Not Just About Sex
The Supreme Court agrees to hear a case that could be a major turning
point for gay rights
U.S. News & World
Report, December 16, 2002
2400 N St. N.W., Washington, DC 20037-1196
By Dan Gilgoff
When J.B. lost the custody battle for her 6-year-old daughter, she felt as
much like a "second-class citizen" as she did a broken-hearted mom.
In 1998, the Alabama Supreme Court ruled that J.B.ís lesbian relationship
with her live-in partner was "neither legal in this state, nor moral in
the eyes of most of its citizens" and that she was therefore not as
capable of raising her child as her remarried ex-husband. By moving in with
her girlfriend, J.B. (who asked that her full name not be used) violated
Alabamaís anti-sodomy law, which prohibits "deviate sexual
Now, criminal sodomy laws across the country may be in for an overhaul.
Last week, the Supreme Court announced it would hear the case of two Texas men
arrested and fined in 1998 for having consensual sex in one of their homes.
The men appealed their convictions on the grounds that Texasís sodomy law,
in addition to violating personal privacy, violates the Constitutionís equal
protection clause by prohibiting anal and oral intercourse between homosexuals
while permitting the same sexual conduct for straight people. "This case
has nothing to do with giving gay people an affirmative right," says Ruth
Harlow, lead counsel for the petitioners. "Itís about allowing gays to
live their lives without being branded as criminals."
The case could produce the most significant Supreme Court ruling on gay
rights since 1986ís Bowers v. Hardwick, in which a divided court
ruled that the right to privacy does not give homosexuals the right to have
sex in their own homes. Since then, the number of states with criminal sodomy
laws has dropped from 24 to 13, with four (Texas, Kansas, Missouri, and
Oklahoma) applying those laws solely to homosexuals. Gay-rights advocates say
that even in states that ban sodomy between both same-sex and opposite-sex
partners, the law is invoked almost exclusively against gays. "Even in a
landlord-tenant dispute," says Alabama lawyer David Gespass, "a
landlord could say simply that a gay tenant is committing illegal acts."
In a brief requesting that the high court reject the current case, the
state of Texas argued that itís up to the states, not the federal
government, to decide "whether particular conduct is still regarded as
immoral to the extent that it warrants the imposition of a legal
sanction." Pro-Family Law Center Director Scott Lively says the Texas law
reflects "a need to protect the natural family from any influence that
would harm it." Gay activists reject such arguments. "I think the
case can be made that thereís no legitimate government interest thatís
served" by Texasís sodomy law, says Georgetown Law Prof. Chai Feldblum.
"And that the Ďprotecting the public moralityí argument is just a
cover for our prejudices."
For her part, J.B. has grown leery of discussing her sexual orientation.
"The whole experience just silenced me," she says. Still, this
spring she plans to take advantage of a more compatible state law: After 10
years of living together, she and her partner will fly to Vermont to be joined
in a civil union.
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