Justices Asked to Reconsider Bowers v. Hardwick
Fulton County Daily Report, November
By Tony Mauro
WASHINGTON—Today, as the rest of the nation
prepares for Thanksgiving, the U.S. Supreme Court will sit down to a plateful
of petitions, including two that would return the court to some of the
thorniest subjects it has faced in recent decades: gay rights and affirmative
At its private conference, the court will consider whether to grant review
in dozens of cases, including Lawrence v. Texas,
No. 02-102, the gay rights case, and Grutter v. Bollinger, No. 02-241,
the affirmative action dispute.
What the court decides may be announced Monday in its orders list. The
court also will meet in conference on Dec. 6.
In the Texas case, the Lambda Legal Defense and Education Fund tells the
court that "the time has come" for the justices to reconsider Bowers
v. Hardwick, 478 U.S. 186, the 1986 ruling that upheld Georgia’s
anti-sodomy law. The fund is representing John Lawrence and Tyron Garner, who
were arrested in Lawrence’s Houston apartment in 1998 by Harris County
sheriff’s deputies. The officers were responding to a report of a domestic
disturbance-later found to be a false report. Lawrence and Garner were found
having anal intercourse and were charged under the Texas "homosexual
conduct" law, which bars same-sex "deviate sexual intercourse."
A panel of the state’s intermediate criminal appellate court threw out
the petitioners’ convictions. But later the same court, sitting en banc,
reinstated the convictions, citing Bowers and holding that the Texas law
"advances a legitimate state interest, namely, preserving public
Ruth Harlow, legal director of Lambda, argued in her brief that "much
has changed since Bowers." Five states have repealed or invalidated
same-sex anti-sodomy laws, and seven have done the same with general sodomy
laws. Only 13 states now criminalize any kind of consensual sodomy between
Even though the laws are disappearing and are not frequently enforced, they
still stand as justifications for treating homosexuals differently in housing,
employment and adoption, among other areas, Harlow said. The brief notes that
if the convictions stand, Lawrence and Garner would be barred from practicing
"dozens of professions" in Texas and would be classed in several
states as sex offenders.
The trend away from the sodomy statutes, she said, "is indicative of a
strong national consensus reflecting profound judgments about the limits of
government’s powers in a civilized society." She also cites Romer v.
Evans, 517 U.S. 620, the 1996 Supreme Court ruling against a Colorado
ballot initiative that barred special civil rights protections for gay men and
"What has happened gradually is that the country, and the Supreme
Court, have grown in their knowledge and understanding of gay and lesbian
people," Harlow said. If the case is granted, she predicts, "it won’t
be a controversial case that will be debated a great deal, at least in terms
of what the right answer is. Most Americans cannot believe there is still a
law like this on the books."
But not everyone agrees the high court is ready to reverse itself on the
"I don’t think it is clear-headed behavior to take this to the
Supreme Court now," said Emory University School of Law professor David
J. Garrow. He thinks Justice Sandra Day O’Connor, who was in the majority in
Bowers, is unlikely to reverse herself.
Justice Anthony Kennedy, the other possible swing vote on the issue, who
was not on the court when Bowers was decided, also is unlikely to vote to
reverse Bowers, in Garrow’s view-even though Kennedy authored Romer. The
only dissenting justice in Bowers still on the court is John Paul Stevens.
Harlow agrees that O’Connor and Kennedy are "the central
justices" in the case. But she believes the court will be receptive to
her arguments because "the claims here are so stark, the constitutional
problem so obvious."
Defending the Texas statute, Assistant Harris County District Attorney
William Delmore III said in an interview that "enforcement of public
morality is always a permissible legislative goal."
He added that the law is constitutional, asserting that "The people
who framed the Constitution would have laughed out loud" at the
suggestion that government could not prohibit certain sexual conduct between
Nonetheless, Delmore acknowledged he would rather not be spending his time
defending the statute. "We are professional prosecutors here, and most of
our cases involve felony crimes," he said. "I am looking forward to
the day when we can return to prosecuting murderers and rapists, not dealing
with a Class C misdemeanor with a $200 fine."
[The rest of the article is unrelated.]
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