Last edited: February 14, 2005

Taking Credit for Lawrence vs. Texas Decision

Landmark Case by Lambda Legal Draws Fund-Raising Effort by HRC, Others

Washington Blade, July 18, 2003
1408 U Street, NW, 2nd Floor, Washington, DC 20009 Email:

By Lou Chibbaro Jr.

An unofficial e-mail fund-raising on behalf of Lambda Legal Defense & Education Fund, the group that played the lead role in the Supreme Court case that overturned state sodomy laws, compares Lambda Legal’s work to the skill and grace of a championship baseball team.

“This is the team that’s ready to take their home run at the Supreme Court and use it to win the whole game,” said Lambda board member and fund-raiser Jon Klapper.

“There is so much more work for Lambda Legal to do, and this is where you come in,” Klapper said in his e-mail. “Now that you know more about the recent Supreme Court victory and the organization that won it, I hope you’ll decide to invest in all of our futures by donating to Lambda Legal with the highest contribution you can make.”

Most gay activists and legal analysts familiar with the Supreme Court’s June 26 landmark decision, known as Lawrence vs. Texas, have credited Lambda Legal with putting together an extraordinarily skillful case that succeeded in persuading the court to declare sodomy laws an unconstitutional violation of liberty and privacy rights.

Yet some of the dozens of gay civil rights, civil liberties, religious, and legal and professional groups that signed on to more than a dozen amicus or “friend of the court” briefs supporting Lambda’s case have also begun to take credit for the decision.

In-house newsletters and Web sites for many of the groups have touted their own amicus briefs, urging supporters to keep their contributions flowing to help them continue the work they say is needed to advance gay rights or civil liberties in the “post Lawrence” environment.

The Human Rights Campaign, the nation’s largest gay political group, was among the first to seize upon the Lawrence case for fund-raising purposes. In a direct mail “urgent gram” dated June 27, the day after the high court handed down its decision, HRC executive director Elizabeth Birch urged prospective donors to “celebrate the Supreme Court victory” by making a contribution to HRC.

“Moments of historic change demand actions of personal resolve,” she wrote. “That’s what makes your choice to invest in HRC’s work right now so very important.”

HRC was among the groups that submitted a joint amicus brief with other gay rights groups.

“Every group that submitted an amicus brief deserves some credit,” said Chai Feldblum, a gay Georgetown University law professor and veteran gay civil rights advocate.

Feldblum wrote one of the Lawrence briefs on behalf of the National Lesbian & Gay Law Association and 17 other gay, women’s, and progressive legal groups.

“The bulk of the credit for putting it all together goes to Lambda,” Feldblum said. “But this is not a case in which anyone should feel bad about spreading the credit around.”

Kennedy cited 3 amicus briefs

A number of Supreme Court observers and press commentators have pointed out that Supreme Court Justice Anthony Kennedy, who wrote the majority opinion in the Lawrence case, took the unusual step of citing three specific amicus briefs in his justification for declaring sodomy laws unconstitutional.

The three briefs—submitted by the American Civil Liberties Union; the Cato Institute, a D.C.-based Libertarian think tank; and a coalition of history professors that specialize in gay studies—provided Kennedy with much of the historic and contextual justification needed to shape his ruling, according to Feldblum and others.

Among the history professors that helped write the “history” amicus brief was John D’Emilio, a gay historian and author who has chronicled much of the gay civil rights movement of the 20th century.

In his majority opinion, Justice Kennedy cites information presented in the history brief to refute the Supreme Court’s 1986 decision in Bowers vs. Hardwick, which upheld state sodomy laws. That decision, denounced by gay activists and civil liberties advocates, declared that homosexual conduct had been the subject of “state intervention throughout the history of western civilization.” The decision also stated that “condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”

The amicus brief submitted by the history professors refutes those assertions by presenting historical facts and evidence that specifically anti-gay laws, including sodomy laws, did not emerge until the late 19th and 20th centuries. Kennedy, in turn, picked up on this information in his own opinion, which took the unprecedented step of harshly rebuking the Bowers decision and officially overturning it.

In referring to the U.S. colonial period, the history professors stated in their brief that sodomy laws “applied equally to male-male, male-female, and human-animal sexual activity.”

“‘Sodomy’ was not the equivalent of ‘homosexual conduct,’” they said. “It was understood as a particular, discrete, act, not as an indication of a person’s sexuality or sexual orientation.”

Cato takes some credit

Roger Pilon, the Cato Institute’s vice president for legal affairs, said his group’s amicus brief most likely helped Kennedy justify overturning sodomy laws to himself and more conservative justices from a conservative perspective. President Ronald Reagan appointed Kennedy to the high court, with many legal observers viewing Kennedy as a traditional conservative.

The Cato Institute, a generally conservative think tank that advocates for less government intrusion into individual lives, argued in its brief that sodomy laws violate individual liberty, a fundamental right that the Constitution should protect, Pilon said. Pilon said Yale University law professor William Eskridge, who is well known for his conservative legal views, wrote the Cato Institute’s amicus brief, and that he and the Cato Institute should “rightfully” take some credit for the Lawrence decision.

James Essecks, director of litigation for the ACLU’s Lesbian & Gay Rights Project, said he and Harvard University law professor Lawrence Tribe wrote the ACLU’s amicus brief. Tribe took the lead in arguing on behalf of Michael Hardwick the gay man whose sodomy conviction under Georgia law was upheld in the Supreme Court decision of Bowers vs. Hardwick, which was overturned by Lawrence.

“We also addressed the history of sodomy laws,” Essecks said. “We pointed out that enforcement of these laws was almost always based on public sex, sex for money, sex with minors, or forced or coerced sex.” He said the ACLU brief argued that, contrary to the claims in the Bowers decision, the U.S. does not have a lengthy history of prosecuting acts of consenting sex between adults in private.

Lambda officials have said much of the credit in the Lawrence case should go to John Lawrence and Tyron Garner, the Houston Texas gay men who brought the case to the Supreme Court. The two had appealed their conviction for violating the Texas “homosexual conduct” law after deputy sheriff’s barged into Lawrence’s apartment and arrested the two for engaging in sodomy in the privacy of the home.

Veteran gay activist Ray Hill, a longtime advocate for the rights of ex-offenders, said he should be given some credit for prodding Lawrence and Garner, who had not been active in gay rights causes, to “stand up and fight” for their rights. Hill said he knew Lawrence and Garner before they became famous and played a role in urging them to make an issue of their case.

Others have said Garner’s disgruntled ex-boyfriend should be given credit, in a backhanded way, for triggering a chain of events that started the case. The ex-boyfriend told police that someone with a weapon had entered Lawrence’s apartment, prompting police to enter the apartment and observe Lawrence and Garner having sex. Had the former boyfriend, who was later convicted of making a false police report, not contacted police, the landmark Lawrence case might never have happened.

Lambda Legal officials have declined to discuss this aspect of the case, saying they have chosen not to intrude into Lawrence and Garner’s private affairs.

“This was a case that involved a large number of people and organizations,” said Feldblum, the Georgetown University law professor. “As far as I’m concerned, every single group and person putting out a fund-raising letter deserves to do it.”

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