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APRIL 4, 2003
Sodomy fight is
Those who see the Texas sodomy case as a
vehicle for sexual liberation should look elsewhere.
Our movement should advance equality, not sex.
By CHRIS CRAIN
HE CONVENTIONAL WISDOM
about last week's oral argument in
the landmark lawsuit challenging
the Texas "homosexual conduct"
law is that a majority of the
Supreme Court will vote to strike
down the statute.
Three of the nine justices (Stephen Breyer,
Ruth Bader Ginsburg and David Souter)
aggressively challenged the constitutionality of
the law, which criminalizes sodomy for same-
sex partners only, and another (John Paul
Stevens) voted more than a decade ago to strike
down the sodomy law in Georgia.
Only one more vote would amount to a majority, and even neutral observers like longtime New
York Times correspondent Linda Greenhouse
reported that Justice Sandra Day O'Connor —
who unlike Stevens voted to uphold Georgia's
sodomy law in the infamous 54 Bowers vs.
Hardwick decision — seemed to be looking for
some way to strike down the Texas statute.
But if O'Connor has her way the court will
likely be taking "the easy way out," striking down
the Texas law for violating the Constitution's guarantee of "equal protection under the law." The
laws of only three other states, which also criminalize homosexual sodomy without any similar
prohibition against heterosexual oral and anal sex,
would also be unenforceable under such a ruling.
But relying on "equal protection" to strike
down the Texas law would leave on the books
the sodomy laws in another nine states,
because they ban oral and anal sex for gay and
straight sex partners alike.
To knock out all 13 laws, the court would
have to conclude that the Texas law violates the
"fundamental right to privacy" that unmarried
adults have to decide, in the privacy of then-
own bedrooms, to engage in consensual sex.
That would mean overturning the 1986 holding
in Bowers vs. Hardwick.
Justice O'Connor is famous for frustrating
advocates of all stripes by deciding cases on as
narrow a basis as possible, ostensibly to preserve for the court the ability to consider new
facts and'circumstances down the road. That
bodes poorly for a vote from her on an expanded "fundamental right" that covers private sexual choices, including sodomy
She is also no fan of Roe vs. Wade, the controversial ruling that the decision to terminate
a pregnancy was protected by that "fundamental privacy right," though she begrudgingly
upheld the precedent several years ago as a settled issue that shouldn't be reopened.
If Justice O'Connor won't avail herself of the
prerogative to change her mind (and her vote) in
the Bowers case, then Justice Anthony Kennedy is
the only likely candidate to create a majority on
this "broader" ruling on the Texas sodomy law.
He gave no particular indication in the oral
argument last week that he is prepared to do
so, and the historic opinion he authored seven
years ago in Romer vs. Evans, which struck
down an anti-gay amendment to the Colorado
Constitution, was based on equal protection,
■ not the "right to privacy"
BUT ARE WE REALLY WORSE OFF IF THE
Supreme Court won't go so far as to declare
that there is a fundamental right to make private sexual choices?
As appealing as such a ruling might be to gay
and lesbian Americans, who are regularly subjected to grief and discrimination for our private
sexual choices, there isn't a strong anchor for
such a ruling in the text of the U.S. Constitution.
In fact, that document says nothing at all about a
right to privacy except against having our homes
searched without justification.
That's why Roe vs. Wade, which snatched
the-issue of abortion from consideration by the
elected branches of government, remains so
controversial today There may come a happy
day when homosexuality has reached such
broad acceptance that a judicially imposed right
to make private sexual choices will be accepted
by the public and will not galvanize the opposition, but that day surely has not arrived.
It is the case, as noted, that only an expanded
"right to privacy" will strike down the sodomy
laws in those nine states that criminalize oral and
anal sex for gays and straights alike. Also left
intact would be laws against "fornication" (extramarital sex of any type), which are still on the
books in a surprising number of states, although
they have not been used as widely as sodomy laws
to stigmatize gays in custody battles and the like.
But on the other hand, a ruling by the
Supreme Court that the "fundamental right to
privacy" extends to all private sexual choices may
not be nearly as useful to the broader movement
for full equality and gay civil rights.
. IN THIS RESPECT, IT WAS THE LAWYER
for the state of Texas, Harris County District
Attorney Chuck Rosenthal, who really got it
right. At the very end of his folksy but otherwise abysmal performance before the Supreme
Court last week, Rosenthal warned the justices
that striking down the state's sodomy law
might result in a parade of horribles that
includes the legalization of gay marriage.
The state of Texas and its advocates on the
Supreme Court, most vocally Chief Justice
William Rehnquist and Justice Antonin Scalia,
searched high and low last week for any rational justification for treating homosexuals and
heterosexuals differently under the state's
The best they came up with is the proposition that a majority of citizens, acting through
their government, is entitled to impose "moral
judgments" through laws. "You can make it
sound puritanical," Scalia acknowledged from
the bench, but that doesn't make it unconstitutional, he said.
Pressed to come up with other justifications, Rosenthal could offer only the preservation of families and procreation, but those
claims withered under the scrutiny of Justice
Ginsburg, who pointed out that the same year
(1973) that Texas criminalized homosexual
sodomy, it decriminalized adultery and fornication. For the knockout punch, she noted that
Texas places no sexual restrictions on heterosexuals who cannot have children or on gays
who wish to serve as foster parents.
If the majority of the court sides with
Justice Ginsburg, and concludes that "morality"
and "family values" aren't justifications for
treating gay couples differently from straight
couples, then you can waive goodbye to the only
serious justifications ever given for marriage
laws that discriminate against same-sex couples.
And don't look to tradition to support such
"morality laws," though Justice Scalia offered it
up last week. Justice Stevens shot back that
there was a long history of laws against interracial marriage before the Supreme Court's landmark case of Loving vs. Virginia, which struck
them down on equal protection grounds in 1967.
Paul Smith, the top-notch advocate for the
two Houston gay men challenging the Texas
sodomy law, also noted that a history of official
discrimination didn't save laws criminalizing
interracial cohabitation, which the court has
also struck down.
The Lambda Legal Defense & Education
Fund, which has done a generally excellent job
in the Texas case, has been too shy about
acknowledging the implications for gay marriage in an equal protection victory in the
Texas sodomy case. If we believe in our own
equality, we shouldn't play cute and disingenuous, suggesting even out of court that s
laws and marriage laws aren't related.
All in all, a strong ruling that vindicates
our right to equal treatment from our government, grounded in the actual text of the
Constitution, is worth far more than an extension in the court's troubled jurisprudence on
the "right to privacy," however good such a
victory might feel today
Chris Crain is
executive editor of
Houston Voice and
can be reached at