Last edited: January 02, 2005

Texas Case Challenges 1986 Ruling That Upheld Georgia Sodomy Law

Atlanta Journal-Constitution, March 23, 2003
72 Marietta Street NW, Atlanta, GA 30303
Fax: 404-526-5746

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 privacy.

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 marriage law.

Arguments Wednesday

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.

Precedent ‘troubling’

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 decision.

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 heterosexuals.

“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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