'Homosexual Conduct' and the Court

By The Editors, The Data Lounge. Posted April 7, 2003.

An overzealous pair of Houston policemen, who arrested two adult men engaged in consensual sex in a private residence, have set the stage for the most important court decision on the rights of gay and lesbian Americans in a generation.

The U.S. Supreme Court is hearing oral arguments in Lambda Legal's case challenging the constitutionality of Texas's "Homosexual Conduct" law, which criminalizes oral and anal sex by consenting gay couples.

Justices will decide whether the Texas sodomy law violates the equal protection and privacy rights of homosexuals, or whether the law is, instead, a legitimate attempt by the state to uphold its view of sexual morality, family values, and traditional marriage.

Backers of the Texas law assert there is no fundamental right in the Constitution to engage in certain sexual activity. To strike down the law, they say, could create such a right and lay the legal groundwork for recognition of same-sex marriages.

Opponents say among the most fundamental of rights guaranteed in the Constitution is the right to be left alone. The government does not enjoy the unfettered power to intrude into the most intimate and private aspects of what happens in American bedrooms, they say.

"This is the most important gay rights case in a generation," said Ruth Harlow of Lambda. "What we are asking for is to not have the police prosecute you for choosing one particular way to express your love for someone else in private."

Conservatives fear that overturning the statute will lead to broad changes in family status -- changes that may undermine the favored treatment of male-female marriage by state lawmakers

"[This case] could have broad implications not just for the 13 states that have sodomy laws, but for the marriage laws in every state," a professor from Catholic University Law School told the Christian Science Monitor.

In addition to Texas, three other states - Kansas, Missouri, and Oklahoma - make it a crime for gay people to engage in sodomy. Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia make those same acts illegal for both gays and heterosexuals.

The justices can take one of three actions to resolve the case. They can uphold the Texas law, throwing the decision back to state lawmakers. They can declare the law violates equal-protection guarantees by treating gays differently, invalidating gay-only sodomy laws.

Or the court can issue a much broader ruling, declaring American bedrooms to be protected by fundamental concepts of liberty and privacy and off limits to state scrutiny. Such a decision would invalidate all 13 sodomy laws nationwide, and would overturn a 1986 court precedent upholding Georgia's sodomy law.

In bringing the Texas case, Lambda Legal asked the justices to reconsider that decision, which Harlow said has done "tremendous harm" to gay Americans for years.

"Since 1986, the nation has steadily moved away from these laws," Harlow said. "Society's knowledge about gay people, gay families and gay lives has increased exponentially since 1986, and we believe a more informed view of constitutional protections for gay people can now prevail."

A decision in the case is expected in June.

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