March 31, 2003

High court hears lively debate on Texas sodomy law
___By Robert Marus
___ABP Washington Bureau
___WASHINGTON (ABP)--The Supreme Court convened a lively session March 26 to hear arguments in a Texas case that could become a landmark for the gay-rights movement.
___Justices heard arguments from opposing attorneys in Lawrence and Garner vs. Texas, a 1998 case in which two Houston men were arrested and convicted of violating Texas' anti-sodomy law. While investigating a neighbor's intentionally false report of an armed intruder, police entered John Lawrence's unlocked home and discovered him engaged in a sexual act with Tyron Garner.
___Although all 50 states banned it as recently as 1960, now only 13 states have laws on the books that ban sodomy--an obscure term for any sex act other than male-female vaginal intercourse. Texas' anti-sodomy statute, however, is one of only four in the nation that apply exclusively to homosexual sex acts.
___The high court's last ruling on anti-sodomy laws came with the Bowers vs. Hardwick case in 1986, when it ruled in a contentious 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.
___Paul Smith, a Washington lawyer arguing the case for Lawrence and Garner, made a two-pronged attack on the Texas statute. First, he asked justices to overturn the Bowers ruling based on the "right to privacy" which the court has interpreted from the 14th Amendment. When asked by Justice Ruth Bader Ginsburg if the court were being asked to overturn Bowers, Smith replied: "Yes, your honor. We're asking you to overrule it, and we think the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies to different-sex couples as well as same-sex couples."
___Smith said the Bowers decision was wrong on several fronts--it incorrectly interpreted the history of anti-sodomy laws; it disregarded the ability of gay people to form families and live in stable, marriage-like relationships; and it has created an atmosphere of intimidation and discrimination.
___"Bowers has proved to be harmful to thousands and thousands and thousands of people," said Justice Stephen Breyer during arguments, "if not because they're going to be prosecuted, because they fear it, they might be--which makes it a possible instrument of repression in the hands of the prosecutors."
___The plaintiffs, as well as several organizations who filed friend-of-the-court briefs on their behalf, said officials in many states have used the mere existence of state anti-sodomy laws to deny jobs and adoption rights to openly gay and lesbian people because they are presumed to be lawbreakers.
___American attitudes about non-vaginal sexual intercourse have changed in the 17 years since the Bowers decision, Smith said. "The American people have moved to the point where they would be shocked to know that right is denied to anybody."
___Smith's second major argument against the Texas law was that it violates the Constitution's equal protection clause because it applies exclusively to same-sex acts, but not identical acts committed by heterosexual couples.
___In 1973, the Texas Legislature overturned previous prohibitions on sexual relations other than vaginal intercourse among heterosexual couples, removing laws against heterosexual sodomy, adultery, fornication and even bestiality. The same year, the legislature enacted the specific ban on homosexual sodomy.
___Smith said Texas must show a rational justification for excluding the right to engage in sodomy from homosexuals but not from heterosexuals. "When a statute is limited to one particular group of people, that limitation has to be justified" under the equal protection clause, he declared.
___In arguing the state's side of the case, Harris CountyProsecutor Charles Rosenthal began by drawing a distinction between homosexual orientation and gay sex acts. "There is nothing on the record to indicate that (the plaintiffs) are homosexuals," Rosenthal said. The statute does not single out people homosexual in orientation but merely bans same-sex acts for both gays and people primarily heterosexual in orientation who might occasionally engage in same-sex acts, he said.
___Rosenthal also argued the state had a legitimate interest in protecting the institution of marriage by limiting extramarital sexual relations.
___But Justice John Paul Stevens protested: "Does Texas penalize sexual intercourse between unmarried heterosexuals? Or adultery?"
___The justices also asked Rosenthal what the rational basis was for banning homosexual sex acts but not banning the same acts when performed in a heterosexual context. As Texas had in its briefs for the case, Rosenthal demurred on the question, asserting that "under equal protection, Texas has the right to set moral standards--bright-line moral standards--for its people."
___Pressed by Souter on what particular harm gay sex caused that could justify a state ban on it, Rosenthal pointed to an argument that several friend-of-the-court briefs in support of Texas' position had made. "The amici have said that there may be public health considerations," Rosenthal said.
___These briefs argue that the gay-sex ban could reduce the risk of AIDS.
___However, briefs for the other side contend the Texas law does nothing to ban transmission of diseases through heterosexual sex acts, and it bans same-sex acts between two women even though such acts have a very low rate of transmission of diseases such the HIV virus.
___A ruling in the case is expected before the court ends its session in June.

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