The Supreme Court heard warnings yesterday that striking down sodomy laws would open a "Pandora's box" leading to legalization of "polygamy, same-sex marriage, consensual incest, adultery, prostitution, bigamy and the personal possession in private of illegal drugs."
Georgia Assistant Attorney General Michael E. Hobbs urged the court to uphold Georgia's sodomy law, which prohibits any homosexual acts among consenting adults.
The justices, Hobbs said, should not interfere "with the right of the nation and of the states to maintain a decent, moral society."
But Harvard Law School Professor Laurence H. Tribe, representing an Atlanta bartender arrested in his bedroom with another man, said the case was "about power . . . the power of the state to dictate the most intimate details of how every adult will behave in the bedroom."
Tribe argued that the Constitution requires states to show special justification for such laws, and requires courts to carefully review any assertions of an "unquestioned authority of Big Brother" to control personal relationships in the privacy of the home.
Georgia's sodomy law, similar to those in 24 states and the District of Columbia, prohibits oral and anal sex and makes those acts a felony punishable by a prison term of from one to 20 years.
The law applies to heterosexual as well as homosexual activity, but as a practical matter most states enforce the laws almost exclusively against homosexual men.
The court, which has for years declined to review state laws regulating sexual conduct, is expected by July to decide for the first time whether the Constitution prohibits states from regulating private sexual activities between consenting adults.
The Atlanta case, Bowers v. Hardwick, began in 1982 when Michael Hardwick, then 29, failed to pay a ticket for drinking in public. A police officer obtained a warrant and went to Hardwick's home, where a man living in the house let the officer in.
The policeman found Hardwick in his bedroom having sex with another man.
Hardwick sued the state, alleging a violation of his right to privacy even though the charges against him had later been dropped. A federal appeals court in Atlanta last May did not strike down the challenged law, but said Georgia prosecutors could not enforce it unless they could show that the law served "a compelling state interest" -- an often insurmountable legal barrier.
The 11th U.S. Circuit Court of Appeals, which covers Florida, Georgia and Alabama, said a constitutional right to privacy protects sexual acts in private between consenting adults.
The Supreme Court upheld a Virginia law similar to Georgia's 10 years ago in Doe v. Virginia. In that case, however, the court summarily upheld the law without hearing arguments and without issuing an opinion.
Such actions are nonetheless considered binding on lower courts, and the 1976 case had been used to strike down numerous challenges to state sodomy laws, including recent challenges here and in New Orleans.
The 11th Circuit panel, however, said the 1976 case was not a controlling precedent.
Hobbs, under close questioning yesterday by several justices, acknowledged that Georgia's law had rarely been enforced and that it probably would be declared unconstitutional if police tried to enforce it against married couples.
But he argued that there is "no fundamental right to engage in homosexual sodomy or any other sexual conduct outside the bonds of marriage." The Constitution protects the right to liberty, Hobbs said, but "liberty is not unrestrained; it is ordered liberty, not licentiousness."
Tribe argued that if the justices do not agree with the appeals court's strong limitations on sodomy laws, the high court should at least require states to justify the need for such restrictions on private behavior. "We champion the principle of limited government, not unrestricted rights," Tribe said.
In another case argued yesterday, an attorney for the city of Riverside, Calif., said the court should issue "new guidelines" to limit the amount of attorneys' fees civil rights lawyers can collect when they win cases.
Jonathan Kotler told the justices that an award of $245,000 in lawyers' fees was unreasonable because it was seven times what a jury awarded eight residents who sued the city after police forcibly broke up their party with tear gas and clubs.
Judges, who are empowered by a 1976 law to award such fees, should often limit them to one-third of whatever damages the clients collected, he said.
But Gerald P. Lopez, one of the winning attorneys representing the eight residents, said the court should not "relitigate what Congress decided" -- that "as a matter of public policy" civil rights cases are too important to rely on the traditional American system under which each side pays its own lawyers. The court is expected to rule by July in Riverside v. Rivera.
In other action yesterday, the justices agreed to hear two cases next fall.
One case, California Coastal Commission v. Granite Rock Co., asks whether states may regulate private mining on federal forest land. The case, which could have a major impact on state regulations, particularly in the western states, involves a mining operation in California's Big Sur.
The second case, Michigan v. Shabaz, asks under what circumstances police may chase suspects who flee upon seeing officers.