THE SUPREME COURT TAKES A SAME-SEX SODOMY CASE:
Why Sexual Orientation Discrimination is Also Sex Discrimination

By SHERRY F. COLB

Wednesday, Dec. 18, 2002

Earlier this month, the Supreme Court granted review in Lawrence v. Texas, an appeal of two convictions for consensual, homosexual sodomy. The case invites the Court to revisit the breadth of constitutionally protected privacy and the status of homosexuality in our legal system. It also confronts our judiciary with an instance of sex discrimination that has yet to be recognized as such.

Texas, like three other states in the U.S., specifically makes it a crime for two people of the same sex to engage in "deviate sexual intercourse." Under a state statute, "deviate sexual intercourse," known to many as "sodomy," occurs when there is "any contact between any part of the genitals of one person and the mouth or anus of another person; or ... the penetration of the genitals or the anus of another person with an object."

In the Texas case before the Court, police officers went to a residence in response to a neighbor's false complaint of a weapons disturbance. Upon arrival, the police found no weapons but did observe intimate activities between two men.

Both men were charged with violating the Texas criminal sodomy law and were convicted after offering a plea of no contest. Having been fined for their conduct, the men brought this challenge to the constitutionality of the law, on both privacy and equality grounds.

Bowers v. Hardwick: The Court's Earlier Sodomy Case

To longtime Court watchers, these facts may trigger a sense of deja vu. The last time the Supreme Court considered the validity of laws criminalizing homosexual conduct was in the 1986 case of Bowers v. Hardwick.

There, the Court held that because of our country's long tradition of criminalizing homosexuality, it would be "at best, facetious" to maintain that the Constitution protects a privacy right to engage in such behavior.

The Georgia statute challenged in Hardwick, unlike the Texas law currently before the Court, was gender neutral - it prohibited enumerated sexual acts regardless of whether the partners were of the same or of the opposite sex. A majority of our Supreme Court, however, treated Hardwick as a case about gay sex.

The Court said specifically in Hardwick that "[t]he only claim properly before the Court . . . is Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy."

Thus, the de facto discriminatory enforcement of the Georgia statute against gay couples may have contributed to its survival in Bowers v. Hardwick. (De facto discrimination occurs when a law, neutral on its face, is disproportionately applied to members of a particular group.)

The Statute Plainly Discriminates On the Basis of Sexual Orientation

It is readily apparent that the Texas statute discriminates against gay men and lesbians. In the past, Texas prohibited all "deviate sexual intercourse," just as nine states currently do. In 1973, however, the state amended its deviate intercourse law to limit criminal status to same-sex practitioners of sodomy.

Rather than prohibit private, consensual sexual behavior between all consenting adults, Texas decided that it would now leave heterosexual partners free of government scrutiny in the bedroom and visit that indignity on homosexuals alone.

The Texas Supreme Court roundly rejected the petitioners' discrimination arguments. Under U.S. Supreme Court precedent, the majority pointed out, sexual orientation is not a "suspect classification" like race or national origin - and therefore does not trigger searching judicial review.

Instead, the highest court of Texas asserted, a legal distinction drawn between heterosexuals and homosexuals need only be minimally rational. Because the law in question furthers the State's power to "preserve and protect morality," the court found, the statute is valid despite its patent sexual orientation discrimination.

The Statute Also Discriminates on the Basis of Sex

The defendants raised another argument in favor of striking down the statute: the statute represents not only sexual orientation discrimination, but sex discrimination as well, something for which the Constitution ordinarily demands an "exceedingly persuasive justification."

The highest Court of Texas dismissed this argument out of hand but should not have done so. To see the strength of the argument, consider an analogous decision in the area of race discrimination.

In the 1967 case of Loving v. Virginia, the U.S. Supreme Court struck down a statute prohibiting interracial marriage. It thereby recognized that a law limiting the universe of people from whom an individual may choose a spouse, on the basis of race, represents race discrimination in violation of the Fourteenth Amendment.

Many commentators have since observed that the same principle applies to laws that limit the universe of people with whom a person can have sexual relations, on the basis of gender.

In both cases, the race or sex of the individual charged with a crime counts as an element of the offense. The Texas statute at issue in Lawrence, in other words, discriminates on the basis of sex, because in prosecuting the crime, one must identify the sex of the defendant. If the crime is sodomy with a man, for example, it cannot be prosecuted unless the defendant is shown to be a man.

Not Just Superficial Sex Discrimination

The sex discrimination, in addition, goes deeper than this formal analysis would suggest. Sex discrimination - like race discrimination - is a phenomenon that reflects the belief that different classes of people, defined by sex or by race, should occupy distinct spheres of life.

Historically, men were people of the public sphere who could carry on political activities, provide material sustenance to their wives and children, and run the household. Women, in contrast, were people of the private sphere who could raise children, provide refuge for their men from the cold world out there, and obey the wise dictates of their benevolent husbands. Women who wished to deviate from the assigned feminine role - either within or outside of marriage - were treated with suspicion or worse.

Much has changed - at least in this country - since the time when women were denied the vote and men were permitted to rape their wives with the law's blessing. But sex discrimination has not disappeared. Gay bashing - whether in the form of violence in front of a gay bar or a statute that differentially permits the arrest and prosecution of gay people for engaging in the same acts as straight people do - makes that evident.

Homosexuality as Sex Role Rejection

Persecution of gay men and lesbians in American society amounts to a vestigial directive about the proper roles of women and men. In addition to being nurturing and soft, a woman is expected to yearn for and cultivate a sexual relationship with a man. In addition to being strong and competent and earning more money than women, a man is expected to feel sexual desire for women.

One indication that homosexuality violates traditional male and female role assignment rules is the fact that people raise their eyebrows about male nurses and hairdressers in much the same way as they do about gay men generally.

And just as professions are gender-typed (and thus receive modifications when held by the "wrong" gender, like "male nurse"), so are the categories of people whom one is supposed to find sexually attractive.

The persecution of interracial couples has always been about more than sex. It has served the purpose of keeping people of each race in their proper "place." The "place" of whites was to be dominant and of blacks to be subordinate, and any coupling between the two could potentially threaten the inevitability of that division as the natural order of things.

Discrimination against gay men and lesbians has likewise been about more than a specified contact between genitals and orifices. Men must be dominant, women subordinate, and homosexuality potentially threatens that picture.

People have, over time, become more comfortable with men and women holding jobs and carrying out activities that traditionally belong to the other's sphere. But that comfort is precarious, a reality that is still apparent in the context of reactions to homosexuality.

Children at school continue to stigmatize each other by using slurs for gay men and lesbians. Even tolerant parents report such behavior, as they attempt to teach their children that bigotry is wrong. (I remember hearing such slurs as a child in the 1970's, before I even knew what "sodomy" was.) The hatred reflected in the slurs enforced gender norms then and continues to do so now, albeit with less ferocity.

The Law and Vestigial Sex Discrimination

What gives the hatred continuing strength and legitimacy is the prerogative of states like Texas to authorize police, prosecutors, and judges to arrest, condemn, and punish people for choosing a partner who is "morally" to be reserved to members of the opposite sex.

Accordingly, it is high time that the United States Supreme Court put a stop to this legalized sex discrimination in the form of gay bashing. Because it took the case and because the Court's composition has changed since Hardwick was decided, I am optimistic that it will.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark

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