The U.S. Supreme Court said Monday that it will consider whether states can punish people for engaging in same-sex sexual activity, a case that will test the constitutionality of sodomy laws in 13 states. The justices will review the prosecution of two men under a 28-year-old Texas law that makes it a crime to engage in same-sex intercourse. The Supreme Court has struggled with how much protection the Constitution offers American citizens in the bedroom. The court ruled 5-4 in 1986 that consenting adults have no constitutional right to private same-sex sexual activity, upholding laws that ban sodomy.
The high court faces several questions in the latest case. Among them: Is it an unconstitutional invasion of privacy for couples to be prosecuted for what they do in their own homes? Is it unconstitutional for states to treat gays and lesbians differently by punishing them for having sex while allowing heterosexual couples to engage in the same acts without penalties? Sodomy is defined as "abnormal" sex, typically including anal and oral sex. Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia. Texas, Kansas, Missouri, and Oklahoma punish only same-sex sodomy. These states argue that their sodomy laws, some dating back more than 100 years, are intended to preserve public morality. The laws are rarely enforced, however.
Lawyers for John Geddes Lawrence and Tyron Garner said the men were bothering no one when, in 1998, they were arrested in Lawrence's apartment, jailed overnight, and later fined under Texas's Homosexual Conduct Law, which classifies anal or oral sex between two men or two women as deviate sexual intercourse. The men's lawyers said the convictions would prevent them from getting certain jobs and would, in some states, require them to register as sex offenders. They were arrested after police responded to a false report of an armed intruder in Lawrence's apartment. Police entered the unlocked apartment and found the men having sex. Lawrence and Garner were fined $200 after pleading no contest to misdemeanor charges.
"The idea that a state may enter into American bedrooms and closely inspect the most intimate and private physical interactions...is a stark affront to fundamental liberty that the court should end," said one of the men's lawyers, Ruth E. Harlow, legal director of the New York-based Lambda Legal Defense and Education Fund. Harlow said in court filings that the latest census showed there to be more than 600,000 households of same-sex partners in America, including about 43,000 in Texas. She said the Texas law treats gays as second-class citizens.
William Delmore III, an assistant district attorney in Texas, said people who don't like the law should take it up with the Texas legislature, not the courts. He said same-sex sodomy has been considered criminal behavior for centuries. The conduct "could not conceivably have achieved the status of a fundamental right in the brief period of 16 years" since the Supreme Court last reviewed it, Delmore wrote in the state's court papers.
Over the past decade state courts have blocked sodomy laws in Arkansas, Georgia, Kentucky, Montana, and Tennessee. Last month a Louisiana appeals court upheld that state's 197-year-old law criminalizing all oral and anal sex. Delmore said the Texas law does not target only gays and lesbians but could also be used for bisexuals and heterosexuals "who are tempted to engage in homosexual conduct." The law is part of Texas's "communal belief that the conduct is wrong and should be discouraged," he wrote in his filing.