Last edited: December 31, 2004

Opposition Grows to Sodomy Laws

Both sides prepare briefs in run-up to Supreme Court challenge of Texas law

Washington Blade, January 31, 2002
1408 U Street, NW, 2nd Floor, Washington, DC 20009

By Rhonda Smith

Numerous individuals and organizations representing civil rights, religious, legal, academic and public health interests have submitted amicus briefs urging the U.S. Supreme Court to overturn Texas’ sodomy law.

Those opposed to overturning the "homosexual conduct" law have until Feb. 18 to submit similar friend-of-the-court briefs, and one of the Lone Star State’s legal representatives on the case, said Wednesday that none have done so yet.

"We have several agencies and organizations lined up who have indicated they plan to submit briefs," said William J. Delmore III, an assistant district attorney in Harris County, Texas.

Delmore said that in addition to two religious organizations, the Pro-Family Law Center in Escondido, Calif., has expressed interest in submitting a brief opposing any effort to overturn the sodomy law. The center’s mission is "to oppose the ‘gay’ movement and its destructive agenda by providing essential pro-family information and resources for attorneys and activists," according to the group’s Web site.

Center officials declined to comment when contacted by the Blade.

Bill Murray, a spokesperson for the Family Research Council, said that organization also plans to file a brief opposing attempts to overturn the sodomy law. When the U.S. Supreme Court announced in early December that it would hear the case challenging the constitutionality of the Texas law, which prohibits same-sex sodomy only, the Family Research Council’s president spoke out against the move.

"The court’s willingness to take on a case involving the Texas law just 16 years after it ruled in a nearly identical case suggests that some justices view their role essentially as political, manipulating the Constitution to conform to the latest social fashions and fads," said Ken Connor, the FRC president.

In 1986, the high court ruled, in the case of Bowers vs. Hardwick, that Georgia’s law banning consensual sodomy did not violate privacy rights. The Georgia Supreme Court struck down the law on similar grounds in 1999.

The Lambda Legal Defense & Education Fund, which is representing the two gay men in Houston who were convicted under the Texas sodomy statute, filed its brief Jan. 16 urging the high court to overturn the law and the Bowers vs. Hardwick precedent.

Consensual sex illegal

The Supreme Court has set oral arguments in the case, John Geddes Lawrence and Tyron Garner v. State of Texas, for March 26, and is expected to hand down a decision in the summer.

The case against the two gay men began in a Houston bedroom in 1998 when sheriff’s deputies, responding to a false report of an armed intruder, entered Lawrence’s apartment and found him and Garner engaging in anal sex.

Both men were arrested for violating the sodomy law and jailed overnight. They pleaded no contest to the Class C misdemeanor and each paid a $200 fine, plus court costs.

The Texas law under which the two men were charged, Section 21.06, bans intimate relations, including oral and anal sex, between consenting adults of the same gender. Texas earlier had a sodomy law that applied to everyone, but decriminalized such activities between different-sex partners in 1973.

Lawyers for the two men argue that the Texas sodomy law violates the guarantee of equal protection and the fundamental right to privacy safeguarded by the U.S. Constitution.

"As the experience of Lawrence and Garner vividly illustrates, Section 21.06 puts the State of Texas inside its citizens’ homes, policing the details of their most intimate and private physical behavior and dictating with whom they may share a profound part of adulthood," Lambda Legal lawyers wrote in the brief they submitted Jan. 16.

Lawyers for the gay men also argue that the Texas sodomy law takes away from same-sex couple the freedom to make their own decisions, based on their own values and relationships, about the forms of private, consensual sexual intimacy they will engage in or refrain from.

"The state defends this law only by saying the majority wants it so," the legal brief states. "Texas asserts a power of the majority to free itself from state dictates about private, consensual sexual choices, while using the criminal law to condemn and limit the choices of a minority."

The lawyers for Garner and Lawrence also argue that the Texas sodomy law violates the guarantee of equal protection because the statute "creates classes of persons, treating the same acts of consensual sexual behavior differently depending on who the participants are."

As a result, they said, "the law’s discriminatory focus sends the message that gay people are second-class citizens and lawbreakers, leading to ripples of discrimination throughout society."

Privacy argument favored

Ruth Harlow, legal director for Lambda Legal, said the equal protection and right-to-privacy arguments are both important. She acknowledged, however, that if the court favors the equal protection argument it might only lead to sodomy laws being abolished in the four states that limit their ban to sexual acts between gay couples. In addition to Texas, Kansas, Missouri and Oklahoma have consensual sodomy laws that apply only to gay people.

"We can win on either one of the claims, but the right-to-privacy claim would have an impact on all the states that still have consensual sodomy laws in place," she said. "So that claim is a very important one."

Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah, as well as Puerto Rico, have consensual sodomy laws that apply to heterosexual and homosexual adults. But Lambda Legal officials said the laws are invoked almost exclusively against lesbians and gay men and carry penalties that range from fines to 10 years in prison.

"The equal protection claim would have a direct impact on fewer states, but that’s a very key area of the law for lesbian and gay equality in the long term," Harlow said. "So that would also be quite a powerful victory."

She noted that lawyers representing gay clients use the equal protection clause any time the government singles out gay people for certain discriminatory treatment, such as denying them employment or refusing custody or visitation rights for gay parents.

"A ruling by the Supreme Court that further emphasizes the government cannot just single out lesbians and gay men because of moral opposition to homosexuality would be helpful to use in all kinds of different contexts," Harlow said.

A group of professors nationwide who teach and write about constitutional law submitted an amicus brief that also argues that the Texas sodomy law violates the equal protection clause of the Fourteen Amendment. They contend that the statute fails conventional equal protection analysis because it is not rationally related to the achievement of a legitimate state interest.

"Texas has identified no rationale for why it has condemned the acts prohibited by [the sodomy statute] beyond its lawyers’ declaration that the law reflects a choice about the morality of those acts," they wrote. "Given the way [the sodomy law] actually operates, it does not serve as a means of preventing these acts. It can be explained only as a means of singling out gay people for burdens not imposed on other individuals. The law can and is used as an excuse to persecute gay people, even if it is seldom directly enforced."

Ban all sodomy laws?

William B. Rubenstein, a law professor at the University of California at Los Angeles, helped write the legal brief submitted by the Lambda Legal attorneys. He said the Supreme Court justices could adopt their equal protection argument and, depending on how they wrote their legal opinion, it might not address the action of states whose sodomy laws apply to homosexual and heterosexual adults.

"However, it’s fair to say that the laws, nonetheless, have a special impact on gay people," he said. "So the court could essentially use the same argument we use as a way to strike down all sodomy laws, saying they generally have this unequal impact on gay people that renders them unconstitutional."

Delmore, one of the assistant district attorneys in Harris County, where Houston is located, said that in the Supreme Court brief that Texas officials plan to submit in February, they essentially will expound on the argument they used in the case at lower court levels.

Lawyers for the State of Texas have said there is no need for the courts to intervene in a debate that is ongoing in various state legislatures. They also have said the Supreme Court’s decision in Bowers vs. Hardwick should remain intact.

"In light of the fact that homosexual anal sodomy was viewed as criminal behavior under state law and the common law for a period of centuries, that conduct could not conceivably have achieved the status of a ‘fundamental right’ in the brief period of 16 years since Bowers was decided," they said in a brief to the Texas Court of Appeals.

Lawyers for Texas also argued in the previous filing that though morality is a fluid concept and public opinion about moral issues might change over time, "what has not changed is the understanding that government may require adherence to certain widely-accepted moral standards and sanction deviation from those standards, so long as it does not interfere with constitutionally protected liberties."

Laws ‘fuel anti-gay bias’

The Human Rights Campaign, the nation’s largest gay political organization, submitted a brief opposing the Texas sodomy law, along with various other civil rights groups, including the National Gay & Lesbian Task Force, the National Center for Lesbian Rights in San Francisco, the Mexican-American Legal Defense and Education Fund, and all the gay civil rights organizations in states that have sodomy laws intact.

Liz Seaton, senior counsel for HRC, said they argue in part that sodomy laws brand lesbian and gay people as criminals and that stigma fuels anti-gay bias, discrimination and violence against that population.

Roger Pilon, vice president for legal affairs and director of the Cato Institute’s Center for Constitutional Studies, said that organization’s brief questions whether the government has any business intruding into the sexual lives of people and into the privacy of their homes.

The Cato Institute is anonpartisan, libertarian think tank in Washington, D.C., that often takes conservative positions.

"It was a matter of coming to the defense of individual liberty and limited constitutional government," he said.

Dana Berliner, senior attorney for the Institute for Justice, a libertarian organization in Washington, D.C., echoed Pilon.

"The state has no more power to criminalize consenting adult sexual conduct than it does to regulate what I make for dinner or what time I go to bed," she said. "It’s hard to imagine a more stark example of invasive government power than the power to go into bedrooms and tell consenting adults which exact activities they may or may not engage in."

The Institute for Justice also submitted an amicus brief in Dale vs. Boys Scouts of America. In that case, Berliner said her organization argued that the Boy Scouts should be able to exclude gay people as members.

"Although it might seem that these positions in these cases are conflicting, we think our position is the same, namely that it’s just not government’s business to say the Boy Scouts have to let gay people in, even if that’s the right thing to do," she said. "And it’s not the government’s place to say things about morality."

Sodomy Law Supporter Is Outside Mainstream

Washington Blade, February 14, 2003

To the Editor:

Thanks for the article on the Lawrence case before the U.S. Supreme Court ("Opposition grows to sodomy laws," news, Jan. 31).

I noticed that you referenced the Pro-Family Law Center in Escondido, Calif., as contemplating filing a brief in this matter. I wish someone would expose the questionable nature of this organization.

The main person behind the Pro-Family Law Center is Scott Lively, who holds a law degree from a non-ABA accredited law school (Trinity Law School) that has only six faculty members, fewer than 100 students, and is affiliated with a far-right Bible college.

Mr. Lively is uncontrolled in his hatred toward gays and has written a book—the "Pink Triangle"—that maintains that homosexuals were responsible for the rise of Nazism and the guiding force behind Nazi atrocities, including the Holocaust.

In "The Poisoned Stream: ‘Gay’ Influence in Human History, Volume One, Germany 1890—1945", Mr. Lively purports to delve into the history of homosexuality in Germany and claims to reveal its "poisonous influence" not just in World War II, but also World War I through the "intrigues of the Homosexual International."

Information on these books can be found on the "Abiding Truth Ministries" Web site maintained by Mr. Lively. Serious, legitimate historians have dismissed Mr. Lively’s theories.

Lively and his organization need to be exposed for the religious fanatics they are and for their questionable credentials. His opinions are based on one thing only: his extreme, intolerant, non-mainstream religious views.

Norfolk, Va.


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