December 9, 2002
Supreme Court will decide sodomy case from Texas
___By Robert Marus
___ABP Washington Bureau
___WASHINGTON (ABP)--For the second time in the last 16 years, the U.S. Supreme Court will hear a case that could decide whether state laws can ban homosexual sex acts without running afoul of the Constitution.
___On Dec. 2, the court agreed to hear arguments in Lawrence and Garner vs. Texas. In that case, two Houston men were arrested and convicted of violating Texas' anti-sodomy law in 1998 after police, investigating a neighbor's false report of an armed intruder, entered John Lawrence's unlocked home and discovered him engaged in a sexual act with Tyron Garner.
___Several states have laws on the books that ban "sodomy"--an old legal term for any consensual sex act other than male-female vaginal intercourse. Texas' anti-sodomy law is one of only four in the nation that apply exclusively to homosexual sex acts. In addition, nine other states have anti-sodomy laws that in theory apply to heterosexuals as well as homosexuals, but in practice are only applied to gays, lesbians and bisexuals, according to gay-rights groups.
___Attorneys for the Lambda Legal Defense and Education Fund are representing Lawrence and Garner. They argue that state anti-sodomy laws like Texas' that are applied only to homosexuals violate the equal-protection and right-to-privacy provisions of the Constitution's 14th Amendment. In their petition asking the justices to review the case, Lawrence and Garner's attorneys said: "The direct and indirect harms imposed by this law and others like it are a glaring affront to the Constitution's guarantee of equal protection."
___A three-judge panel of a state court earlier had ruled the men's convictions to be a violation of Texas' state constitution, but the full court later overturned that decision after state attorneys appealed. The state's criminal appeals court denied a petition for re-hearing under the state's constitution, causing the plaintiffs to appeal to the U.S. Supreme Court.
___That court's last ruling on anti-sodomy laws came with the Bowers vs. Hardwick case in 1986, when it ruled 5-4 decision that a Georgia anti-sodomy law did not violate the Constitution because homosexuals had no constitutional right to engage in consensual sexual intercourse.
___Attorneys for the state of Texas asked the Supreme Court not to hear the case. "In light of the fact that homosexual ... sodomy was viewed as criminal behavior under state law and the common law for a period of centuries, that conduct could not conceivably have achieved the status of a 'fundamental right' in the brief period of 16 years since Bowers was decided," the state argued.
___However, only three justices who decided the Bowers case are still sitting, and several recent state court decisions have overturned similar anti-sodomy statutes, including the very Georgia law the Bowers case upheld.
___Texas' attorneys also argued the state has a compelling interest in promoting "public morality" by outlawing gay sex acts. However, the plaintiffs said that was a discriminatory standard, since that would mean certain kinds of sex acts were immoral for homosexuals but not for heterosexuals--whether married or unmarried.
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