Last edited: May 02, 2004

Changing History

The Supreme Court’s decision in Lawrence v. Texas took many people by surprise—but those who had been fighting antigay sodomy laws nationwide knew the landmark ruling was years in the making

The Advocate, January 20, 2004

By Chad Graham

The landmark U.S. Supreme Court ruling in Lawrence v. Texas sent shock waves around the country and will undoubtedly stand as one of the most important civil rights victories in history. But the case almost never happened.

John Lawrence and Tyron Garner—who were arrested in September 1998 after officers found them having sex in Lawrence’s Houston apartment—didn’t originally plan to take legal action, says Mitchell Katine, the openly gay Houston lawyer who first represented the men.

“John and Tyron were handcuffed and taken down a flight of stairs and put into the police car in a way that they felt was very rough and got them very angry,” he says. “Had they not been handled that way, they tell me, they would have never called a lawyer.”

Police entered Lawrence’s apartment on a false report to the police of an armed intruder. “These are not guys who’ve been in politics,” Katine says. “They didn’t know what was going on. This could have been a little $200 ticket.”

The men spent more than a day in jail, paid their fine, then had a friend call Katine to see if he’d represent them. “In my 17 years practicing law, representing gay and lesbian people, I had never heard of anybody who’d been arrested and charged with this crime,” he says. Texas’s sodomy law—passed in 1860—was amended in 1974 to remove heterosexual anal and oral sex, making Texas one of four states with sodomy laws applying only to gay people.

Lawrence became a five-year legal battle, ending up as one of the 2% to 3% of cases appealed to the U.S. Supreme Court that are heard by the justices. Even more rare, the decision reversed a previous Supreme Court ruling—1986’s Bowers v. Hardwick. Legal experts say Lawrence—a truly watershed victory—was won through stealthy legal maneuvers, changing social views, and a little luck.

Back to 1998. Katine immediately called lawyers at the Lambda Legal Defense and Education Fund in New York City, who began to plan strategy for the case. Legal challenges to other states’ sodomy laws during the 1990s had methodically set the stage for a showdown in the Supreme Court. The lawyers soon realized Lawrence could be the case they were waiting for.

“The case could not have come at a better time: when we were already in the midst of a strategic challenge to sodomy laws nationwide,” says Suzanne Goldberg, an out lesbian who was a lead Lambda attorney on Lawrence before leaving for Rutgers University’s law school in 2000, where she is now an associate professor. “The case offered a perfect example of how the sodomy laws empowered the states to invade the privacy of a person’s home to prosecute for consensual sex.”

Lambda’s lawyers deemed Lawrence a “clean case,” meaning the two men had not engaged in other illegal activity. They were consensual adults and were not having sex in a public place. There were no drug or alcohol charges. Neither of the men resisted arrest. They had simply violated the Texas sodomy law.

Something else caught the lawyers’ attention. The Texas district attorney who prosecuted the case could have dropped the charges against Lawrence and Garner, making it impossible for Lambda’s lawyers to challenge the sodomy law, but he didn’t. In addition, the Texas state’s attorney’s office didn’t intervene, indicating their side of the case might be constitutionally weak.

Lambda immediately had to decide if they wanted to directly challenge the Supreme Court’s ruling in the 1986 Bowers case—a ruling that infuriated gay rights supporters. “In the Hardwick case, the court ruled 5 to 4 that gay people could be shut out of the right to privacy, because the court said there is no connection between gays on the one hand and family, parenting, and marriage on the other,” says Evan Wolfson, the openly gay director of Freedom to Marry, a New York City–based group working for full gay marriage rights.

But nearly 17 years later, gay people had made significant civil rights strides in legal cases and in the court of public opinion. “Our movement and the marriage debate had shown the country and, as it turned out, the court that gay people have every connection with family, parenting, and yes, marriage,” Wolfson says. “The main thing that happened in the 17 years was claiming the vocabulary of love, family, commitment, and equality. That created the space for the court to admit it was wrong in 1986.”

Lambda decided the best course of action was to frame arguments that directly challenged Bowers as the Lawrence case progressed through the Texas courts. The issues they raised—namely, that privacy, under the Constitution’s 14th Amendment, is a right for gay and straight people alike—could force the Supreme Court to revisit Bowers. Many legal experts told Lambda that if the Supreme Court decided to take the case, “their decision would be to reverse Bowers,” says Pat Logue, interim legal director of Lambda.

In March 2001, a Houston appellate court upheld the “homosexual conduct” law. Lambda then appealed to the highest court in the state, the Texas Court of Criminal Appeals, which refused to hear the case, so it asked the opinion of the U.S. Supreme Court. At that point, many people started working on the case full-time, Logue says. “It is an incredibly arduous process to have the responsibility of a case like this and do it well.”

Nearly 130 groups—from the Human Rights Campaign to the Alliance of Baptists—filed friend of the court briefs. On March 26, 2003, each side had 30 minutes to present their case to the nine justices. In the decorum-heavy chambers of velvet curtains, lawyers on both sides were peppered with question after question by the justices. Lambda’s argument was handled by Paul M. Smith, an openly gay lawyer of the elite Washington, D.C., firm Jenner & Block; he had extensive civil liberties case experience, had clerked on the U.S. Supreme Court, and had argued before it nine times. John Lawrence was also sitting in a prominent location in the court throughout the proceedings. (Garner was unable to attend.)

“We wanted the court to understand the devastating impact of these laws—that was the hearts and minds of the case,” Logue says. “We also wanted to give them an incredibly deep presentation [showing] why the law should have always been in our favor.”

Three months later, the court delivered its opinion, striking down the Bowers case and invalidating sodomy laws across the country. “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” wrote Justice Anthony Kennedy in the majority opinion. “The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

When the court’s ruling came down, Logue wept as the entire Lambda office in New York City exploded in excitement. Katine was sitting at his desk in Houston surrounded by news cameras that were rolling to tape his reaction: “I first heard of the decision from my mother calling me from Ft. Lauderdale, Fla., saying ‘You won, son, you won.’ “

In the months since the victory, supporters of gay marriage have started knocking down other legal barriers, especially in Massachusetts, where the state’s highest court ruled in November that it is unconstitutional to bar gay couples from marriage.

“I hate to say it, but Justice Scalia said it best in the court’s dissenting opinion: Lawrence leaves the restriction of marriage to opposite-sex couples on very shaky grounds,” Wolfson says.

  • Graham is a features writer at the Des Moines Register.

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