Court to Rule on Legality of Private, Consentual Homosexual Acts

The Supreme Court, in a new and far-ranging test of the right to privacy, was urged Monday to extend constitutional protection for the first time to private homosexual acts between consenting adults.

In oral argument, a Harvard law professor representing a Georgia man charged with sodomy told the justices that the Constitution should be invoked to prevent the state from “dictating in embarrassing detail” how adults behave in their bedrooms.

‘Morality of the Majority’

“When government tells people how to conduct the most intimate affairs of their lives . . . there must be a better reason than simply the morality of the majority,” Prof. Laurence H. Tribe said.

But a state’s attorney defended the validity of sodomy laws--and warned that extending constitutional protection to such conduct would invite similar demands to protect polygamy, adultery, consentual incest and possession of illegal drugs.

“The state of Georgia is not acting as ‘Big Brother,’ ” Assistant Atty. Gen. Michael E. Hobbs said. “It is adhering to centuries-old tradition and the conventional morality of its people.”

The case (Bowers vs. Hardwick, 85-140) is one of the most closely followed on the justices’ docket. The right to privacy has been invoked by the court in the past to invalidate state restrictions on interracial marriage, contraception and abortion--but it has never been extended to homosexual activity. A ruling in the Georgia case is likely by July.

In the wake of campaigns by gay rights groups, 26 states, including California, have decriminalized private, consentual homosexual activity among adults, either through legislation or state court decisions. The rest ban such conduct.

The Georgia law bars oral and anal sexual acts by homosexuals and heterosexuals, setting a maximum penalty of 20 years in prison. Like other sodomy laws, it is rarely enforced against private activity because, among other reasons, constitutional restrictions on searches of residences make it difficult to gather evidence.

In 1982, Michael Hardwick was arrested by Atlanta policemen on charges of committing sodomy with another man in his home. Officers had gone to the residence to serve a summons on Hardwick in a case involving a charge of drinking in public, and a third party, answering the door, directed the officers to Hardwick’s bedroom.

Hardwick, now 33, was never indicted but challenged the law in a federal civil rights suit. A federal District Court threw out the suit, but an appeals court in Atlanta reinstated the action, finding that the law violated Hardwick’s “fundamental rights.” The appellate court said that the law could stand only if the state met the extremely difficult legal burden of showing that the statute was justified by a “compelling state interest.”

State authorities, supported by Catholic and fundamentalist religious groups, asked the high court to overturn the decision. Gay rights, feminist and other religious groups filed “friend of the court” briefs supporting the decision, as did California Atty. Gen. John K. Van de Kamp.

Closely Questioned

In Monday’s oral argument, Tribe, closely questioned by the justices, said it would not be necessary to extend constitutional protection to homosexual activity outside the home.

Justice Sandra Day O’Connor, in an apparent reference to acquired immune deficiency syndrome, asked whether sodomy laws might be a defensible means of curbing the spread of “communicable diseases.” Tribe replied that a “narrowly tailored” law aimed at such deterrence would be permissible.

Hobbs said that the Constitution must be invoked to protect legitimate individual rights but that it should not be extended to protect conduct that has been “condemned” by society for hundreds of years.