Last edited: February 14, 2005

Supreme Court Urged to Strike Down Same-Sex Sodomy Law

Dow Jones Newswire, March 26, 2003

By Mark H. Anderson of Dow Jones Newswires

WASHINGTON—Activists pressed a divided U.S. Supreme Court on Wednesday to strike down a Texas sodomy law that applies only to homosexuals, arguing the high court should grant gays constitutional protection from state interference in private sexual activities.

Washington attorney Paul Smith, representing two men convicted under the Texas same-sex sodomy law, said the Texas statute was unconstitutional. He urged the justices to overturn a 1986 decision that denied homosexuals a right to privacy for consensual sex.

Smith said the Texas law was “fundamentally illogical” and that it used morality judgments as a basis for discrimination.

“I think this is a multiple unconstitutional statute,” Smith said.

The questions presented by the case touched a nerve at the high court. The sharp split between conservative and liberal justices on this issue was apparent during the questioning.

Chief Justice William Rehnquist, speaking for the conservative wing of the court, said “this kind of conduct has been banned for a long time” and questioned whether the United States was ready to recognize same-sex activity as a right.

Justice Antonin Scalia, another conservative, presented numerous arguments for why he thought the court shouldn’t strike down the law. Justice Clarence Thomas was characteristically silent.

Equally defiant, Justice Stephen Breyer pressed Charles Rosenthal, the district attorney for Harris County in the Houston area, for a “justification for this statute” and challenged the state for reaching “inside the bedroom door” with the law.

Joining him in this line of questioning were Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter, who pressed for justifications of the law. Possible swing votes in the case, Justices Anthony Kennedy and Sandra Day O’Connor, were relatively quiet.

Rosenthal said Texas had the right to bar same-sex homosexual activity because the Supreme Court has never shielded gays from such a law.

“The court has never recognized a right to engage in extramarital activity,” Rosenthal said.

He added that striking down the same-sex sodomy law could lead to challenges against the state’s marriage statutes.

Indeed, the case of Lawrence vs. Texas, 02-102, is a revisiting of the court’s 1986 Bowers v. Hardwick decision, which 5-4 rejected a right to privacy for consensual sex between gay men and lesbians.

The Bowers decision has spurred activism in the homosexual community and from those opposed to granting equal rights to gays. And that decision, even though it dealt with a Georgia sodomy law that applied to both heterosexual and homosexual activity, was much on the minds of justices as they deliberated Wednesday.

The Texas case began in 1998 when Pasadena, Texas, sheriff’s officers, responding to a call about a weapons disturbance, entered the home of John Lawrence and found him engaged in sex with Tyron Garner.

The two were charged with violation of a Texas statute that outlaws sexual conduct between two people of the same sex. Lawrence and Garner were found guilty, but they fought the charges, saying the law violated equal protection rights under the Fourteenth Amendment to the U.S. Constitution as well as constitutional rights to privacy and due process.

A Texas appeals panel reversed the convictions in 2000, saying the sodomy law violated a Texas equal rights provision. That decision was reversed on appeal, however, by another appeals court panel, and efforts to get that ruling overturned at the state level were unsuccessful.

Sodomy laws generally bar anal and oral sex. Only four states have laws that apply only to homosexual sex. Nine additional states, mostly in the southeastern U.S., bar all oral and anal sex. None of the states try to actively enforce sodomy statutes.

During the oral arguments, justices indicated they were looking at the history of sodomy laws—both those written for same-sex acts and acts between males and females—and the country’s acceptance of gay rights as they decide how to rule in the case.

Some of the justices also pressed for some justification of the law beyond placing a moral constraint on society.

“What kind of harm to others can you point to in this case?” asked Justice David Souter.

A decision is expected by the end of June.

By Mark H. Anderson, Dow Jones Newswires; 202-862-9230;

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