Private lives, public trial

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In September 1998, the Houston police department received a tip-off that a black man was "going crazy" in John Lawrence’s apartment. When the police arrived they discovered this was palpably not the case - but they also discovered Lawrence, then aged 55, having sex with his partner Tyron Garner, then 31.

In most parts of the United States that would have been the end of the matter. In Texas, however, they do things differently.

The two men were charged with committing a C-Grade misdemeanour under Texas’s Homosexual Conduct statute, which prohibits oral or anal sex between members of the same sex. They were hauled off to jail in their underwear and kept in the cells overnight. At their trial they pleaded no contest after an appeal on the constitutionality of the law was thrown out and were each fined $200.

This week their case finally made it to the Supreme Court of the United States. If it overturns the decisions made by Texan courts, its ruling will extend to every other state with such laws. Gay rights campaigners will claim an important victory.

It has been a long haul to get to this point. In 1960, every state had a sodomy law. Since then gay rights campaigners have successfully campaigned for those laws to be struck down in 37 states. Of the 13 states with sodomy laws, four - Texas, Kansas, Oklahoma and Missouri - prohibit "deviate sexual intercourse," or oral and anal sex, between same-sex couples. Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia prohibit consensual sodomy for everyone.

"Many Americans would be appalled to know that these laws are still on the statures," says Michael Adams, a member of Lawrence and Garners’ defence team. "But our Constitution simply does not allow gay-bashing. Privacy is an American value, regardless of sexual orientation."

Lawrence and Garner have a dual defence: they argue that Texas is in contravention of the 14th Amendment to the Constitution which guarantees equal treatment under the law and, secondly, that this is a privacy case and the state has no business interfering with whatever high jinks consenting adults may choose to get up to in their own bedrooms.

Texas, in fact, modified its sodomy laws in 1973. Until then masturbation, oral and anal sex had all been prohibited by law. The new statute decriminalised sodomy between men and women, masturbation and even bestiality, but continued to penalise homosexuals. George W Bush may have referred to the law as "a symbolic gesture of traditional values" when he was governor of Texas, but for many gays it is a concrete example of their position as second class citizens.

District Attorney Chuck Rosenthal told a packed Supreme Court on Wednesday that any change in the law should come "from the Statehouse of Texas," not Washington, and he raised the ancient flag of "states rights" to regulate as they see fit, within the boundaries laid down by the Constitution. Furthermore, he argued, Texas did not prohibit homosexuality, merely homosexual acts. In any case, "the nation has a long-standing tradition, only recently waning, of criminalising anal sodomy - the offence once known as ‘buggery’ - as a serious criminal offence". Of course, gay rights campaigners gently point out, the United States once had a long-standing tradition, only recently waning, of enshrining discrimination on racial and sexual grounds too.

"They struggled to explain, however, " says Adams wryly, "how these acts are harmful when some people enact them, but not when others do."

The argument is becoming increasingly heated, however. "For homosexual activists, this case is their Supreme Court Super Bowl - the next step in their pursuit of same-sex marriage," says Jan LaRue of Concerned Women for America, which joined those filing briefs supporting the Texas law.

A rival brief filed for the defence by the lobby group Human Rights Campaign refers to Mark Bingham, a gay passenger aboard United flight 93 on 11 September, who played a leading role in the efforts to retake control of the plane from its terrorist hijackers. The brief notes, simply, that: "To his country, Mark Bingham is a hero; in Texas, he is a criminal."

Some gay campaigners welcome the case, even while regretting the distress caused to the two men, neither of whom has given an interview on their situation. "This issue is about two consenting adults in the privacy of their own home," says Reverend Michael Piazza, Dean of the world’s largest gay church, the Cathedral of Hope in Dallas. "This has nothing to do with homosexuality really. It is a question of whether everyone has equal protection under the law."

If the case has highlighted the schism between "red" or Republican and "blue" or Democrat America, is has also drawn attention to the divide on the right between libertarianism and traditional social conservatism. Libertarians believe the case offers a chance to limit the power of government to interfere in people’s private lives; social conservatives fear that it will only legitimise a mortal sin.

"If equality means something in the Constitution, what it means is that identical behaviour by people should be treated similarly, and gays shouldn’t be singled out for punishment for behaviour that Texas finds perfectly fine for straights," says Eric Jaffe, a former clerk for Supreme Court Justice Clarence Thomas and co-author of a brief filed for the defendants by the Republican Unity Coalition, which works to increase support for gays within the Republican party and among gays for the party. "At some point, you just look at the thing and find it hard to explain in terms other than discrimination."

Perhaps. But some conservatives, including the likes of the preacher Jerry Falwell, are worried that Lawrence v Texas represents another assault on traditional family values. Other conservatives go further still. "If you say this case should be overturned because societal mores have changed you open up all sorts of things," says Gary Kreep of the conservative United States Justice Foundation. "What about paedophilia? If society decides some day it’s OK to molest little boys, does that mean the law should be changed to say it’s OK to do so?"

Kreep, who is concerned that the court’s decision to hear the case in the first place suggests it may well side with Lawrence and Garner, argues that the anti-sodomy law is, in principle, little different from laws requiring motorcyclists to wear helmets, or anti-smoking provisions. "The state has the right to enact laws that protect us from ourselves," in this instance, he says, from the risk of HIV and Aids.

According to Virginia Postrel, a Texas-based writer and libertarian: "Repealing the sodomy law would offend the very large number of traditionalist Christians here, most of whom are perfectly tolerant of gays in day-to-day interactions but who still hold the belief that homosexuality is both a sin and a threat to the social fabric. Unless you’ve lived someplace like Dallas, where church attendance is the norm and most people combine traditional beliefs with socially tolerant behaviour, it’s hard to imagine this odd combination."

That pattern of belief helps explain why the Cathedral of Hope has been so successful in Texas. "It’s a very southern thing, and Texas has become a more southern state in recent years," says Rev Piazza. "I grew up in Alabama where people could be incredibly racist and yet have a black American as their best friend."

Glen Maxey sympathises with that point of view. The openly gay member of the Texas state legislature recalled, when he retired in January, that: "People would ask me, ‘How can you legally be here? How can you be a member of the legislature if you have taken an oath to uphold the law?’ "

The last time the issue of sodomy came before the Supreme Court was in 1986 when the Court upheld, by a 5-4 margin, Georgia’s right to ban sodomy. Georgia’s law, since repealed, prohibited sodomy regardless of sexual persuasion (although in practice only homosexuals were prosecuted). Most legal experts believe the court will, at the very least, rule that Texas’s laws are incompatible with the 14th Amendment which guarantees equal treatment under the law. "Times have changed," says Michael Tushnet, professor of constitutional law at Georgetown University. "There are new Justices on the court and conservatives are now more sympathetic to gay rights."

Professor Randy Barnett, of Boston University’s law school, goes further, arguing: "Legislation with an exclusively moral purpose is impervious to rational basis analysis and that fact in itself indicates that the law is not legitimate."

The court has the option to side with Texas and uphold its statues, it could simply rule that Texas’s laws are discriminatory since they apply only to gays or it could take a broader approach, ruling that the privacy issue is of equal importance and at a stroke strike down all sodomy laws in the US.

Removing the sodomy laws would represent a coup for homosexual activists. The battle for recognition and equal treatment would then move back to gay marriage rights, as well as the rights of gay men and women to be foster parents and to adopt. None of those fights will be won easily. Nor will the struggle to have the US military accept openly gay men. Last year 906 people were discharged from the military because of sexual orientation.

Meanwhile, gay rights campaigners are confident that they win this battle when the Supreme Court delivers its verdict in June. But they know their own war isn’t over yet.