Case Challenges 1986 Ruling That Upheld Georgia Sodomy Law
Journal-Constitution, March 23, 2003
72 Marietta Street NW, Atlanta, GA 30303
By Mark Helm, Hearst Newspapers
WASHINGTON—When Houston police
officers responded to a reported break-in at the apartment of John G.
Lawrence, they didn’t find an armed robber. They did discover a crime in the
state of Texas: Two men having sex.
Although the police later discovered that Lawrence’s
neighbor made the call as a prank, Lawrence and his partner, Tyron Garner,
were arrested and tried under the state’s 1973 “homosexual conduct” law.
The Texas statute imposes criminal sanctions on certain
types of sexual contact between gay men or lesbians, primarily anal and oral
sex, that are entirely legal for heterosexuals.
Both men were found guilty and fined $200 for what they
were doing the night of Sept. 17, 1998.
But Lawrence, then 55, and Garner, then 31, challenged
the Texas law, arguing that the distinction between homosexuals and
heterosexuals was unfair and violated their equal protection rights under the
Constitution. They also argued that the law constituted an invasion of
Texas officials disagreed, saying that society has the
right to declare certain behavior immoral and that courts have long recognized
legal differences between heterosexuals and homosexuals in areas such as
On Wednesday, the case will reach the U.S. Supreme Court,
which must decide whether laws banning sexual contact between homosexuals are
a violation of the Constitution’s 14th Amendment or are a permissible
regulation of public morality. The court’s decision is expected by June.
Three other states-Missouri, Oklahoma and Kansas-plus
Puerto Rico have laws similar to the Texas statute.
Another nine states-Alabama, Florida, Idaho, Louisiana,
Mississippi, North Carolina, South Carolina, Utah and Virginia-have sodomy
laws that apply to all adults, gay or straight.
Legal experts point out that the court has addressed this
issue in the past and ruled in favor of the homosexual conduct law.
In 1986, the court declared there was no fundamental
constitutional right to homosexual sodomy in a Georgia case known as Bowers
vs. Hardwick. That 5-4 decision rejected the notion that an essential right to
privacy shielded adult gays from government interference in their sex lives.
Jonathan Turley, an expert on privacy law at George
Washington University in Washington, says that for Lawrence and Garner to win
their case, the justices must overrule that earlier decision-something the
high court does not often do.
In this case, however, the odds may favor the court
overturning the Bowers vs. Hardwick ruling. Turley says a large number of both
conservative and liberal legal scholars consider the decision “deeply
troubling” because it allowed states to regulate personal relationships
between consenting adults.
“If you were to a take a poll of constitutional
scholars on their Top 10 worst decisions of the modern era, the vast majority
would have this case on their list,” he says.
Turley adds that Justice Lewis Powell, who sided with the
majority in the Bowers vs. Hardwick ruling, later said he regretted his
Gay advocacy groups argue that besides criminalizing
homosexual relationships, the Texas law also is used to justify other kinds of
discrimination against gays, such as denial of child custody and arbitrary
terminations from employment.
“These laws brand you as a sexual deviant,” says
Patricia Logue, senior counsel for the Lambda Legal Defense and Education
Fund, which has represented Lawrence and Garner.
For example, she says, because of their convictions,
Lawrence and Garner are disqualified in Texas from being employed in more than
a dozen professions, including nursing, and would be required to register as
sex offenders in Idaho, Louisiana, Mississippi and South Carolina if they ever
decide to live there.
‘Public morality’ issue
In 2000, a Texas appeals court ruled 2-1 in favor of
Lawrence and Garner, saying that their convictions “impermissibly”
discriminated on the basis of sexual orientation and violated the state
constitution’s guarantee of equal protection under the law.
A year later, the Texas Court of Appeals reconsidered the
case and ruled against Lawrence and Garner.
The court ruled 7-2 that the police did not violate the
men’s privacy rights because when the officers entered the apartment, they
were responding to a robbery call and not attempting to catch Lawrence and
Garner in a sexual act.
In addition, the court ruled that unlike with race or
gender, there were no real legal precedents forbidding discrimination on the
basis of sexual orientation.
The judges said Texas could discriminate against certain
groups-such as gays and lesbians-if the state could prove a “compelling
interest” for the law.
In this case, the court said, the statute “advances the
state interest of preserving public morality.”
The Court of Criminal Appeals-the state’s highest court
for criminal cases-declined to review the case, so Lawrence and Garner
appealed to the Supreme Court.
Logue says that although the case involves a homosexual
couple, the Supreme Court’s decision will have an impact on both gays and
“This is a tremendously important case for gay people
and for everyone who believes in basic freedoms,” she says. “The state
should not have the power to go into the bedrooms of consenting adults in the
middle of the night and arrest them.”
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