Supreme Court Agrees to Hear Sodomy Case
Associated Press, December 2, 2002
WASHINGTON—The Supreme Court said Monday it would
consider whether states can punish homosexuals for having sex, a case that
tests the constitutionality of sodomy laws in 13 states. The justices will
review the prosecution of two men under a 28-year- old Texas law making it a
crime to engage in same-sex intercourse.
The Supreme Court has struggled with how much protection the Constitution
offers in the bedroom. The court ruled 5-4 in 1986 that consenting adults have
no constitutional right to private homosexual sex, upholding laws that ban
sodomy.
"Gay men and lesbians have been waiting for the opportunity to
convince the court it should take a different view of their constitutional
rights," Ruth E. Harlow, legal director of the New York-based Lambda
Legal Defense and Education Fund, said Monday.
The 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, in some states including anal and oral
sex. Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho,
Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. In
addition, Texas, Kansas, Missouri and Oklahoma punish only homosexual sodomy.
States argue that the laws, some dating back more than 100 years, are
intended to preserve public morals. The laws are rarely enforced.
Lawyers for John Geddes Lawrence and Tyron Garner said the men were
bothering no one in 1998 when they were arrested in Lawrence’s apartment,
jailed overnight and later fined under Texas’ 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 Harlow,
one of the men’s lawyers.
Harlow said in court filings that the latest census found 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
courts.
He said homosexual 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. A Louisiana appeals court recently
upheld that state’s 197-year-old law banning all oral and anal sex.
Delmore said the Texas law does not just target gays and lesbians. He said
it also could be used for bisexuals and heterosexuals "who are tempted to
engage in homosexual conduct." The law is part of Texas’ "communal
belief that the conduct is wrong and should be discouraged," he wrote in
a filing.
In a brief supporting Texas, the California-based Pro Family Law Center
said states should be given leeway to protect the public from the spread of
diseases like AIDS.
Civil rights groups including the Human Rights Campaign urged the court to
intervene, saying the laws are responsible for "stigmatizing gays and
lesbians as outlaws" and "contribute to an atmosphere of hatred and
violence" against gays.
The case is Lawrence v. Texas, 02-102.
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