Last edited: February 14, 2005

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
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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 intercourse."

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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