Analysis: Same-sex case pits precedents

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent

WASHINGTON, March 25 (UPI) -- Even as the fighting goes on in Iraq, America's culture war continues, and as usual the battlefield for that war is the Supreme Court of the United States.

Wednesday, the justices will hear argument on whether Texas -- it would have to be Texas, wouldn't it? -- or any other state can ban private homosexual conduct between consenting adults.


It's not even absolutely clear how many states ban what their laws call by the old-fashioned name of "sodomy."

A friend-of-the-court brief filed by Alabama, South Carolina and Utah in support of Texas says "14 states have criminal statutes banning either homosexual sodomy alone or all extra-marital sodomy."

A brief filed by the Texas gay couple challenging that state's sodomy law says that, "Today, in addition to Texas, only Kansas has an explicitly same-sex-only sodomy law in full force and effect ... Missouri enforces such a statue in part of that state ... and Oklahoma's general sodomy statute has been judicially construed to exclude heterosexual consensual behavior ... Nine other states retain criminal laws that bar consensual sodomy for all."


Whether we're talking about 13 or 14 states, a decision in the Texas case probably will affect the sodomy laws in all of them, even those that criminalize the conduct of anyone, not just gays.

The gay Texas couple is challenging that state's sodomy ban not only on the grounds that it violates the equal protection guarantee of the 14th Amendment -- homosexuals are being treated differently than heterosexuals.

They are also challenging the ban on the grounds that it violates "their vital interests in liberty and privacy protected by the due process clause of the 14th Amendment."

A Supreme Court ruling based on a "liberty and privacy" interest would of course apply to all of the state laws which reach into the bedroom, even those that apply to homosexuals and heterosexuals equally.

In the run-up to Wednesday's argument, much has been made of the Supreme Court's 1986 decision in Bowers vs. Hardwick. The 5-4 ruling upheld Georgia's ban on sodomy.

Two present members of the Bowers majority are still on the Supreme Court: Chief Justice William Rehnquist and Justice Sandra Day O'Connor.

Only one of the dissenters remains: Justice John Paul Stevens, the Supreme Court's aging liberal lion and the most senior member of the court.


More informative than Bowers, however, may be the 1996 decision in Romer vs. Evans. What a difference 10 years make.

That 6-3 decision in Romer struck down a Colorado amendment that banned local laws specifically protecting homosexuals from discrimination.

All of the nine justices who participated in Romer are still on the court. What's more, O'Connor was once again in the majority, this time voting with the four court liberals and fellow swing vote Justice Anthony Kennedy.

"One century ago," Kennedy wrote for the majority in Romer, "the first Justice (John Marshall) Harlan admonished this Court (in a dissent) that the Constitution 'neither knows nor tolerates classes among citizens' ... Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The equal protection clause enforces this principle ... "

It would be hard to imagine the Romer majority straying far from this landmark in any eventual decision in the Texas case.

In its argument brief to the Supreme Court in advance of tomorrow's case, Texas argues that laws against certain types of sexual behavior are as American as apple pie.


"At the most specific level," the brief said, "the nation has a long-standing tradition, only recently waning, of criminalizing anal sodomy -- the offense once known as 'buggery' -- as a serious criminal offense."

Moreover, most states "have maintained, through most of their history, statutes which made it a criminal offense to engage in fornication and adultery as well as sodomy, and there is no long-standing tradition of protecting the right to engage in any sort of extramarital sexual conduct."

Forty states had laws against fornication until the 1970s. Adultery was a capital offense, in some circumstances, in colonial Massachusetts.

Finally, Texas argues that the decision in Bowers was good law, and the present-day Supreme Court should leave it alone.

Whether this lesson in history and states' rights in the Texas case will overcome the Romer bloc's equal protection hurdle is doubtful, especially if Kennedy again leads the charge to a majority.

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