The gay equal rights movement, which has been growing in strength, faces a
crucial test in the Supreme Court this week.
The court has never said gays and lesbians are entitled to equal rights,
and has upheld laws branding them as criminals for having sex.
Adding insult to injury, in a 1986 opinion the court described abhorrence
of homosexuality as time-honored and traditional. It would "cast aside
millennia of moral teaching" to say sex between gay men "is somehow
protected as a fundamental right," then-Chief Justice Warren E. Burger said
in the case of Bowers v. Hardwick.
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, rights
lawyers say.
"This is the most important gay rights case in a generation," says Ruth E.
Harlow, a lawyer for the Lambda Legal Defense Fund. "We believe America has
moved beyond these (antisodomy) 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."
Most states repealed sodomy laws during the 1970s and 1980s. But not Texas,
which prosecuted Lawrence and Garner and secured fines of $200 each.
"We think the court is behind the times and Texas is behind the times (on
this issue)," says Harlow, who appealed Lawrence's case to the high court.
The symbolic significance of these antisodomy 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 B. Rubenstein, a UCLA law professor and an expert on sexual
orientation law.
Often, in cases involving child custody, adoptions and public employment,
antisodomy 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 second
foster child from the District of Columbia. Adoption workers agreed they
had a good home and family, but Virginia officials cited the "crimes
against nature" in saying Kaufman and her partner were unfit to adopt.
Kaufman is suing the state.
If the Supreme Court were to say these laws are irrational and
discriminatory, it would have an impact on a wide variety of such cases,
Rubenstein said.
About 2.8 percent of adult men and 1.4 percent of women identify themselves
as gay, lesbian or bisexual, according to the government's National Health
and Social Life Survey. If accurate -- and the Human Rights Campaign cites
this survey as the most reliable of its kind -- it means the nation has
about 4 million openly gay men and 2 million lesbians.
The case, Lawrence v. Texas, has split conservatives.
Traditionalists have sided with Texas and say marriage and family are
threatened by an equal-rights ruling for gays. But libertarian
conservatives say the government has no business in the bedroom.
Texas state lawyers say the court should consider dismissing the case.
Failing that, they said the justices should rule there is no
"constitutional right to engage in extramarital sexual conduct." If the
court were to recognize such a right, it could undercut or even invalidate
laws against adultery, polygamy, prostitution and incest, they say.
Such a ruling would "strike at the institution of marriage itself" and
"further push this nation toward sexual libertinism," says the American
Center for Law and Justice, which is based in Virginia Beach, Va.
Lawyers seeking equal rights for gays respond that they are arguing only
for a constitutional right of privacy among consenting adults. Public or
commercial transactions with prostitutes are not included, they say.
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.
"This case is about the proper scope of and limits on government power more
than it is about homosexuality and homosexual conduct," says the Institute
for Justice, a Washington, D.C., group that has championed causes such as
"school choice" through vouchers.
During the 1990s, the Supreme Court stayed away from most disputes over
civil rights for gay people. The justices repeatedly ignored appeals that
challenged the military's ban on those who are openly gay.
Two recent rulings lean in opposite directions. In 1996, the court struck
down a Colorado voter initiative that voided all local ordinances related
to the rights of gays. In a 6-3 decision, the justices described the ballot
measure as irrational and discriminatory.
Three years ago, however, the court reversed the New Jersey courts and
ruled in a 5-4 vote that the Boy Scouts were entitled to kick out a
well-regarded Scout master who said he was gay.
Only three justices remain from 1986. They are Chief Justice William H.
Rehnquist and Justice Sandra Day O'Connor, who were in the majority, and
Justice John Paul Stevens.
But O'Connor and Justice Anthony M. Kennedy, both Reagan appointees, voted
to strike down the Colorado antigay initiative, and rights lawyers are
hoping they will join with the four liberal justices to rule against Texas
in the new case.
While arguments will be heard Wednesday, a ruling is not likely until June.
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