Last edited: November 28, 2004

Supreme Court Strikes Down Texas Sodomy Law

Fort Worth Star-Telegram, June 26, 2003
400 West 7th, Fort Worth, TX 76102

By Dave Montgomery, Star-Telegram Washington Bureau

WASHINGTON—The U.S. Supreme Court, in a 6-3 decision, struck down the nation’s remaining sodomy laws on the books in 13 states, including Texas, ruling on a Houston case that homosexual couples have the right to engage in consensual sex in the privacy of their homes.

The far-reaching decision overturned its own 1986 ruling upholding a now-repealed Georgia statute banning sodomy. In dissent, Justice Antonin Scalia said the majority opinion “effectively decrees the end to all morals legislation.”

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda,” Scalia wrote, saying that the ruling could pave the way for same-sex marriages and undercut laws banning bigamy, incest, prostitution and other acts.

Upholding an appeal by two men from Houston, John Lawrence and Tyron Garner, the court specifically struck down the 1973 Texas Homosexual Conduct law which prohibits sodomy, defined as anal or oral sex, among homosexuals but does not outlaw the same behavior for heterosexual couples.

But in ruling that gay couples have a right to privacy, the court also struck down similar homosexual sodomy laws in Kansas, Oklahoma and Missouri, as well as statutes in nine other states that outlaw sodomy for both heterosexuals and homosexuals.

“The petitioners are entitled to respect for their private lives,” Justice Anthony Kennedy wrote in the majority opinion. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

The ruling dismantled the Supreme Court’s 17-year-old Bowers vs. Hardwick ruling used as the legal precedent for the remaining state sodomy laws. The decision, which concluded that “homosexual sodomy is immoral and unacceptable,” upheld a Georgia law which was later repealed by the state’s Legislature.

“Bowers was not correct when it was decided, and it is not correct today,” Kennedy wrote. “It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Siding with the majority were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and Sandra Day O’Connor. Chief Justice William Rehnquist and Clarence Thomas joined Scalia in dissenting. O’Connor, in a concurring opinion, explained that she did not agree with overturnning the Bowers decision. But she shared the majority’s view that the Texas statute should be overturned because it effectively transforms homosexuals into second-class citizens.

“The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct _ and only that conduct _ subject to criminal sanction,” she wrote. “And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not.”

Lawrence and Garner initiated the case after they were arrested on Sept. 17, 1998, by Harris County sheriff’s officers who entered Lawrence’s apartment while they two men were engaged in sex. The officers said they were responding to an informant’s apparently false tip that an armed man was “going crazy” in Lawrence’s apartment. The two men were jailed and fined $200 on a violation of the Homsexual Conduct statute.

A three-judge panel of the Texas Court of Criminal Appeals overturned their conviction under the Texas Equal Rights Amendment in June 2000, ruling that the law impermissibly discriminates on the basis of sex. But the full appeals court reinstated the conviction in March 2001 on the grounds that the law “advances a legitimate state interest, namely preserving public morals.”

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,” the high court ruled in overturning the Texas appeals court.

The Harris County district attorney’s office, backed by religious groups and family organizations, argued that the law should be preserved under the state’s responsibility to regulate the “cultural and moral mores” of its 21 million citizens.

Although the sodomy laws are enforced infrequently, Michael Adams, an attorney with Lambda Legal Defense and Education Fund, which represents the plaintiffs, said their existence results in other forms of discrimination against gays and lesbians. The laws have been cited as basis for denying jobs to gay and lesbians or preventing them from adopting children, he said.

“These laws are not prosecuted that frequently, but they are kept on the books to brand gay people as second class citizens,” he said. “It ends up being a government endorsement of gay discrimination.”

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