New York, March 26--(AScribe Newswire) Today, the Supreme Court will consider the state's right to criminalize private consensual sexual conduct between persons of the same sex. The case at hand is Lawrence v. Texas, and it offers the Court an opportunity to revisit Bowers v. Hardwick (1986). In that case, a divided Court upheld the constitutionality of Georgia's sodomy statute by a vote of 5-4.
Lawrence began in September 1998, when police responded to a report of a man behaving erratically with a gun at the Houston home of John Lawrence. (One of Lawrence's neighbors had deliberately called in a false report.) Upon entering the apartment, the police discovered Lawrence and another man, Tyron Garner, having sex, and arrested the pair under Texas's Homosexual Conduct Law. That 1974 law applies to "deviate sexual intercourse with another individual of the same sex."
Lawrence and Garner pled no contest and were fined. They also appealed their convictions. This appeal is now before the Court.
Serious constitutional issues are at stake in Lawrence, which go beyond sex to touch on important American rights and values. Lawyers for Lawrence and Garner will argue that Texas's Homosexual Conduct Law violated the men's rights to due process and equal protection. This is because that law applies only to sex between individuals of the same sex; the same acts committed under the same circumstances by individuals of the opposite sex were, and remain, perfectly legal in the state of Texas.
In practical terms, this means the consensual sexual activities of an entire class of citizens are outlawed not because of what they do, but because of who they are: homosexuals. (In addition to Texas, three other states have sodomy laws that apply only to homosexual sex: Kansas, Missouri, and Oklahoma.)
Lawrence's and Garner's advocates do well to raise the due process and equal protection claims. These are vital and constitutionally recognized rights. In our view, however, another key constitutional principle is being violated: the First Amendment's guarantees of religious freedom.
The morality that Texas claims to be public is not universally shared. It is rather the expression of particular religious views. At their base, all U.S. laws against sodomy are traceable to a specific version of Christian ideas about sexual morality. Chief Justice Warren Burger was open and direct about this in his concurring opinion in 1986's Hardwick decision. He pointed out that sodomy laws in the United States are borrowed from the common law of England, a body of law that developed out of ecclesiastical law during the Protestant Reformation.
At that time, powers to regulate private sexual conduct passed from church authorities to the state. Religiously based regulation of sexuality may have been acceptable in a nation with an established church, such as England, but the United States is supposed to be based on the disestablishment of any official church and on the freedom to practice one's religion, or to practice no religion at all.
As the Lawrence case shows, secular law continues to enforce a specific set of Christian ideas about what is and is not "good" sex. This view of sexual morality is sectarian. There is great debate even within Christian churches about the morality of homosexual acts. Crucially, even if all Christian churches agreed on the "homosexual question"--even if all religions agreed--religious justification alone would not be a sufficient basis for the state's enforcement of sexual morality. The freedom not to be religious-a crucial freedom of conscience-must also be protected.
In nine other states, sodomy laws are technically applicable to both homosexuals and heterosexuals (as Texas's was prior to 1974). The equal protection argument would not affect these laws. An argument based upon religious freedom would. After all, the government should not be in the business of telling heterosexuals what to do in their consensual sexual relations either.
Lawrence v. Texas, then, is not just about justice for John Lawrence and Tyron Garner. It is not just about homosexuality and gay rights more broadly. It also goes to the heart of one of the most cherished freedoms in American life: the freedom to act on one's own conscience without fear of interference or harassment from the state.
Too often public discussions about religion and sex proceed as if religion and sex are opposed values. This is especially so in debates over homosexuality. However, sexual justice and sexual freedom-including sexual justice and sexual freedom for homosexuals-are not "anti-religious." They are actually part and parcel of any meaningful American commitment to religious freedom. Now is the time for the court to affirm such basic American values.