Court
Hears Arguments in Gay Rights Case
Associated Press, March 27,
2003
By Gina Holland
WASHINGTON—Some states punish gay
couples for their bedroom activities. The Supreme Court, in a landmark gay
rights case, is trying to decide when such laws are constitutional.
The court ruled 17 years ago that states could prosecute
homosexuals who have sex. But in a case heard Wednesday, the justices appeared
deeply divided on whether to reverse course and strike down a Texas law that
bars “deviate sexual intercourse” by same-sex couples.
They framed the argument in moral and historical terms as
a clash over equality, privacy and government’s role in upholding
traditional values.
“These are laws dealing with public morality, they’ve
always been on the books and no one has ever thought they are unconstitutional
simply because there are moral perceptions behind them,” Justice Antonin
Scalia said.
Other justices seemed less sure.
“The hard question here is, can the state pass anything
it wants because the state thinks it’s immoral? If you’re going to draw a
line anywhere, it might start with a line at the bedroom door,” Justice
Stephen Breyer said.
Texas said the law promotes the institutions of marriage
and family. “Texas can set bright-line moral standards for its people,”
Houston District Attorney Charles Rosenthal said.
He was asked repeatedly if the state has evidence that
there is some harm in sex between gays. He compared it to drug use.
“I don’t see the parallel between the two
situations,” Justice David H. Souter said.
Laws forbidding homosexual sex, once universal, now are
rare.
“Most Americans would be shocked to find out that the
decision to engage in sexual relations with another person might result in a
knock at the door and a prosecution,” said Paul Smith, the attorney for two
men who were arrested while having sex and prosecuted.
As recently as 1960, every state had an anti-sodomy law.
In 37 states, the statutes have been repealed by lawmakers or blocked by state
courts.
Of the 13 states with sodomy laws, four—Texas, Kansas,
Oklahoma and Missouri—prohibit oral and anal sex between same-sex couples.
The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho,
Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.
“It would be legal in Texas to have sex with an animal,
but not your long-term partner,” said Dale Carpenter, a University of
Minnesota law professor who filed a brief in the case.
A decision is expected before July.
The Supreme Court was widely criticized 17 years ago when
it upheld an antisodomy law similar to Texas’. The ruling became a
touchstone for gay activists.
Of the nine justices who ruled on the 1986 case, only
three remain on the court. Chief Justice William H. Rehnquist was in the
majority in the case, Bowers v. Hardwick, as was Justice Sandra Day
O’Connor. Justice John Paul Stevens dissented.
The latest case drew an overflow crowd of lawyers, gay
rights activists and spectators. Outside the court, a knot of protesters
carried placards that read, “AIDS is God’s Revenge,” and other messages.
The two men at the heart of the case, John Geddes
Lawrence and Tyron Garner, have retreated from public view. They were each
fined $200 and spent a night in jail for the misdemeanor sex charge in 1998.
The case began when a neighbor with a grudge faked a
distress call to police, telling them that a man was “going crazy” in
Lawrence’s apartment. Police went to the apartment, pushed open the door and
found the two men having anal sex.
The case is Lawrence v. Texas, 02-102.
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