Supreme Court Will Rule on Legality of Homosexual Acts

The Supreme Court, clearing the way for its first major gay rights ruling in two decades, agreed Monday to decide whether the Constitution permits prosecution of adult homosexuals for private, consensual sex acts.

The court said in a brief order that it will review the legality of a little-enforced Georgia sodomy law that was found by a federal appellate panel in Atlanta last May to violate the right to privacy. Homosexuals were as entitled to privacy protections as married couples, the panel concluded.

The justices made their decision at a time when homosexual activists have been increasingly insistent in asserting claims to legal protection--and as lower courts have found themselves in conflict over the politically sensitive issue of “gay rights.”

Navy Case Not Affected

In contrast to the ruling by the Atlanta appeals court, the U.S. 5th Circuit Court of Appeals in New Orleans last August upheld a Texas law forbidding sexual intercourse among homosexuals. In another case, a federal appellate panel here ruled last year that the right to privacy did not bar the Navy from discharging a sailor for homosexual conduct.

Although sodomy laws are still well established, many states in recent years have moved to legalize private consensual homosexual activity. According to the American Civil Liberties Union, legislatures in 22 states, including California, have decriminalized such activity, and courts in two others have declared sodomy laws unconstitutional.

In their last major ruling on the issue, the justices themselves ruled in 1967 that homosexual aliens could be deported as “psychopathic personalities.” In 1976, without issuing their own opinion, they summarily affirmed a lower court decision upholding Virginia’s sodomy law. Recently, they have sidestepped several opportunities to issue broad rulings in gay rights cases.

Man Seized in Atlanta

The new case before the court (Bowers vs. Hardwick, 85-140) began in 1982 when Atlanta police arrested 28-year-old Michael Hardwick for committing sodomy with another male in his residence. Police had come to the home to serve a summons to Hardwick on another charge and were allowed to enter by a third person.

The Georgia sodomy statute applies to both homosexuals and heterosexuals, barring acts of anal and oral intercourse. The penalty for violation ranges from one year to 20 years imprisonment.

Hardwick was never prosecuted, but he and a married couple filed suit challenging the law, saying it violated their right to privacy. A U.S. District Court ruled that the couple lacked standing to sue because there was no evidence that the law would ever be enforced against them; the court also dismissed Hardwick’s action, citing the Supreme Court’s 1976 summary affirmance of the Virginia sodomy law.

‘Compelling Interest’

The appellate court, however, said that the issue was not resolved by the 1976 action and that Hardwick could pursue his suit. It said that to win, Georgia authorities must meet the difficult legal burden of showing that there was a “compelling interest” in such a law.

“The activity (Hardwick) hopes to engage in is quintessentially private and lies at the heart of an intimate association beyond the proper reach of state regulation,” the court said. “ . . . For some, the sexual activity in question here serves the same purpose as the intimacy of marriage.”

Georgia Atty. Gen. Michael J. Bowers appealed the ruling to the Supreme Court, saying that homosexual activity was entitled to no such constitutional protection and that, if upheld, the decision could cast doubt on a wide array of statutes that restrict private conduct--such as laws against suicide, prostitution, polygamy and the personal possession and use of marijuana.

Law Called ‘Irrational’

In other action Monday, the court:

--Agreed to review a federal law that permanently prohibits former mental patients from buying firearms. A federal district judge in New Jersey struck down the law last February as unconstitutional, saying it was “irrational” to bar former patients from buying guns while allowing some exceptions for former felons.

The law, part of the Omnibus Crime Control and Safe Streets Act of 1968, prevents anyone who has been judged a “mental defective” or committed to a mental institution from receiving or transporting guns in interstate commerce. The statute also prevents federally licensed firearms dealers from selling guns to such persons.

The prohibition was challenged by Anthony Galioto of West Orange, N.J., now 57, who had been hospitalized for 23 days in 1971. Government lawyers urged the justices to reinstate the law, but a coalition of mental health groups told the court that such restrictions infringed on “the fundamental rights of former mental patients to keep and bear arms.” (U.S. Dept. of Treasury vs. Galioto, 84-1904.)

--Let stand, over two dissents, an Ohio court ruling that a high school coach is not a public figure and thus can collect libel damages without proving “actual malice”--that the alleged defamation was published with the knowledge that it was false or with reckless disregard for the truth. The coach, Michael Milkovich, brought suit 10 years ago against the Lorain Journal over a sports columnist’s accusation that in a court hearing the coach had lied about his role in a melee that erupted among spectators and team members at a wrestling match.

Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, said the court should have reviewed the ruling, which he said could discourage smaller papers from reporting on local controversies. (Lorain Journal vs. Milkovich, 84-1731).