Why Sodomy Statutes Violate Religious Freedom

The Supreme Court's decision on Lawrence v. Texas will say a lot about where our values come from

BY: Janet R. Jakobsen and Ann Pellegrini

From Ascribe Newswire

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.

Continued on page 2: »