A significant case for sexual rights went to the US supreme court yesterday, where lawyers for two Texans arrested in their bedroom asked the court to overturn their convictions for sodomy under a state law against homosexuality.
The challenge to the sodomy laws that still exist in 13 states is being made by a coalition of left and right, which argues that the laws intrude on private sexual conduct and discriminate against gay men.
In 1998 Tyron Garner and John Lawrence were found having sex in the latter’s Houston home by police who had been told by a neighbour that there was a man with a gun in the house.
The report was bogus and the neighbour was later prosecuted for making a false report, but Garner and Lawrence were locked up for the night, prosecuted for sodomy, and fined $200 each.
Texas is one of 13 states where sodomy is illegal, and one of four — Oklahoma, Missouri and Kansas are the others — where it is illegal only for gay men. In Texas it is a crime to engage in ”deviate sexual behaviour”, classified as anal or oral sex between gay men.
The case is a cause celèbre within the gay community, and has been taken up by Lambda Legal, the New York-based gay rights legal group, the libertarian Cato Institute, and other groups. The Republican Unity Coalition and various religious groups are also backing the appeal.
It is opposed by the state of Texas, which has the support of religious and conservative groups such as Focus on the Family. The American Centre for Law and Justice, associated with the Rev Pat Robertson, also opposes the appeal, believing it could pave the way to same sex marriages.
Ruth Harlow, Lambda’s legal director, said: ”Laws that criminalise oral and anal sex by consenting gay couples are an affront to equality, invade the most private sphere of adult life, and harm gay people in many ways.” She claimed widespread support on the issue: ”Conservative groups are coming forward to say that the government has no business in people’s bedrooms.”
Harlow said that the Texas law and others like it were often used to bar gay people from employment in the public sector or to refuse custody or visiting rights for gay parents. The two men in the case, for instance, are now listed on a sex offenders register.
The other nine of the 13 states have sodomy laws that apply to heterosexual and homosexual couples, but the laws are generally used only against gay men, according to Lambda.
How the supreme court will rule is unclear. On such issues the nine judges have tended to split 5-4 in favour of the status quo. The court could rule that any law against sodomy is unconstitutional, or merely that the four states are wrong toapply it only against gay men.
Lawyers for the two men will argue that their prosecution is unconstitutional in that the two have not been given protection under the law equal to that granted heterosexuals having sex. Their appeal quotes the former governor of Arizona, Jane Hull, who repealed its sodomy law in 2001: ”At the end of the day, I returned to my most basic beliefs about government — it does not belong in our private lives.”
Fifty years ago, sodomy, defined as anal or oral sex, was banned throughout the US. The gay rights movement led to gradual repeal of state laws, first in Illinois in 1962, and most recently in Massachusetts in 2002. The 13 remaining include Florida, Utah, Louisiana, Virginia and Alabama. – Guardian Unlimited Â