Libertarians
Join Liberals in Opposing Sodomy Law
New
York Times, March 19,
2003
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By
Linda Greenhouse
WASHINGTON—The
constitutional challenge to the Texas “homosexual conduct” law that the
Supreme Court will take up next week has galvanized not only traditional gay
rights and civil rights organizations, but also libertarian groups that see
the case as a chance to deliver their own message to the justices.
The
message is one of freedom from government control over private choices,
economic as well as sexual. “Libertarians argue that the government has no
business in the bedroom or in the boardroom,” Roger Pilon, vice president
for legal affairs at the Cato Institute, said today, describing the motivation
for the institute, a leading libertarian research organization here, to file a
brief on behalf of two gay men who are challenging the Texas law.
Dana
Berliner, a lawyer for the Institute for Justice, another prominent
libertarian group here that also filed a brief, said, “Most people may see
this as a case purely about homosexuality, but we don’t look at it that way
at all.” The Institute for Justice usually litigates against government
regulation of small business and in favor of “school choice” tuition
voucher programs for nonpublic schools.
“If
the government can regulate private sexual behavior, it’s hard to imagine
what the government couldn’t regulate,” Ms. Berliner said. “That’s
almost so basic that it’s easy to miss the forest for the trees.”
The
Texas case is a challenge to a law that makes it a crime for people of the
same sex to engage in “deviate sexual intercourse,” defined as oral or
anal sex. In accepting the case, the justices agreed to consider whether to
overturn a 1986 precedent, Bowers v. Hardwick, which upheld a Georgia sodomy
law that at least on its face, if not in application, also applied to
heterosexuals.
While
the Texas case has received enormous attention from gay news media
organizations and other groups that view the 1986 decision as particularly
notorious, it has been largely overshadowed in a busy Supreme Court term by
the challenge to the University of Michigan’s affirmative action program.
The justices accepted both cases on the same day last December, and briefing
has proceeded along identical schedules. The Texas case will be argued March
26 and the Michigan case six days later, on April 1.
Although
libertarian-sounding arguments were presented to the court as part of the
overall debate over the right to privacy in the Bowers v. Hardwick case, they
were not the solitary focus of any of the presentations then. The Institute
for Justice had not yet been established, and the Cato Institute, which dates
to 1977, had not begun to file legal briefs. Whether the arguments will
attract a conservative libertarian-leaning justice like Clarence Thomas, who
was not on the court in 1986, remains to be seen.
More
traditional conservative groups have entered the case on the state’s side,
among them the American Center for Law and Justice, a group affiliated with
the Rev. Pat Robertson that is a frequent participant in Supreme Court cases.
The
split among conservatives demonstrates “a diversity of opinion among our
side,” Jay Alan Sekulow, the center’s chief counsel, said today. He said
the decision to come in on the state’s side presented a “tough case, one
that we approached with reluctance.” He said he decided to enter the case
after concluding that acceptance of the gay rights arguments by the court
might provide a constitutional foundation for same-sex marriage.
The
marriage issue also brought other conservative groups into the case on the
state’s side. “The Texas statute is a reasonable means of promoting and
protecting marriage–the union of a man and a woman,” the Family Research
Council and Focus on the Family told the court in a joint brief.
While
the Texas case underscores the split between social and libertarian
conservatives, it is evident at the same time that the alliance between the
libertarians and the traditional civil rights organizations is unlikely to
extend further. The two are on opposite sides in the University of Michigan
case, with both the Cato Institute and the Institute for Justice opposing
affirmative action while nearly every traditional civil rights organization
has filed a brief on Michigan’s side. The Bush administration, which filed a
brief opposing the Michigan program, did not take a stand in the Texas case.
In
1986, when the court decided Bowers v. Hardwick, half the states had criminal
sodomy laws on their books. Now just 13 do. Texas is one of four, along with
Kansas, Oklahoma, and Missouri, with laws that apply only to sexual activity
between people of the same sex. The sodomy laws of the other nine
states–Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina,
South Carolina, Utah and Virginia–do not make that distinction. The Georgia
law that the Supreme Court upheld was later invalidated by the Georgia Supreme
Court.
The
Texas law is being challenged by John G. Lawrence and Tyron Garner, who were
found having sex in Mr. Lawrence’s Houston apartment by police officers who
entered through an unlocked door after receiving a report from a neighbor that
there was a man with a gun in the apartment. The neighbor was later convicted
of filing a false report. The two men were held in jail overnight, prosecuted
and fined $200 each. Represented by the Lambda Legal Defense and Education
Fund, they challenged the constitutionality of the law and lost in a
middle-level state appeals court. The Texas Supreme Court refused to hear the
case.
The
United States Supreme Court’s decision to take the case has been interpreted
on both sides as an indication that the court is likely to rule against the
state. Both Texas and the organizations that have filed briefs on its side
devote considerable energy in the briefs to trying to convince the justices
that granting the case was a mistake, a choice of tactics that is usually an
indication of concern that a decision that does reach the merits will be
unfavorable.
If
the justices do strike down the Texas law, the implications of the decision
will depend on which route the court selects from among several that are
available. The court could find that by singling out same-sex behavior Texas
has violated the constitutional guarantee of equal protection. Because the
Bowers v. Hardwick decision did not address equal protection, instead
rejecting an argument based on the right to privacy, such a decision would not
necessarily require the court to overrule the 1986 precedent.
The
Lambda Legal Defense and Education Fund’s brief for the two men urges the
court to go further and rule that any law making private consensual sexual
behavior a crime infringes the liberty protected by the Constitution’s due
process guarantee. Several arguments in its brief appear tailored to Justice
Sandra Day O’Connor, who voted with the majority in Bowers v. Hardwick but
is now assumed, on the basis of her later support for abortion rights and her
votes in other due process cases, to be at least open to persuasion.
For
example, the brief includes a quotation from Jane Dee Hull, then the
Republican governor of Arizona, where Justice O’Connor once served in the
Legislature, on signing a bill repealing the state’s sodomy law in 2001.
“At the end of the day, I returned to one of my most basic beliefs about
government: It does not belong in our private lives,” Governor Hull said.
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