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 said.
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 contended.
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 heterosexuality.'”
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 said.
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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