- The Washington Times - Wednesday, March 26, 2003

WASHINGTON, March 26 (UPI) — The Supreme Court, in a case that reaches to the core of American values, heard argument Wednesday on whether Texas or any other state can ban private homosexual conduct between consenting adults.

A gay couple — charged with violating the sodomy ban after police entered a Houston area home and found them having sex — is challenging the Texas ban.

Speaking for the couple before the Supreme Court Wednesday, Washington attorney Paul Smith said his clients were asking the court to rule on more than just the unfairness of the law.

The Texas statute applies only to homosexuals, and the couple contends that violates the 14th Amendment's guarantee of equal protection under the law.

Smith said his clients are also asking the Supreme Court to recognize "the right of all adult couples, whether same-sex or not, to be free from all forms of government intrusion into their chosen method of sexual expression."

Speaking for Texas, Harris County District Attorney Charles Rosenthal Jr. said the Lone Star State's ban "does not violate the 14th Amendment … because the Constitution has never recognized a fundamental right to engage in extra-marital sex."

Moreover, the law targets homosexual conduct, Rosenthal said, not homosexuals themselves.

Texas and Kansas ban homosexual sodomy outright. Missouri enforces its ban in only parts of the state. Oklahoma's ban against sodomy by heterosexuals and homosexuals alike has been reduced by a court ruling to a ban against homosexuals only.

Another nine states ban sodomy, or anal sex, for everyone, at least outside of marriage.

"At the most specific level," Texas told the Supreme Court in a brief before the argument, "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."

The Supreme Court last ruled in 1986's Bowers vs. Hardwick that homosexual conduct was not protected by the Constitution. The decision upheld Georgia's sodomy ban. The Texas two men are asking the justices to reverse that 1986 precedent.

Sheriff's deputies entered John Lawrence's home late in the evening of Sept. 17, 1998, to investigate what turned out to be a false report from a neighbor of a "weapon disturbance."

"There, they intruded on Lawrence and (Tyron) Garner having sex," the men's petition said.

After being convicted in a justice of the peace court, the men filed motions to suppress the charges on the grounds that the law is unconstitutional.

When those motions failed, the men pleaded no contest, were found guilty and paid $200 fines, plus court costs.

Though a three-judge panel of the state Court of Appeals reversed the men's convictions under the Texas Equal Rights Amendment, the full appeals court reversed.

The Supreme Court of the United States then agreed to review the case.

In Wednesday's argument, Smith constantly reinforced his argument that the case involved a fundamental right of all people, not just a violation of the equal protection clause that affected homosexuals.

Only one member of the nine-member court actively questioned him. Justice Antonin Scalia repeatedly probed Smith's argument for weaknesses.

The law unfairly targets homosexuals, Smith argued. Even Texas concedes that the sexual conduct of married couples cannot be regulated.

"Maybe so," Scalia shot back, "but I haven't conceded it."

Smith tried to parry Scalia's contention that a fundamental right had to be recognized throughout the nation's history before it could be recognized by the courts. Some rights evolve, Smith said.

"The American people have moved on to where they assume that (sexual) right is available to everyone," Smith said. "They would be shocked if they knew" that some states still ban sodomy.

In making his argument for Texas, Rosenthal repeatedly emphasized states' rights.

The Supreme Court settled the matter in its 1986 decision in the Georgia case, he said, adding, "We believe Bowers vs. Hardwick is good law."

As for Smith's argument on the evolution of public attitudes, Rosenthal said, "There's nothing in the values or mores of our country that have changed" since Bowers. "There is no fundamental right."

If a change in the law should be made, Rosenthal argued, it should come "from the Statehouse of Texas, not this court," and the impetus should come from "the people of Texas."

Texas has the right to regulate any sexual behavior, up to a certain "line," when it doesn't approve of the behavior, Rosenthal insisted: "It's our position that line should drawn at the marital bedroom."

Not all of Wednesday's argument was serious, and several exchanges drew laughter from the audience.

Justice Stephen Breyer told Rosenthal it appeared that Texas was claiming the right to ban private sexual behavior simply because it didn't like it.

From the bench, Breyer quoted in its entirety a poem written in 1680 by an Oxford student, Tom Brown, who was temporarily "sent down," or expelled, by a professor, Dr. John Fell.

"I do not love thee, Dr. Fell, The reason why I cannot tell; But this alone I know full well, I do not love thee, Dr. Fell."

The Supreme Court should rule on the case before recessing for the summer in late June or early July.

(No. 02-102, Lawrence and Garner vs. the State of Texas.)

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