Last edited: February 13, 2005

Texas Sodomy Case Is More About Equal Treatment

Key West Citizen, June 19, 2003
3420 Northside Dr., Key West, FL 33041
Fax: 305-292-7777

By Mandy Bolen,

KEY WEST—What does sodomy in Texas have to do with gay people’s adoption rights in Florida?

The two subjects have become linked in recent conversations about gay rights and a U.S. Supreme Court decision pertaining to a Texas sodomy law expected to be handed down this month.

Those who have been following the Florida lawsuit that challenges the state’s prohibition of gay couples from adopting children have said in recent months that they expect the 11th Circuit Court of Appeals, a federal court, to wait until the Supreme Court rules on the Texas case before handing down its judgment about adoption.

Nadine Smith, executive director of the advocacy group Equality Florida, spoke Sunday to PrideFest participants about the importance of the case, and said that gay rights advocates are planning to demonstrate either in support or opposition to the ruling. That demonstration will take place the day the nine-judge panel announces its decision, which is expected June 23 or 30.

So again, what does sodomy in Texas have to do with adoption in Florida?

Key West attorney Wayne Larue Smith is one of the plaintiffs in the Florida case seeking to end the ban on gay adoption in Florida. He, along with his partner Dan Skahen, have also been certified and successful foster parents for more than four years.

Smith explained the ties between the two cases on Monday, and emphasized that their connection has nothing to do with sodomy, but instead with the fact that in each case, homosexual people are singled out and governed differently.

The Texas “Homosexual Conduct Law” prohibits acts of intimacy, including oral and anal sex, between same-sex couples. It does not prohibit any such acts between a heterosexual couple as long as both participants are consenting adults.

The Florida law against gay people adopting children also pertains specifically to homosexuals.

“Can Texas single out homosexual activities and forbid those? That’s what the Supreme Court is deciding,” Smith said. “It becomes an equal protection issue. If the court says that Texas can’t do this because the state is treating a different group of people differently, then that ruling will affect our adoption case.”

Conversely, Smith said, if the Supreme Court rules that the state of Texas has shown that it has good reason to prohibit such behavior for one group of people, and upholds the law, it will also affect the adoption case in Florida.

“If it is decided on equal protection grounds, the Texas case will likely dictate the outcome of our case,” he said.

He also explained a brief history of sodomy rulings that could pertain to the Texas case. In the mid-1980s, Georgia’s sodomy law was challenged based on morality, even though it pertained to all people. The Supreme Court, in Bowers vs. Hardwick, upheld the law on the grounds of public morality through a ruling based on Rights to Privacy rather than Equal Protection, Smith said.

“In a sense, they said that the state can regulate what consenting adults can do behind closed doors,” he said.

If the Supreme Court decides to strike down the Texas law because of Rights to Privacy rather than Equal Protection for all people, the court would also have to overturn its Georgia decision because the court would have ruled differently on similar cases.

Florida also has a law against sodomy, but it is one that pertains to all couples, not just homosexuals.

Other states that ban sodomy for everyone include Alabama, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. Texas, Kansas, Oklahoma and Missouri prohibit oral and anal intercourse between homosexuals only.

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