Last edited: February 14, 2005

Supreme Court Hears Key Gay Rights Case Today Newscenter, March 26, 2003

By Paul Johnson, Washington Bureau Chief

Washington, D.C.—In the most important gay rights case in a generation the Supreme court today will be asked to strike down the Texas sodomy law.

The law bans oral and anal sex between consenting adults of the same sex. It does not apply to heterosexual couples.

Three other states—Missouri, Oklahoma and Kansas—plus Puerto Rico have laws similar to the Texas statute, targeting only gays.

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.

The case before the Supreme Court today involves two Houston men, John Lawrence and Tyron Garner. The men pleaded no contest to breaking the sodomy law in 1998, after police broke into Lawrence’s home in search of an armed intruder and discovered the two men engaged in intercourse.

Both men were arrested and then imprisoned overnight. They were fined $200 each and had to pay court costs.

The convictions bar both men from holding several types of jobs in Texas. If they move to other states, they could be required to register as sex offenders.

The men are represented before the court by Lambda Legal.

Lambda attorneys argue that their clients’ constitutional rights were trampled, by violating the men’s liberty and privacy interests protected by the due process clause of the 14th Amendment.

They’re also asking the Court to find that the law violates the 14th Amendment’s guarantee of equal protection of the laws by discriminating against gay couples without any legitimate or rational basis.

“Laws that criminalize oral and anal sex by consenting gay couples are an affront to equality, invade the most private sphere of adult life, and harm gay people in many ways,” said Ruth Harlow, Legal Director, Lambda Legal.

But a lawyer representing Harris County where the men were charged will argue that Texas citizens, acting through their Legislature, have a right to ban conduct that they deem immoral.

The case allows the court to revisit two earlier decisions that have had a profound effect of American gays.

The first is Bowers v. Hardwick where the Supreme Court 17 years ago ruled 5—4 that a Georgia statute criminalizing consensual sodomy was constitutional.

The second is the 1996 decision in Romer vs. Evans. In a 6-3 decision the court struck down a Colorado amendment that banned local laws specifically protecting gays from discrimination.

Two present members of the Bowers majority are still on the Supreme Court: Chief Justice William Rehnquist and Justice Sandra Day O’Connor.

Only one of the dissenters remains: Justice John Paul Stevens, the Supreme Court’s aging liberal lion and the most senior member of the court.

But, all of the nine justices who participated in Romer are still on the court. What’s more, O’Connor was once again in the majority, this time voting with the four court liberals and fellow swing vote Justice Anthony Kennedy.

A large number of civil rights groups have filed “friend of the court”, or amicus, briefs supporting Lambda.

The Human Rights campaign said the sodomy law is outdated. “Gays and lesbians are law-abiding, productive citizens who are healthy partners, good parents, patriotic veterans and sometimes heroic citizens,” it noted.

“We hope that the Supreme Court will have the wisdom to see these laws for what they are—mechanisms used to justify discrimination against gay and lesbian Americans,” said HRC Executive Director Elizabeth Birch.

“These laws have been used to deny gay men and lesbians jobs, refuse gay and lesbian parents custody of their own children, and for blocking non-discrimination laws and hate crime legislation.”

Vivian Berger, professor emerita at Columbia University Law School, said it as a good sign that the Supreme Court asked for briefs on whether Bowers should be overruled. 

“Bowers has been an embarrassment,” says Berger, who has served as a general counsel and board member for the American Civil Liberties Union, which represents gays and lesbians in challenges to sodomy statutes.

If the court strikes down the Texas law, sodomy laws in the other 12 states would be negated.

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