WASHINGTON (BP)–The U.S. Supreme Court has accepted a case challenging a Texas law prohibiting homosexual sex, raising the possibility it might be prepared to reverse itself less than two decades after upholding a ban on sodomy.
The high court announced Dec. 2 it would review a Texas court decision sustaining a state law banning sexual relations between members of the same sex. Arguments in the case should be heard early next year, and a ruling is expected by next summer.
By agreeing to hear the case, the court is revisiting an issue it decided in 1986. The justices ruled in a 5-4 decision that year that a Georgia law barring homosexual sex was constitutional. There is no fundamental right in the Constitution for homosexuals to participate in sodomy, the court said in Bowers v. Hardwick.
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, according to the Human Rights Campaign, the country’s largest homosexual political organization.
Homosexual activists applauded the announcement the high court would weigh the Texas law. “[W]e hope this is the beginning of the end to an unfortunate chapter of singling out gay and lesbian people for state-sanctioned persecution,” said Kevin Layton, the Human Rights Campaign’s legal director, in a written release.
Tom Jipping, Concerned Women for America’s senior fellow for legal studies, expressed doubt the justices would actually overturn their 1986 ruling, saying “that would require declaring sodomy a constitutional right.”
“They may, however, take the same approach as in the 1995 case of Romer v. Evans,” Jipping said in a written statement. “That too was an equal protection case [in which opponents successfully challenged a Colorado constitutional amendment that would have denied minority status to homosexuals]. The Texas court found that its statute was okay even under Romer. But since Justice Anthony Kennedy, a supposed moderate, wrote Romer, [it’s] an open question [whether the Supreme Court would do the same].”
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, according to The Washington Post. The Texas law penalizes some sexual acts done in private by homosexuals but not when they are done in private by heterosexuals, they argued, The Post reported.
A Texas appeals court upheld the law, however. In relying in part on the high 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, according to The Post.
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, according to HRC. Of those, just four — Kansas, Missouri, Oklahoma and Texas — prohibit only homosexual sodomy, The Post reported.
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