By Advocate.com Editors
Originally published on Advocate.com March 28 2003 1:00 AM ET
The Supreme Court should reverse course and strike down a ban on same-sex sexual activity as outdated, discriminatory, and harmful, a lawyer for two men arrested in their bedroom argued Wednesday. The court appeared deeply divided over a Texas law that makes it a crime for gay couples to engage in sex acts that are legal for heterosexual couples.
The court was widely criticized for a ruling 17 years ago that upheld a similar sodomy law. States should not be able to single out one group and make their conduct illegal solely because the state dislikes that conduct, lawyer Paul Smith argued for the Texas men. "There is a long history of the state making moral judgments," replied Justice Antonin Scalia. "You can make it sound very puritanical," but the state may have good reasons, Scalia said. Added Chief Justice William H. Rehnquist: "Almost all laws are based on disapproval of some people or conduct. That's why people regulate."
Justice Stephen Breyer challenged Houston prosecutor Charles Rosenthal to justify why the state has any interest in peeping into the bedrooms of gay people. "Why isn't that something the state has no business in, because it isn't hurting anybody?" Breyer asked. The state has an interest in protecting marriage and family and promoting the birth of children, Rosenthal replied. "Texas can set bright-line moral standards for its people."
A large crowd stood in line outside the court before oral arguments were presented in hopes of getting a scarce seat for one of the court's biggest cases of the year. A knot of protesters stood apart, holding signs reading "AIDS is God's revenge" and "God sent the sniper," among other messages.
State sodomy laws, once universal, now are rare. Those on the books are infrequently enforced but underpin other kinds of discrimination, lawyers and gay rights supporters said. "We truly hope the Supreme Court in its wisdom will remove this mechanism that has been used for so long to obstruct basic civility to gay and lesbian people," said Elizabeth Birch, executive director of the gay rights organization Human Rights Campaign.
In 1986 a narrow majority of the court upheld Georgia's sodomy law in a ruling that became a touchstone for the growing gay rights movement. Even then the court's decision seemed out of step and was publicly unpopular, said Harvard law professor Laurence Tribe, who argued on the losing side of the case. "We're now dealing with a very small handful of statutes in a circumstance where the country, whatever its attitudes toward discrimination based on sexual orientation, [has reached] a broad consensus that what happens in the privacy of the bedroom between consenting adults is simply none of the state's business."
As recently as 1960, every state had a sodomy law. Since then the statutes have been repealed by lawmakers or blocked by state courts in 37 states. Of the 13 states that still have sodomy laws on the books, four--Texas, Kansas, Oklahoma, and Missouri--prohibit "deviate sexual intercourse," defined as oral and anal sex, between same-sex couples. The other nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia.
An unusual array of organizations is backing the two Texas men. In addition to a long list of gay rights, human rights, and medical groups, a group of conservative Republicans and the libertarian Cato Institute and Institute for Justice argued in friend-of-the-court filings that government should stay out of the bedroom. "This case is an opportunity to confirm that the constitutional command of equal protection requires that gays be treated as equal to all other citizens under the law, subject to neither special preferences nor special disabilities," the brief for the Republican Unity Coalition, a gay-straight political alliance, read.
On the other side, the Texas government and its allies say the case is about the right of states to enforce the moral standards of their communities. "The states of the union have historically prohibited a wide variety of extramarital sexual conduct," Texas authorities argued in legal papers. Nothing
in that legal tradition recognizes "a constitutionally protected liberty interest in engaging in any form of sexual conduct with whomever one chooses," the state argued. Conservative legal and social organizations, religious groups, and the states of Alabama, South Carolina, and Utah back Texas in the case.
The case began in 1998, when a neighbor tricked police by calling in a false report of a black man "going crazy" in John Geddes Lawrence's apartment. Police smashed their way in and found Lawrence having anal sex with another man, Tyron Garner. Although Texas rarely enforces its sodomy law, officers decided to book the two men and jail them overnight on charges of "deviate sexual intercourse with another individual of the same sex." The men were each fined $200 plus court costs.