Court to Rule on ‘Most Important Gay Rights Case’
Texas law forbids sodomy only by same-sex couples
Francisco Chronicle, March 26, 2003
901 Mission St., San Francisco, CA 94103
By Carolyn Lochhead, Chronicle Washington Bureau
Washington—The Supreme Court will
hear arguments today in a case that some contend could, for the first time,
guarantee equal protection for gays and lesbians much as the landmark Brown
vs. Board of Education case did for African Americans nearly a half-century
At issue is a Texas law that permits oral or anal sex
with animals and between members of the opposite sex, but prohibits it between
The case, Lawrence and Garner vs. Texas, asks the
high court to rule that gays and lesbians cannot be treated differently from
other groups under the law.
“There are stark constitutional claims here,” said
Michael Adams, an attorney with Lambda Legal Defense and Education Fund, a gay
advocacy group arguing the case. “Victory is very important to gays and
Ruth Harlow, the Lambda attorney arguing the case, called
Lawrence and Garner “the most important gay rights case in a generation.”
Despite its importance to gays, the case has drawn little
attention from the mainstream press, where it has been overshadowed by a key
affirmative action test involving the University of Michigan, which is
proceeding on the same Supreme Court schedule with oral arguments scheduled
The case has split the right, drawing a flurry of
supporting legal briefs from libertarian groups arguing on behalf of equal
protection for gays, and opposing arguments from social conservatives, who
contend a ruling against Texas could open the door to gay marriage.
“If equality means something in the Constitution, what
it means is that identical behavior by people should be treated similarly, and
gays shouldn’t be singled out for punishment for behavior that Texas finds
perfectly fine for straights,” said Eric Jaffe, a former clerk for Justice
Clarence Thomas and co-author of the amicus brief filed by the Republican
Unity Coalition, a conservative group that aims to bring gays into the GOP.
“For the gay community it would be the functional
equivalent of Brown that says you can’t simply wholesale discriminate
against groups in the manner that Texas does, where you have one set of rules
for straight people and a different set of rules gay people,” Jaffe said. He
compared the Texas law with a hypothetical law that would, for example, bar
Chinese Americans from driving.
The conservative Family Research Council agrees the case
is critical and is urging the court to uphold the Texas law.
“If the court rules against Texas, they will have
started down a path to redefine marriage out of existence,” said Ken Connor,
president of the council.
“If the court now finds laws that proscribe sodomy to
be unconstitutional, then another barrier to the legalization of so-called
same-sex marriage will have fallen.”
Lambda is urging the court to decide the case on equal
protection grounds and find a right to privacy—in effect overturning its
1986 Bowers vs. Hardwick decision that upheld a Georgia sodomy law.
Gay groups contend the Hardwick case, decided when 25
states still ha d anti- sodomy laws, has been used repeatedly to discriminate
against gays and lesbians in adoption, custody and employment cases.
Sodomy laws were once the rule, existing in all 50 states
in 1961. The laws have been rolled back in all but 13 states, and only
four—Texas, Oklahoma, Kansas and Missouri—apply sodomy laws only to
Many observers caution that the court may limit its
ruling to the specific case at issue and will probably avoid extending its
ruling to other gay rights issues, such as the Defense of Marriage Act enacted
in 1996, which bars federal benefits such as immigration rights from same-sex
Observers speculate the high court may have accepted the
Lawrence and Garner case because of what Jaffe called its very troubling set
“What Texas has done is a little too blatant for people
to stomach,” Jaffe said. “They are saying sodomy is fine if you are
engaging in sexual conduct with someone of the opposite sex or an animal, but
not fine if it’s a human of the same sex. At some point, you just look at
the thing and find it hard to explain in terms other than discrimination or
The case stems from an incident on Sept. 17, 1998, when
sheriff’s officers responded to a false report of a “weapons
disturbance” by a neighbor of John Lawrence at his home in Harris County,
Texas. The officers discovered Lawrence and Tyron Garner having sex and
arrested both, jailing them for the night and charging them with violating the
Texas “Homosexual Conduct” statute.
That law criminalizes “deviate sexual intercourse”
with another person of the same sex.
Years ago, Texas had outlawed other forms of consensual
sex, including bestiality, adultery, fornication and oral sex. The state
repealed that law, but it passed a substitute in 1973 that singled out sodomy
among same-sex couples as illegal.
Lawrence and Garner appealed their conviction on
constitutional privacy and equal protection grounds, and a panel of the Texas
Court of Appeals reversed their convictions. But the full Appeals Court
reinstated the convictions, rejecting all the petitioners’ arguments,
including their constitutional challenges.
In doing so, that court cited the Bowers vs. Hardwick
decision. It found that the statute did not violate equal protection because
it applied to homosexual “conduct” rather than “orientation,” and
further held that the statute “advances a legitimate state interest, namely,
preserving public morals.”
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