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Gay-rights cause faces crucial test this week
By David G. Savage WASHINGTON - The gay-rights movement faces a crucial test in the Supreme Court this week. The court has never said gays and lesbians are entitled to equal rights, and it has upheld laws branding them as criminals for having sex. In a 1986 opinion upholding a now-defunct anti-sodomy law in Georgia, Chief Justice Warren Burger wrote that to say sex between gay men "is somehow protected as a fundamental right" would "cast aside millennia of moral teaching." Now, 17 years later, the court is being asked to cast aside Burger's view as bigoted and archaic. Gay civil-rights leaders say public opinion regarding homosexuality has changed dramatically since 1986. These days, the "real social and legal deviants" are not gay people but "homosexual sodomy laws" that remain on the books in 13 states, says the Human Rights Campaign, which calls itself America's largest gay and lesbian group. On Wednesday, the court will hear a Texas case that asks the justices not just to throw out the prosecution of two men who were arrested for having sex in the Houston home of one of the men, but to declare that the Constitution gives same-sex couples the same rights to privacy and equality as heterosexuals. Such a statement would be a milestone on the road to full equality, gay-rights lawyers say. "This is the most important gay-rights case in a generation," says Ruth Harlow, a lawyer for the Lambda Legal Defense Fund who appealed Lawrence's case to the high court. "We believe America has moved beyond these (anti-sodomy) laws. And we're hoping the court will say all adults have the same right to privacy and you can't have a different rule for gay people." On Sept. 17, 1998, police received a false report of a man with a gun at an apartment complex, and they broke into the residence of John Lawrence. They found him with Tyron Garner, and arrested both for violating the Texas law against "deviate sexual intercourse." Lawrence and Garner were prosecuted, pleaded no contest and were fined $200 each. "These are people who were arrested in their bedroom," said Patricia Logue, another Lambda attorney. "They never chose to have that invasion of privacy. This is something they believe in, of course, but it's not a battle they chose." Logue and the men's other attorneys contend the Texas law is unconstitutional for two reasons: It authorizes impermissible intrusion into citizens' private lives, and it violates the Equal Protection Clause by criminalizing certain behavior only for same-sex couples, not for heterosexuals. But William Delmore III, an assistant district attorney in Harris County, said the high court should leave it to Texas lawmakers and other state legislatures to tackle the issue. "We feel pretty comfortable that while legislatures are free to repeal statutes of this kind - and that's a completely appropriate exercise of democracy - legislatures should remain free to act on principles of morality" and retain statutes that are intended to promote public morality, Delmore said. As recently as 1960, every state had a sodomy law. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts. Of the 13 states with sodomy laws, four - Texas, Kansas, Oklahoma and Missouri - prohibit "deviate sexual intercourse," or oral and anal sex, between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. The symbolic significance of these anti-sodomy laws goes well beyond their role as regulator of sexual conduct, legal experts say. "These laws don't send people to jail, but they are a brand of disapproval for gay people. They are used across the board as arguments against them," said William Rubenstein, a University of California, Los Angeles, law professor and an expert on sexual-orientation law. Often, in cases involving child custody, adoptions and public employment, anti-sodomy laws are invoked against gays or lesbians, he said. For example, Linda Kaufman, an Episcopal priest and a lesbian who lives in Arlington, Va., said she and her partner were trying to adopt a foster child from the District of Columbia. Adoption workers agreed they had a good home and family, but Virginia officials cited "crimes against nature" in saying they were unfit to adopt. Kaufman is suing the state. The case of Lawrence v. Texas has split conservatives. Traditionalists have sided with Texas and say marriage and family would be threatened by an equal-rights ruling for gays. But libertarian conservatives say the government has no business in the bedroom. Two prominent libertarian groups - the CATO Institute and the Institute for Justice - say the government should not be allowed to meddle in purely private matters. A ruling in the case is expected this summer. | ||||||