC 20071

The Supreme Court yesterday agreed to reconsider its ugly 1986 decision upholding state bans on homosexual sex. Back then, the court held that the right to privacy did not protect consenting adults in their own bedrooms from the criminal law. But the court did not consider the far better argument against these noxious laws: that they irrationally discriminate against gay men and lesbians who are doing no harm to anyone. The current case, which involves Texas’s law against "deviate sexual intercourse with another individual of the same sex," offers a good opportunity for some sober second thoughts.

In 1998 police were called to the apartment of John Lawrence by reports that an armed person inside was "going crazy." When they entered, they found no weapons, just Mr. Lawrence and Tyron Garner having sex. Instead of just leaving, they arrested the two, held them in custody until the following day, and prosecuted them. Under Texas law, homosexual sodomy—but not heterosexual sodomy—is a misdemeanor, and the two were fined $200. A Texas appeals court upheld the law, and Texas’s highest court refused to consider the matter. So the two appealed to the Supreme Court, arguing both that its prior holding on privacy was wrong and that Texas’s law violates federal equal protection guarantees.

The latter argument certainly should prevail. In most states with sodomy laws, certain sexual acts are crimes irrespective of whether they are performed homosexually or heterosexually. These are terrible laws that authorize the grossest invasions of privacy. But the Texas statute—along with laws in three other states—goes a step further. The entire purpose is to stigmatize homosexuality. Under the Constitution, a state must have a rational reason to treat groups of people differently. Texas justifies its law as an effort to ensure public morality and family values. The lower court, in accepting that rationale, noted helpfully that the Texas Legislature regulated morality all the time, having "outlawed behavior ranging from murder to prostitution precisely because it has deemed these activities to be immoral." But last we checked, murder was outlawed primarily to prevent people from getting killed. And not even in Texas is murder a crime for some people and not for others. Laws that are passed to criminalize gay sex—or that are enforced overwhelmingly against gays or used to brand gays as presumptive criminals—are not reasoned moral statements. They are discrimination, pure and simple, and the Supreme Court should say so.

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