The Supreme Court’s docket for the coming term will include a case that deals with two gay men convicted of sodomy in Texas. You may be surprised to learn that sodomy, generally defined as oral or anal sex between adults, is still illegal in 15 states. The Supreme Court ruled 16 years ago that states had a right to regulate “public morals” and upheld sodomy laws. Texas, though, is one of four states with sodomy laws that apply only to gays and lesbians. It is on that basis that the law is being challenged.
Any effort to improve the rights of gays and lesbians is usually met with an outcry that “special rights” are being created. In this case, “special penalties” are being imposed. The Texas sodomy law essentially recognizes gays and lesbians as a special class for prosecution—the act that earned the two men a $200 fine is perfectly legal between a man and a woman. As these laws deny equal protection, the Supreme Court should overturn them and end prosecutorial discrimination.
While $200 may not seem like an outrageous penalty, such a crime can lead to difficulties in employment, disbarment for attorneys, and most frequently, loss in child custody battles. The maximum fine of $500 in Texas is on the low end of the penalties that can apply for sodomy convictions. In Idaho, a state where sodomy is illegal in all cases, the penalty for a sodomy conviction is five years to life behind bars.
Since most sodomy charges are either brought against inmates or in addition to rape charges, it is impossible to estimate how many otherwise innocent gay and lesbian couples have been prosecuted by these laws. But by essentially criminalizing their lives, courts have held that they are ineligible for child custody because of the assumption that they are breaking the law. A string of high profile cases has highlighted the assault on privacy that these laws create. The actual Supreme Court case, for instance, was begun when the police entered a house after a false report of a crazy man with a gun. They found the two surprised men engaged in sodomy, and promptly arrested them and held them overnight.
In another case, in Kansas, a man is serving 17 years because as a 19-year old, he had consensual oral sex with his 15-year old boyfriend. A special Kansas law makes the penalty for straight teenagers a matter of months.
The law should not enter the bedrooms of America to regulate the ways consenting adults can touch each other. It especially should not enter by kicking down the door to hunt down our nation’s gays and lesbians.
