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High court could be poised to overturn sodomy law

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    CALLED OUT This is from the Baptist Press, official news service of the strongly anti-gay Southern Baptist Convention. ... High court could be poised to
    Message 1 of 1 , Mar 28, 2003
      This is from the Baptist Press, official news service of the strongly
      anti-gay Southern Baptist Convention.

      High court could be poised to overturn sodomy law
      Mar 27, 2003
      By Tom Strode

      WASHINGTON (BP)--The U.S. Supreme Court was told by lawyers seeking
      to overturn a Texas law barring homosexual acts that it violates
      privacy rights and is discriminatory, and supporters of such
      prohibitions fear the justices may agree after March 26 arguments
      before the court.

      The high court heard oral arguments in an appeal of a Texas court
      opinion sustaining a state law banning sexual relations between
      members of the same sex. The lawyer for two Houston homosexual men
      asked the court to overturn a 17-year-old ruling in which the
      justices upheld a Georgia law barring same-sex acts. The justices
      could stop short of revisiting their 1986 decision and still strike
      down the Texas law.

      Opponents of homosexual rights are concerned a ruling against the
      measure would further the attempt to legalize workplace and housing
      rights on the basis of homosexuality, as well as homosexual adoptions
      and same-sex marriage.

      After the oral arguments, the two sides displayed opposite reactions
      to the deliberations.

      Paul Smith, who argued on behalf of the homosexual men, told
      reporters, "I feel really good about the way the presentation went."
      Ruth Harlow, a counsel with Smith, called it a "very hopeful day for
      gay Americans."

      Michael Farris, who wrote a brief defending the law, acknowledged he
      was "discouraged."

      While an oral argument "doesn't make or break a case," it can provide
      ammunition for the justices, said Farris, whose friend-of-the-court
      brief came on behalf of the Center for the Original Intent of the
      Constitution. His side did not provide "a lot of ammunition," he

      The Texas Homosexual Conduct law, enacted in 1973, prohibits "deviate
      sexual intercourse" between same-sex couples. Texas is one of just
      four states that have sodomy laws that apply only to homosexuals.
      Nine other states prohibit both homosexual and heterosexual sodomy.

      The case, Lawrence v. Texas, began in 1998 when Houston police
      entered an apartment in response to what turned out to be a false
      report of an armed intruder and found John Lawrence and Tyron Garner
      having sexual relations. The men were arrested and fined $200 apiece.

      Lawrence and Garner challenged the law, contending it violated their
      right to privacy and equal treatment. The Texas law penalizes some
      sexual acts done in private but only when done by homosexuals, they

      A Texas appeals court upheld the law. In relying in part on the
      Supreme Court's 1986 opinion, the Texas court ruled there was no
      right to homosexual sex and the state legislature approved the law
      because of its rational belief homosexuality is immoral.

      In the oral arguments before the justices, Smith said the United
      States has a tradition of respect for privacy. Three-fourths of the
      states do not even regulate sodomy, he told the justices.

      Associate Justice Antonin Scalia, who was the most frequent
      challenger of Smith's arguments, questioned the contention private
      sexual activity is a liberty right. Suppose all the states have laws
      against flag-pole sitting, but then three-fourths of them repeal
      their laws, he said. "Does that make flag-pole sitting a fundamental
      right?" Scalia asked.

      Smith also argued the Texas law discriminates against same-sex
      couples. By barring only homosexual acts, Smith argued, a state
      legislature is saying, "We want the right to commit adultery, commit
      fornication, commit sodomy, but those people over there shouldn't
      have that right."

      He told the court, "I think a state has to have a greater
      justification than, 'We prefer to push people toward

      The Texas law has "all sorts of collateral effects," including the
      denial of visitation to a homosexual parent and loss of employment,
      Smith said.

      Charles Rosenthal, district attorney for Harris County, which Houston
      resides in, told the court the Texas law does not violate the
      Constitution. "This court has never recognized a fundamental right to
      extramarital sexual relations," he said.

      In Texas law, sodomy has a "longstanding tradition as something that
      should be proscribed," Rosenthal said. The decision on this issue
      belongs in the state legislature, he told the justices. Texas has a
      right to establish "bright-line moral standards," he said.

      Rosenthal also told the court this case was different from a 1996
      decision in which the justices struck down a Colorado amendment that
      barred anti-discrimination measures based on sexual orientation. The
      Texas law classifies conduct, not people, he said. Texas is "not
      penalizing their status," Rosenthal said. "We're penalizing only
      their particular activity."

      Opponents of homosexual rights were deeply disturbed at the potential
      harm the court could inflict in the case, which is Lawrence v. Texas.

      "If homosexuals want a liberalization of the law, they need to go to
      their state legislatures," Farris said. What is being stolen is "not
      only our moral presuppositions but our right of self-government," he

      Ken Connor, president of Family Research Council, said in a written
      statement, "If the court rules against Texas, they will have started
      down a path to redefine marriage out of existence."

      Among the organizations filing friend-of-the-court briefs in support
      of the homosexual petitioners was the Alliance of Baptists, which was
      formed in 1987 in response to the conservative resurgence in the
      Southern Baptist Convention.

      Others filing on the same side were the American Bar Association,
      ACLU, American Psychological Association, libertarian groups such as
      the Cato Institute and Institute for Justice, and homosexual rights
      groups such as the Human Rights Campaign and Log Cabin Republicans.

      Supporters of the law filing briefs included the American Center for
      Law and Justice, American Family Association, Center for Marriage
      Law, Concerned Women for America and Liberty Counsel, as well as the
      states of Alabama, South Carolina and Utah.

      In 1986, the Supreme Court ruled in the 5-4 Bowers v. Hardwick
      decision there is no fundamental right in the Constitution for
      homosexuals to participate in sodomy. Much has changed on the high
      court and in the states since then, however.

      Only three justices -- Chief Justice William Rehnquist and Associate
      Justices John Paul Stevens and Sandra Day O'Connor -- remain on the
      high court. In the 1986 opinion, Rehnquist and O'Connor voted to
      uphold the sodomy law, while Stevens dissented.

      Since that ruling, the number of state sodomy laws has decreased from
      28 to 13. In addition to Texas, the states that still have sodomy
      laws are Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi,
      Missouri, North Carolina, Oklahoma, South Carolina, Utah and
      Virginia. Of those, Kansas, Missouri, Oklahoma and Texas prohibit
      only homosexual sodomy.

      A decision is expected before the court adjourns this summer.

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