Monday, December 2, 2002

A story released today by the Associated Press reports that the United States Supreme Court said it would consider whether states can punish homosexuals for having sex, a case that tests the constitutionality of sodomy laws in 13 states.

The justices will review the prosecution of two men under a 28-year-old Texas law making it a crime to engage in same-sex intercourse.

The Supreme Court has struggled with how much protection the Constitution offers in the bedroom. The court ruled 5-4 in 1986 that consenting adults have no constitutional right to private homosexual sex, upholding laws that ban sodomy.

The court faces several questions in the latest case. Among them: Is it an unconstitutional invasion of privacy for couples to be prosecuted for what they do in their own homes? Is it unconstitutional for states to treat gays and lesbians differently by punishing them for having sex while allowing heterosexual couples to engage in the same acts without penalties?

Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. In addition, Texas, Kansas, Missouri and Oklahoma punish only homosexual sodomy.

States argue that the laws, some dating back more than 100 years, are intended to preserve public morals. The laws are rarely enforced.

Lawyers for John Geddes Lawrence and Tyron Garner said the men were bothering no one in 1998 when they were arrested in Lawrence's apartment, jailed overnight and later fined under Texas' Homosexual Conduct Law, which classifies anal or oral sex between two men or two women as deviate sexual intercourse.

``The idea that a state may enter into American bedrooms and closely inspect the most intimate and private physical interactions ... is a stark affront to fundamental liberty that the court should end,'' said Harlow, one of the men's lawyers.

William Delmore III, an assistant district attorney in Texas, said people who don't like the law should take it up with the Texas Legislature, not courts.

He said homosexual sodomy has been considered criminal behavior for centuries. The conduct ``could not conceivably have achieved the status of a fundamental right in the brief period of 16 years'' since the Supreme Court last reviewed it, Delmore wrote in the state's court papers.

Delmore said the Texas law does not just target gays and lesbians. He said it also could be used for bisexuals and heterosexuals ``who are tempted to engage in homosexual conduct.'' The law is part of Texas' ``communal belief that the conduct is wrong and should be discouraged,'' he wrote in a filing.