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Last Updated:  Wednesday, 26 March, 2003, 18:31 GMT
US Supreme Court hears gay case

By Steve Schifferes
BBC News Online in Washington

Gay men (generic)
Very few states still officially ban homosexual intercourse
The United States Supreme Court has heard arguments in what could be the most significant gay-rights case in many years.

Two men arrested for having sex in Texas in 1998 charge that the state's sodomy law unfairly infringes on their right to privacy and to the equal protection of the law.

Texas argues that the US Constitution does not endorse a "right to engage in sexual misconduct outside the venerable institution of marriage".

The case, Lawrence v Texas, gives the court the chance to make its most sweeping ruling on gay rights since a controversial 1986 ruling that allowed states to outlaw sodomy.

In arguments before the court on Wednesday, Houston District Attorney Charles Rosenthal, was closely questioned by several justices on just what harm the conduct banned by Texas caused.

State bans

Only 13 US states still officially outlaw private oral or anal sex between consenting adults, compared to nearly all states 50 years ago.

Supreme Court of the United States (Courtesy US Information Agency)
The court has increasing yielded to states' rights
Of those, four - including Texas - ban homosexual anal sex exclusively.

But Justice Antonin Scalia, one of the most conservative members of the court, asked how long sodomy had been a crime in Texas, pointing out that legal rights protected by the constitution had be to be well-founded and deeply rooted.

It has had such a statute since 1854 - but in 1973 it changed the law to apply only to same-sex couples.

In the case being considered by the court, two men, John Lawrence and Tyron Garner, were arrested after a neighbour falsely reported that a man with a gun was "going crazy" in Mr Lawrence's apartment.

The neighbour was convicted of filing a false report, but Mr Lawrence and Mr Garner were arrested, jailed overnight, and fined $200 each plus court costs.

Broader issue

In addition to gay-rights campaigners, the two men are being supported by some conservative and libertarian groups that argue the government should not interfere in citizens' sexual lives.

Texas has the support of conservative religious groups and three other states - Alabama, South Carolina and Utah.

In last four decades, the US Supreme Court has established a right of privacy that extends to a range of sexual conduct - including the right to contraception and abortion, even for unmarried couples.

Justices Stephen Breyer and Ruth Bader Ginsberg, in particular, asked how the state of Texas could justify allowing homosexual couples to adopt children and raise a family, yet ban their sexual practices.

But the state of Texas argued strongly that in matters of morals, the state legislature should have the right to decide what standards should apply in the community.

"Twenty-three million Texans are asking for the right to participate in decisions on moral issues," Mr Rosenthal said.

In recent rulings, particularly ones relating to sentencing, the Supreme Court has granted increasing discretion to states to make their own decisions.

So this case could be central in defining the end of a era of social activism by the Court that reshaped America.

Options for decision

The Supreme Court has a number of options in deciding the case:

  • It can rule that the Texas law is constitutional

  • It can rule that the law unfairly discriminates against homosexuals - meaning that states can ban certain sexual activity as long as it bans it for everyone, heterosexual and gay alike

  • It can reverse its 1986 decision, Bowers v Hardwick, essentially ordering the government out of the bedroom in the case of consensual sex between adults

Three of the nine judges who were on the court in 1986 are still there today.

Chief Justice William Rehnquist and Justice Sandra Day O'Connor voted with the majority. Justice John Paul Stevens dissented.

The late Lewis Powell, who cast the deciding vote in the 5-4 1986 ruling, later said the losing side had the stronger case.

A ruling is expected by the end of June.

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