Last edited: February 14, 2005

Justices Asked to Reconsider Bowers v. Hardwick

Fulton County Daily Report, November 27, 2002

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 action.

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 morals."

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 Five states have repealed or invalidated same-sex anti-sodomy laws, and seven have done the same with general sodomy laws.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 adults.

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 women.

"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 sodomy issue.

"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 adults.

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.]

[Home] [News] [Lawrence v. Texas]