High court to give 'gays' their own 'Roe'?

The U.S. Supreme Court could soon grant homosexual activists their own "Roe v. Wade" decision, a constitutional guarantee that would undermine scores of laws that protect the traditional family, according to some opponents.

At issue is a challenge to a Texas law barring "homosexual conduct," or sodomy, but some legal minds involved in the case believe the stakes are much higher.

Attorneys for two men convicted of sodomy want the high court to expand the "right of privacy" used as the foundation of the controversial 1973 abortion decision, establishing a constitutional right to practice homosexual sex.

This would be a "huge trump card" for homosexual activists, asserts Texas attorney Kelly Shackleford, an "atomic bomb that they could carry around to attack any law that does not treat homosexuality on an equal basis with heterosexuality."

Lawrence v. Texas challenges a 1986 Supreme Court decision, Bowers v. Hardwick, which said individuals have no federal constitutional right to engage in homosexual acts. Until the 1960s, every state prohibited sodomy, but Texas is now one of just 13 states in which a law exists. The rarely enforced laws carry penalties ranging from fines to 10 years in prison.

Shackleford contends that a high court establishment of such a right would have "massive implications," jeopardizing, if not overturning, thousands of laws that have a definition of marriage embedded in them, from tax laws to custody laws.

"If you don't have a law that says a man and woman can do something and a man and man can't, then every marriage law is unconstitutional," said Shackleford, who wrote a friend-of-the-court brief on behalf of about 70 Texas state lawmakers.

Jordan Lorence, a senior attorney for the Alliance Defense Fund of Scottsdale, Ariz., which also filed a brief in defense of Texas, said it is not certain that a decision against the state would result in striking down marriage laws, but believes there is a "good likelihood."

"I think that the true objective of the Lawrence v. Texas case is laws that act as legal obstacles to homosexuals right now, such as the Defense of Marriage Act, 'Don't ask, don't tell' and laws that prevent adoption of children."

However, Michael Adams, an attorney and spokesman for the Lambda Legal Defense Fund, which brought the case, insists that opponents are overstating the implications.

"We don't think in those terms," he told WND. "For us, the case asks a germane, basic question, which is whether the government has the right to invade the privacy of any citizen in this country."

Issues such as same-sex marriage are separate from this case, Adams contends, but "it would certainly be a major breakthrough for the court to rule that states should not be in the business of making people criminals because of whom they chose to love."

"Nonetheless, winning this case will not open the door for same-sex marriage," he added. "I think that that's an exaggeration and overstatement. There are 13 states that still have sodomy laws, but no state that allows gay and lesbians to marry."

Lorence said it is possible that even if Lambda prevails in this case, courts could decide in future cases that marriage is a legally recognized relationship with definable characteristics – a man can't marry his sister, for example – and thus preserve traditional marriage, "but they might not."

Lambda, he insists, is not being straightforward about its agenda, if it insists this has nothing to do with marriage, noting that the sodomy law is rarely enforced.

"The jailhouses are not going to be emptied from all the people convicted by the Texas sodomy law," he said. "That isn't the legal thing going on."

Along with its "right to privacy" argument, Lambda cites the 14th Amendment's equal-protection clause, contending that same-sex behavior is entitled to the same legal rights as heterosexual behavior.

Among the groups backing Lawrence are Log Cabin Republicans, Republican Unity Coalition, the Cato Institute, Institute for Justice, American Bar Association, National Lesbian and Gay Law Association, American Civil Liberties Union and the National Organization for Women Legal Defense and Education Fund.

Backing Texas are the state attorneys general of Alabama, South Carolina and Utah. Supporting groups include the American Center for Law and Justice, American Family Association, Center for Arizona Policy, Center for Law and Justice International, Center for the Original Intent of the Constitution, Concerned Women for America, Family Research Council, Focus on the Family, Texas legislators, Liberty Counsel, Pro Family Law Center, Texas Eagle Forum; Daughters of Liberty Republican Women of Houston, Texas; Spirit of Freedom Republican Women's Club, Texas Physicians Resource Council, Christian Medical and Dental Association, Catholic Medical Association and United Families International.

Lambda represents John Lawrence and Tyron Garner, who were arrested in Lawrence's Houston home Sept. 17, 1998, and jailed overnight after officers responding to a false "weapon's disturbance" report found the men engaged in private, consensual sex. The men were fined $200 and now are considered sex offenders in several states, Lambda notes.

"This is a tremendously important case for gay people and for everyone who believes in basic freedoms," said Ruth Harlow, Lambda's legal director and the lead attorney in the case. "These laws are an affront to equality, invade the most private sphere of adult life and harm gay people in many ways."

Harlow asserts that the state's power to regulate what happens in a private bedroom is "only the beginning of the damage done by this law and others like it around the country."

"These laws are widely used to justify discrimination against gay people in everyday life," she said. "They're invoked in denying employment to gay people, in refusing custody or visitation for gay parents, and even in intimidating gay people out of exercising their free-speech rights."

Adams points out, for example, that his group defended a Virginia woman who was prevented from adopting a child when it was discovered that she was a lesbian. The argument used against her was that she must be violating the state's sodomy law.

The homosexual advocacy group Human Rights Campaign, or HRC, notes that since the Supreme Court upheld sodomy laws in the Bowers decision, much has changed. Only three justices from that ruling remain on the high court and, since then, 15 states removed their sodomy laws "in large part because of the persistent court efforts of Lambda Legal and the American Civil Liberties Union, as well as state organizations fighting to overturn these laws."

Also, HRC points out, the current court struck down an amendment to Colorado's constitution in 1996 that would have prevented expansion of homosexual rights.

Shackleford argues, however, that the high court could cause great harm to itself by taking this deeply contentious issue away from the states, where it has been decided for more than 200 years.

"If you asked people, is there a right to engage in sodomy in the U.S. Constitution, 100 out of 100 would probably start laughing," he said. "So this would be seen as extreme judicial activism. Five people would be ruling our country rather than the elected people in our state legislatures."

Shackleford's brief on behalf of Texas state lawmakers asserts "this case is about the right of the people and their duly elected representatives to determine state policy regarding marriage, the family and sexual conduct outside of marriage."

The lawmakers said the petitioners "seek a new 'right of privacy' in sexual behavior, not the traditional right grounded in rights of marriage and procreation. There is no natural limitation to the new expansive right sought by petitioners. It is not deeply rooted in the nation's traditions and history and should be rejected."

Shackleford argues that the court essentially could elevate sexual activity to a right equal to free speech, thus undermining laws against incest and prostitution.

The libertarian Institute for Justice, which sides with Lawrence, argues that prostitution is not private, but "public" because it is "commercial." It maintains that incest is an act that can never be properly viewed as consensual, even if between two adults.

But the Alliance Defense Fund's Lorence contends the argument has no "principled stopping point."

"With their argument, they are asking for constitutional protection for all private sex," he told WND. "They are trying to say, if it's commercial, that's different. But why does money changing hands make it any different? I think that is arbitrary line-drawing."

Shackleford believes that although the facts of the case are not as important as the principle, the circumstances surrounding the arrest of Garner and Lawrence are suspicious.

"This was a setup to do what they want to do," he said, arguing that the sodomy law is almost never enforced.

An anonymous caller falsely told police that a crazy man with a gun was in the apartment.

"He leads police into apartment," Shackleford recounted, "and they find two men engaged in anal sodomy."

The Texas attorney insists there is virtually no way to enforce the law because the Fourth Amendment "doesn't allow the government to come into people's homes."

"This case is not about privacy," he said. "They could have made a Fourth Amendment claim, but they didn't; they made a privacy claim, to establish that I can do whatever I want."

Shackleford said he has watched homosexual activists bring "lawsuit after lawsuit here in Texas to overturn the law" and the courts have said "it's a problem of standing; if it's not being applied against you, you can't tell us it's unconstitutional."

"What they are arguing for here is sexual freedom, to make every act an elevated right," he contended.

Lambda's Adams insisted that the case was not a setup. The man who alerted police had no association with homsexual-rights groups and was prosecuted for making a false report, he argued.

"He was somebody in the building who had some kind of an axe to grind, not a friend of theirs, not somebody trying to do him a favor," he said. "Nobody opened the door and let the police in – the door was unlocked – and rather than leaving when they didn't find a criminal, they arrested these gentlemen."

Lawrence and Garner are very private people," he said, "They aren't out in front of any gay pride parade."

I don't believe that what they were doing is morally right, but I don't think anyone is getting hurt by it, other than possible each other knowingly.

I just have to wonder how many people were getting murdered and raped while they were arresting and booking these dudes for poking each other in the butt. Seems like theres a better for law enforcement officers time than going after homosexuals.

Also, did they bust down the door or something? Or did they think it was the pizza guy and just told him to come in while they were going at it. I think its dumb to have laws like this that pertain to adult on adult action, but how on earth did they get caught anyway.

I just have to wonder why people mistake whether a law is constitutional or not for whether it is a good idea or not.

that is 2 different things. Even a reasonable idea (let's stop flag burning) may be unconstitutional, while horrendously bad ideas (let's tax people at 80% and blow it all on needles programs for addicts) can be constitutional.

The real danger is a Court that substitutes its judgment for legislatures and thereby creates an unelected legislature. Expecially on these matters where they want to assault traditional values.

"I have to wonder how many people are getting murdered while" ... huh? our tax dollars go to XYZ. so that means more people get murdered. its a lame argument, totally spiecous.

"How on earth did they get caught anyway. " ? It may have been a set up by gay rights groups to get a good "case" to oppose. It's what happened in Griswold and in Roe v Wade, previous 'privacy' cases in a way.

>>>"He leads police into apartment," Shackleford recounted, "and they find two men engaged in anal sodomy." <<<

Texas Physicians Resource Council, Christian Medical and Dental Association, Catholic Medical Association

II. THE PROHIBITION OF SAME-SEX SODOMY IS RATION-ALLY RELATED TO THE STATE'S INTEREST IN PUBLIC HEALTH A.

The State Has a Legitimate Interest in Regulating Public Health

This Court has long recognized the validity of state regulation of public health and morality. 6 Railroad Co. v. Husen, 95 U. S. 465, 470-71 (1877) (state's police power "is generally said to extend to making regulations promotive of domestic order, morals, health and safety"). Soon after ratification of the Fourteenth Amendment, this Court held that it did not affect a state's police power:

But neither the [Fourteenth] amendment– broad and comprehensive as it is– nor any other amendment, was designed to interfere with the power of the state, some-times termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people . . . .

7 Barbier v. Connolly, 113 U. S. 27, 31 (1884); see also L'Hote v. City of New Orleans, 177 U. S. 587, 596 (1900) (" It has been often said that the police power was not by the Federal Constitution transferred to the nation, but was reserved to the states, and that upon them rests the duty of so exercising it as to protect the public health and morals"). The Court has continued to recognize the valid exercise of police powers promoting public health and morality in recent years. City of Erie v. Pap's A. M., 529 U. S. 277, 298 (2000) (" Erie's efforts to protect public health and safety are clearly within the city's police powers"); Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991) (" The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation").

As I previously stated, my main issue is the immorality of homosexuality. I hope you don't mind if I believe the Bible when it talks about homosexuality. AIDS targets the homosexual community and they can pass that along through blood transfusions. That doesn't happen with someone who only smokes and/or drinks, which I don't consider immorral. I would hope that everyone realizes the benefits of moderation of both drinking and smoking, but you can't say that for homosexuality - one encounter is all it takes to receive a death sentence.

The issue before the Supreme Court is primarily neither a health issue nor a moral one, but a constitutional one. Nowhere in the Constitution is the Federal government, including the judiciary, given the authority to supercede State legislation except insofar as that legislation is un-Constitutional. There have been laws against sodomy for centuries; the prohibition against it dates back to English common law. The right to privacy, derived from the Fourth Amendment, deals with the conduct of government agents in conducting seraches, seizures, and arrests. It does not deal with legislation enacted by a State legislature per se, unless, for example, that legislature attempted to suspend the writ of habeas corpus. Were the U.S. Supreme Court to overturn the Texas sodomy law, it would be as perverse a piece of jurisprudence as Roe v Wade with regard to abortion.

You're right. Even the conservatives on the high bench, Scalia, Rehnquist, and Thomas, are not strict constructionists of the type that infuriated Franklin Roosevelt and his advisors in the New Deal era. They do show some respect for states' rights, are skeptical of social engineering schemes, and oppose the attempts of lower courts to act as de facto legislatures. However, the Supreme Court's conservatives have never met an expansion of Federal or State and local police and prosecutorial powers they did not like.

Rehnquist, Scalia, and Thomas may be the best we can do in the present political climate, or indeed may be better than we can get now given the Democrats' current hard line against conservative judicial appointees. as we see in the Miguel Estrada nomination.

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