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Supreme Court will decide legality of state sodomy laws

By William Mears

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The U.S. Supreme Court will revisit the issue of whether states can continue to prosecute homosexual men for having consensual sex in their homes. CNN's Bob Franken reports (December 3)
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• Petition for Certiorari Lawrence v. Texas external link
• 1986 U.S. Supreme Court ruling: Bowers v. Hardwick  (FindLaw, PDF)external link

WASHINGTON (CNN) -- The Supreme Court will revisit the issue of whether states can continue to prosecute homosexual men for having consensual sex in their homes.

In a case that tests the constitutionality of sodomy laws in 13 states, the justices will review the prosecution of two men under a 28-year-old Texas law making it a crime to engage in same-sex intercourse.

At issue is the constitutionality of anti-sodomy laws currently in force in a handful of states.

In 1986, the court on a 5-4 vote upheld the prosecution of two gay men under a Georgia anti-sodomy law in the case of Bowers v. Hardwick. That case focused on the right to privacy.

The Lambda Legal Defense Fund in New York, a gay-rights group, is urging the court to revisit the Bowers decision and to rule that prosecuting same-sex couples, but not heterosexuals, for sodomy violates the equal-treatment standard.

The latest case, Lawrence v. Texas, arose when two men, John Lawrence and Tyron Garner, were arrested in a Houston-area apartment in 1998 by officers who were responding to a false report of an armed intruder. Instead, police arrested the men, and they were fined $200 for having sex.

The men were charged under Texas' "homosexual conduct" law. The Texas law criminalizes "deviate sexual intercourse with another individual of the same sex."

Although only 13 states now criminalize consensual sodomy, a Texas state appeals court found the law "advances a legitimate state interest, namely, preserving public morals."

Much has changed since 1986, say gay rights supporters, including changes in public attitudes, and the fact that such laws are rarely enforced. Texas prosecutors argue government can and has the right to enforce public morality.

But the court could be faced with grappling with the issue of whether homosexual sex should be treated differently than couples engaging in heterosexual sex, and if such laws should apply to adults in the privacy of their own homes.

"The state should not have the power to go into the bedrooms of consenting adults in the middle of the night and arrest them," said Ruth Harlow of the Lambda Legal Defense and Education Fund, who is representing the two Texas men. "These laws are widely used to justify discrimination against gay people in everyday life; they're invoked in denying employment to gay people, in refusing custody or visitation for gay parents, and even in intimidating gay people out of exercising their First Amendment rights."

State sodomy laws have been on the books for a century or more, and define the act as abnormal sex, including oral and anal sex. By the time of Bowers v. Hardwick, only half the states carried criminal sodomy laws, and now only a fourth do. In a 1996 decision, Romer v. Evans, the court voted 6-3 to overturn a Colorado amendment that barred local governments from enacting ordinances to protect gays.

The Supreme Court has struggled with how much protection the Constitution offers in the bedroom. The court ruled 5-4 in 1986 that consenting adults have no constitutional right to private homosexual sex, upholding laws that ban sodomy.

Arguments in the case will be heard early next year and a decision is expected by June.

The case is: Lawrence and Garner v. Texas (No. 02-102).

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