WASHINGTON (AP) – The Supreme Court reopened a homosexual rights issue yesterday, agreeing to decide a case that asks if it’s unconstitutional for states to punish same-sex couples for having sex.

Justices will decide if Texas violated the rights of two men convicted, under a rarely used state law, of having intercourse.

The Supreme Court has struggled with how much protection the Constitution offers in the bedroom. The Court ruled 5-4 in 1986 that consenting adults have no constitutional right to private homosexual sex, upholding laws that ban sodomy.

The latest case gives the Court a chance to overturn that decision and strike down sodomy laws in Texas and 12 other states.

“I think most Americans would be shocked that there are still laws like this on the books,” said the Texas men’s lawyer, Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund in New York.

She said the latest census found more than 600,000 households of same-sex partners in America, including about 43,000 in Texas.

Richard Ackerman, an attorney for the California-based Pro-Family Law Center, said he worried that the case might energize efforts to recognize same-sex marriages. He also said that states should be given leeway to protect the public from the spread of diseases like AIDS.

The court will consider: Is it an unconstitutional invasion of privacy for couples to be prosecuted for what they do in their own homes? Is it unconstitutional for states to treat gays and lesbians differently by punishing them for having sex while allowing heterosexual couples to engage in the same acts without penalties?

Sodomy is abnormal sex, and in some states that’s defined as anal and oral sex. Nine states ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. In addition, Texas, Kansas, Missouri and Oklahoma punish only homosexual sodomy.

States argue that the laws are intended to preserve public morals. They are rarely enforced.

“We don’t believe there’s any fundamental right to engage in sexual conduct of this kind. There’s a long-standing shared cultural belief that the conduct is wrong,” William Delmore, an assistant district attorney in Texas, said yesterday.

John Geddes Lawrence and Tyron Garner were arrested in 1998 in Lawrence’s apartment, jailed overnight and later fined under Texas’ Homosexual Conduct Law, which classifies anal or oral sex between two men or two women as deviate sexual intercourse.

The Supreme Court was told the convictions would prevent the men from getting certain jobs, and would in some states require them to register as sex offenders. They were arrested after police responded to a false report of an armed intruder in Lawrence’s apartment, called in by an acquaintance of the men. Police entered the unlocked apartment and found the men having sex.

Lawrence and Garner were fined $200 after pleading no contest to misdemeanor charges.

Over the past decade, state courts have blocked sodomy laws in Arkansas, Georgia, Kentucky, Montana, and Tennessee. A Louisiana appeals court recently upheld that state’s 197-year-old law banning all oral and anal sex.

The Supreme Court’s 1986 decision, Bowers v. Hardwick, involved a challenge of Georgia’s law, which carried a maximum penalty of 20 years in prison for anyone who engaged in sodomy.

The case is Lawrence v. Texas, 02-102.

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