A landmark case that began when Texas police broke into a gay man’s apartment in 1998 goes before the US Supreme Court next week, seeking the repeal of state laws against sodomy and oral sex.
Gay and civil rights groups say the court’s ruling will have a profound influence on how homosexuality is viewed in the United States, not just legally, but also politically and socially.
Texas is one of four US states where it is a crime for members of the same sex to engage in sodomy, which is defined by the state as oral or anal sex. A further nine states have similar legislation, but apply it to heterosexuals as well as the gay and lesbian community.
The challenge to the Texas sodomy statute began when sheriff’s deputies in Harris County arrested John Lawrence and Tyron Garner after they were discovered having sex in Lawrence’s apartment in September 1998. Police broke into the apartment in response to a weapons disturbance report that proved unfounded.
Lawrence and Garner were both convicted and ordered to pay fines of $200 apiece. The Texas state appeals court threw out their appeal, ruling that the law ”advances a legitimate state interest, namely, preserving public morals”.
In the case to be heard by the Supreme Court on March 26, lawyers for the two men will argue that the statute is unconstitutional on two counts: that it violates the right to privacy and discriminates on the basis of sexual orientation.
If victorious on the privacy claim, the case would result in the repeal of the sodomy laws in all 13 relevant states. ”Every American should be able to expect that, in their own homes, police do not have a role in deciding what sexual activity they engage in with another consenting adult,” said lead attorney Ruth Harlow.
”Government has really overstepped its limit when a state may enter into American bedrooms and inspect the most intimate and private physical interactions,” Harlow said.
In order to invalidate the Texas law on privacy grounds, the Supreme Court will have to overrule the precedent it established in a similar 1986 case when it decided that the right to privacy did not extend to ”morally reprehensible” activities which lacked any connection to ”family, marriage or procreation.”
The anti-discrimination argument will only have repercussions in the four states — Texas, Oklahoma, Kansas and Missouri — where the sodomy law exclusively targets homosexual couples.
Although the law is rarely enforced, opponents argue that it represents an institutional attempt to label homosexuals as second class citizens, by outlawing sexual behaviour permitted for straight couples.
”It boils down to a judgement that same sex couples are less worthy and should be discriminated against,” said Harlow. ”The state legislature is saying ‘we don’t like you and want a criminal law that condemns you’,” she added.
Harris County District Attorney Chuck Rosenthal said his office was ready to defend that law, insisting that the argument before the Supreme Court was not about homosexuality.
”It’s not even about sodomy. It’s about the right of the Texas legislature to enact laws,” Rosenthal said.
Gay rights activists say the mere existence of the Texas statute automatically makes criminals of active homosexuals, resulting in employment discrimination that goes unchallenged.
Glen Maxey, an openly gay member of the Texas House of Representatives, who retired recently after serving six terms, said he was regularly the target of a vicious whispering campaign.
”Although I was democratically elected, there were those who questioned my right to serve in office on the grounds that my sexual orientation would undermine my pledge to uphold the state constitution,” Maxey said.
Attitudes towards the American gay community have changed significantly since the 1986 Supreme Court ruling and Harlow believes the fact that the court has agreed to hear the arguments again is a positive sign.
”We are very optimistic,” she said. – Sapa-AFP