Equal Rights for Gays Faces Supreme Court Test

Times Staff Writer

The gay equal rights movement, which has been steadily growing in strength, faces a crucial test in the Supreme Court this week.

The court has never said gays and lesbians are entitled to equal rights, and has upheld laws branding them as criminals for having sex.

Adding insult to injury, in a 1986 opinion the court described abhorrence of homosexuality as time-honored and traditional. It would "cast aside millennia of moral teaching" to say sex between gay men "is somehow protected as a fundamental right," then-Chief Justice Warren E. Burger said in the case of Bowers vs. Hardwick.

Now, 17 years later, the court is being asked to cast aside Burger's view as bigoted and archaic.

Gay civil rights leaders say public opinion regarding homosexuality has changed dramatically since 1986. These days, the "real social and legal deviants" are not gay people but "homosexual sodomy laws" that remain on the books in 13 states, says the Human Rights Campaign, which calls itself America's largest gay and lesbian group.

On Wednesday, the court will hear a Texas case that asks the justices not just to throw out the prosecution of two men who were arrested for having sex in the Houston home of one of the men, but to declare that the Constitution gives same-sex couples the same rights to privacy and equality as heterosexuals.

Such a statement would be a milestone on the road to full equality, rights lawyers say.

"This is the most important gay rights case in a generation," says Ruth E. Harlow, a lawyer for the Lambda Legal Defense Fund. "We believe America has moved beyond these [antisodomy] laws. And we're hoping the court will say all adults have the same right to privacy, and you can't have a different rule for gay people."

On Sept. 17, 1998, police received a report -- false, it turned out -- of a man with a gun at an apartment complex, and they broke into the residence of John Lawrence. They found him with Tyron Garner, and arrested both for violating the Texas law against "deviate sexual intercourse."

Most states, including California, repealed sodomy laws during the 1970s and 1980s. But not Texas, which prosecuted Lawrence and Garner and secured fines of $200 each.

"We think the court is behind the times and Texas is behind the times" on this issue, says Harlow, who appealed Lawrence's case to the high court.

The symbolic significance of these antisodomy laws goes well beyond their role as regulator of sexual conduct, legal experts say.

"These laws don't send people to jail, but they are a brand of disapproval for gay people. They are used across the board as arguments against them," said William B. Rubenstein, a UCLA law professor and an expert on sexual orientation law.

Often, in cases involving child custody, adoptions and public employment, antisodomy laws are invoked against gays or lesbians, he said.

For example, Linda Kaufman, an Episcopal priest and a lesbian who lives in Arlington, Va., said she and her partner were trying to adopt a second foster child from the District of Columbia. Adoption workers agreed they had a good home and family, but Virginia officials cited "crimes against nature" in saying Kaufman and her partner were unfit to adopt. Kaufman is suing the state.

If the high court were to say these laws are irrational and discriminatory, it would affect a wide variety of such cases, Rubenstein said.

About 2.8% of adult men and 1.4% of women identify themselves as gay, lesbian or bisexual, according to the government's National Health and Social Life Survey. If accurate -- and the Human Rights Campaign cites this survey as the most reliable of its kind -- it means the nation has about 4 million openly gay men and 2 million lesbians.

The case, Lawrence vs. Texas, has split conservatives.

Traditionalists have sided with Texas, saying marriage and family are threatened by an equal-rights ruling for gays. However, libertarian conservatives say the government has no business in the bedroom.

Texas state lawyers say the court should consider dismissing the case. Failing that, they say, the justices should rule there is no "constitutional right to engage in extramarital sexual conduct." If the court were to recognize such a right, it could undercut or even invalidate laws against adultery, polygamy, prostitution and incest, they say.

Such a ruling would "strike at the institution of marriage itself" and "further push this nation toward sexual libertinism," says the American Center for Law and Justice, which is based in Virginia Beach, Va.

Lawyers seeking equal rights for gays respond that they are arguing only for a constitutional right of privacy among consenting adults. Public or commercial transactions with prostitutes are not included, they say.

Two prominent libertarian groups -- the Cato Institute and the Institute for Justice -- say the government should not be allowed to meddle in purely private matters.

"This case is about the proper scope of and limits on government power more than it is about homosexuality and homosexual conduct," says the Institute for Justice, a Washington group that has championed causes such as "school choice" through vouchers.

During the 1990s, the Supreme Court stayed away from most disputes over civil rights for gay people. The justices repeatedly ignored appeals that challenged the military's ban on those who are openly gay.

Two rulings lean in opposite directions. In 1996, the court struck down a Colorado voter initiative that voided all local ordinances related to the rights of gays. In a 6-3 decision, the justices described the ballot measure as irrational and discriminatory.

But three years ago the court reversed the New Jersey courts and ruled in a 5-4 vote that the Boy Scouts were entitled to kick out a well-regarded scoutmaster who said he was gay.

Only three justices remain from the 1986 ruling. They are Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor, who were in the majority, and Justice John Paul Stevens.

But O'Connor and Justice Anthony M. Kennedy, both Reagan appointees, voted to strike down the Colorado initiative, and rights lawyers are hoping they will join with the four liberal justices to rule against Texas in the new case.

A ruling is not likely until June.

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