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Supreme Court expected to issue ruling on sodomy laws

By Bill Mears
CNN's Washington Bureau

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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) -- Houston police looking for one crime in progress found another, beginning a chain of events leading to a potentially monumental ruling on the legal limits of privacy and equal protection in one's home.

The Supreme Court is expected to release Thursday its decision on whether homosexual men can be prosecuted for having sex in their homes. A larger issue is whether states may intrude on the consensual, private behavior of adults in private residences.

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

John Geddes Lawrence and Tyron Garner were arrested in a Houston-area apartment in 1998 by officers responding to a neighbor's false report of an armed intruder. That neighbor wrongly claimed a man was "going crazy" inside the residence. Police crashed into Lawrence's home and discovered Lawrence and Garner involved in a sexual act. They were arrested, jailed overnight and later fined $200.

"It was sort of like the Gestapo coming in," said Lawrence after a court appearance.

The men's lawyers said the convictions, if upheld, would keep them from obtaining from certain jobs, and they would also be considered sex offenders in several states. The Texas law, they told the court, gives gay Americans second-class status as citizens.

"I feel like my civil rights were being violated," said Garner, "and I don't think I was doing anything wrong."

Lawrence and Garner were charged under Texas' "homosexual conduct" law, which 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."

Landscape has changed since 1986 ruling

Much has changed since 1986, when the Supreme Court upheld a Georgia anti-sodomy law, say gay rights supporters, including changes in public attitudes and the fact that such laws are rarely enforced. Texas prosecutors argue government has the right to enforce public morality.

But the court could address the issues of whether couples engaging in 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, a gay-rights group 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."

Lambda cited recent U.S. Census figures showing about 600,000 households with same-sex partners, 43,000 or so in Texas.

The 1986 Supreme Court ruling, Bowers v. Hardwick, upheld a Georgia state law that effectively made homosexual sexual behavior a crime. In 1998, however, the Georgia Supreme Court overturned that state law.

The Supreme Court also has changed since the 1986 ruling. Five sitting justices have been named to the court since Bowers v. Hardwick. The late Justice Lewis Powell, the deciding vote in the 5-4 Bowers decision, later said he probably made a mistake with his decision on that case.

State laws have existed for more than a century

Supporters of the Texas law say states have long regulated behavior deemed "immoral," including gambling and prostitution.

"The government has a legitimate interest in helping preserve not only public health, but public morals as well," said Ken Connor, president of the Family Research Council, which filed a legal brief backing Texas. "The mere fact that this behavior occurs in private doesn't mean the public doesn't have a stake in these behaviors."

State sodomy laws have been on the books for a century or more, and generally define the act sodomy as "abnormal" sex, including oral and anal sex. Such laws were on the books of every state as recently as 1960.

Legal experts on both sides of the issue acknowledge such laws are rarely enforced, but can serve to underpin a basic message of morality in society that courts and government have supported.

The 1986 Bowers case focused on the right to privacy. By the time of Bowers, 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.

Already the case has entered the national political debate, stirred by recent comments from Sen. Rick Santorum. The Pennsylvania Republican told The Associated Press in May, "If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything."

Santorum defended his remarks but some fellow Republicans distanced themselves from them.

The case is Lawrence and Garner v. Texas, case no. 02-0102).

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