Last edited: December 05, 2004

Sodomy Law to Go to High Court Today

Gays Hoping Reversal Would Allow for More Rights Protection

Dallas Morning News, March 26, 2003
Box 655237, Dallas, TX 75265
Fax: 972-263-0456

By Allen Pusey, The Dallas Morning News

WASHINGTON—In September 1998, police barged into a Houston apartment investigating the report of a weapons disturbance; instead of a crazed gunman, they uncovered a constitutional controversy.

Inside the apartment, two men were engaging in consensual sex. Instead of ignoring the embarrassing false alarm, police arrested the two men for violation of Section 21.06 of the Texas penal code, the rarely enforced Texas Homosexual Conduct Law.

On Wednesday, lawyers for John Geddes Lawrence and Tyron Garner will ask the U.S. Supreme Court to strike down the Texas statute as discriminatory. Such a decision would have far-reaching implications for gays and lesbians, who argue that laws targeting their intimate behavior—whether enforced or not—place unfair obstacles to public employment and services.

Texas is one of 13 states that criminalizes sodomy, and one of four in which the laws apply only to same-sex intercourse. Lawyers for Mr. Lawrence and Mr. Garner believe that the nation’s highest court may be open to their challenge.

“We honestly believe that all nine of the justices now sitting are potentially capable of agreeing with us,” said Ruth E. Harlow, counsel of record in the case and legal director of Lambda Legal Defense and Education Fund.

Mark Tushnet, a constitutional scholar at Georgetown University Law School, said that “it’s about as certain as anything can be” that the Supreme Court will reverse the Texas law. “The effect’s going to be to invalidate all [state] statutes that make consensual sodomy a crime,” he said.

Under Texas’ law, sodomy is defined as anal or oral sex. The law once made such sexual practices illegal even for married heterosexual couples but was changed in 1973. Rights activists say those changes, meant to liberalize laws on sexual conduct, now specifically discriminate against gays and violate the equal protection provisions of the Constitution.

With their intimate behavior classified as criminal, they argue, gays are often unable to qualify openly for employment involving clearances, or for legal benefits—such as child custody and adoption—that hinge on background checks.

Supporters of the law

In their brief in support of the Texas law, Harris County prosecutors argue that no previous Supreme Court rulings recognize a right to sexual conduct “outside the venerable institution of marriage.” As long as the legislation doesn’t curb any fundamental rights, they argue, the Texas Legislature has every right to enact laws to promote public morality and “family values.”

“We think it’s perfectly rational for the Legislature to distinguish sex between two persons of the same sex and other forms of sexual conduct,” said William J. Delmore III, Harris County assistant district attorney. “As long as it’s rational, it’s not discrimination.”

Even so, he thinks it will be a close call. “I think our chances are a little better than 50-50,” Mr. Delmore said.

The court’s last such serious test of sodomy laws was in 1986. In Bowers vs. Hardwick, a 5-4 majority affirmed a Georgia criminal law that banned consensual sex between same-sex adults. In a bluntly worded majority opinion, Justice Byron White rejected the notion that any private sexual conduct, even within the home, is constitutionally protected.

Justice White said those challenging the Georgia sodomy “would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.”

Of the five justices who made up the majority in the Bowers case, only Chief Justice William Rehnquist and Justice Sandra Day O’Connor remain on the court. And in 17 years, much has changed in the public understanding and acceptance of homosexuality, Ms. Harlow said.

As late as 1961, all 50 states outlawed sodomy or homosexual sex. By the time of the Georgia decision, about half still had such laws. That the overwhelming majority of states have chosen to repeal them suggests a serious change in public perception, Ms. Harlow said.

“We think there is a far deeper understanding of homosexuals and homosexuality than 17 years ago,” she said. “I also think that most people understand that the privacy of sexual intimacy inside a person’s own home ought to apply to everybody.”

Both sides

More than 100 organizations, including the AFL-CIO, the Anti-Defamation League, the American Public Health Association and the Cato Institute, a libertarian think tank, have filed briefs in support of Mr. Lawrence and Mr. Garner. Alabama, South Carolina and Utah have filed briefs on behalf of Texas, along with Jerry Falwell’s Liberty Counsel and the American Family Association, a Christian lobbying group.

Harvard constitutional lawyer Laurence H. Tribe, who argued unsuccessfully before the Supreme Court in the Georgia case, is among them. In a “friend of the court” brief filed for the American Civil Liberties Union, Mr. Tribe argues that the Bowers decision was “an anomaly.” The court’s views on sexual privacy have evolved and should continue that evolution, he said.

In the last 40 years, he said, the court has struck down a number of state laws that tried to regulate sex, and even child-bearing, among married and unmarried couples. In 1992, the court acknowledged a constitutional protection for “the liberty relating to intimate relationships, the family, the decisions whether or not to beget or bear a child.”

Mr. Tribe said that sodomy laws have existed for centuries but have seldom resulted in the prosecution of consenting adults. Neither Mr. Tribe nor Mr. Delmore, the Harris county prosecutor, was aware of any similar Texas case.

For Mr. Lawrence and Mr. Garner, there’s little at stake beyond principle. Neither stood trial on the charges in Houston. Each pleaded no contest to a Class C misdemeanor and was ordered to pay a $200 fine. Both said at the time of their hearings that they were determined to challenge the Texas law.

The original caller was later arrested and jailed for filing a false police report. He told police that he made the call because he was “angry” at the two men.

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