High court could be poised to overturn sodomy law
- 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 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
Michael Farris, who wrote a brief defending the law, acknowledged he
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,
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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