Justices Engage in Debate Over Equal Rights for Gays

Times Staff Writer

The Supreme Court confronted a cultural and legal divide over "basic American values" Wednesday, as a Texas state lawyer and a gay rights advocate debated who is entitled to the right to privacy at home and equal treatment under the law.

The case of Lawrence vs. Texas began as a dispute over the 1998 arrest of two gay men in a Houston apartment, but it has evolved into a showdown over the legal status of gays and lesbians in American life.

The court was presented with two starkly different views of morality and privacy, and the state's role in upholding both.

Advocates for equal rights for gays were elated after the argument, because only Chief Justice William H. Rehnquist and Justice Antonin Scalia voiced support for the Texas prosecutor.

Indeed, most of the justices looked uncomfortable as a Texas lawyer proclaimed his state's power to enforce "moral disapproval" by arresting adults in their home.

In America, there is no "right to engage in extramarital sexual conduct," said Charles Rosenthal Jr., a Houston district attorney. "Texas has a right to set moral standards for its people," he said, and sex can be made a crime if it is "outside the marital bedroom."

Scalia repeatedly interjected his view that "moral disapproval of homosexuality" is an American tradition, dating back at least 200 years.

At one point, Rehnquist asked if a state could prefer heterosexuals over a homosexual to teach kindergarten.

Before the attorney could answer, Scalia asserted that disapproval of homosexuality would justify such a decision by the state. Otherwise, he said, children "could be induced to follow the path of homosexuality."

But that comment was met with groans in the courtroom and glares from some of the justices.

"This is a fundamental matter of American values," countered Paul M. Smith, a lawyer for the two gay men. "There is a tradition of respect for the privacy of couples at home," he said. "Most people would be shocked to know there could be a knock at the door [of a bedroom], and it would lead to a prosecution" in some states.

Smith also disputed Scalia's view of American history.

In the 18th and 19th centuries, he said, laws referred to certain "despicable acts" and "crimes against nature," but these measures applied to all people, both heterosexuals and homosexuals. Laws directed exclusively at homosexual behavior arose during the middle part of the 20th century, he said.

In one telling exchange, Justice David H. Souter pressed Rosenthal to say when Texas targeted its sex laws at gays.

"When did Texas single out homosexual sodomy?" Souter asked.

Rosenthal responded it had been traditionally illegal in Texas.

When was the law enacted, Souter wanted to know.

Rosenthal said there had been prosecutions of gays from the founding of Texas.

So, when the Legislature met for the first time in 1836, this was on the agenda? Souter asked with amusement.

When did Texas pass the law at issue in this case, Souter asked again.

"It was in 1973," Rosenthal replied.

That year, Texas repealed or relaxed its laws against adultery, fornication, bestiality and sodomy, but added a measure that prohibited "deviate sexual intercourse" between persons of the same sex.

"So this doesn't reflect a long-standing tradition after all," Souter commented.

The three other liberal justices insisted the state's lawyer explain the law's justification.

The issue involves people "inside their own bedroom and not hurting anyone else," said Justice Stephen G. Breyer, asking what the state's interest was.

Homosexual behavior is immoral, Rosenthal said again.

Could the state pass a law that makes it a crime "to tell a lie at the dinner table"? Breyer asked. That is wrong and immoral too, he said.

Possibly so, Rosenthal said.

"What kind of harm to others can you point to in this case?" Souter asked.

Sometimes, the state has to intervene in private behavior. "People can harm themselves, like taking drugs," Rosenthal said.

Are you saying the state of Texas views gays like drug users, Justice Ruth Bader Ginsburg wanted to know.

No, Rosenthal answered, agreeing there was a difference.

"Obviously, the subject of homosexual rights is highly emotional for the petitioners," Rosenthal said, referring to the lawyers seeking equal rights for gays. But he concluded, "It is the right of the state and its people to determine their own destiny. This court should not disenfranchise 23 million Texans."

With that, Rosenthal sat down.

Smith, a Washington lawyer working for the Lambda Legal Defense Fund, said the issue before the court goes far beyond sex. Gays have been treated as "second-class citizens" because antisodomy laws have branded them as criminals, he said.

But that is changing, and not because of the Supreme Court.

In 1961, all 50 states had antisodomy laws. All but 13 have been repealed or struck down by state judges. Texas is one of only four states whose antisodomy laws single out same-sex behavior. The others are Kansas, Missouri and Oklahoma.

Smith urged the court to rule that the state cannot target a minority group and say, "We want these people to be unequal, and we don't want them to have the same rights." He assured the justices that a ruling striking down the Texas law as irrational would not affect traditional marriage.

Smith also urged the court to overrule the 1986 decision in Bowers vs. Hardwick. That 5-4 ruling upheld a Georgia antisodomy law and voiced the view that Americans overwhelmingly disapprove of homosexuality.

"Bowers was wrong when it was decided," Smith said. "The American people have moved on," he said, and have come to accept gays and lesbians.

A ruling in the case is expected in several months.

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