Last edited: January 02, 2005

U.S. Supreme Court Will Hear Lambda Legal’s Challenge To Texas ‘Homosexual Conduct’ Law

Lambda Legal Defense & Education Fund, December 2, 2002
Eric Ferrero, Communications Director
Office: 212-809-8585, ext. 227; Pager: 888-987-1984
120 Wall Street, Suite 1500 New York, NY 10005

New York—The U.S. Supreme Court announced today that it will hear Lambda Legal’s case challenging the constitutionality of Texas’s “Homosexual Conduct” law, which criminalizes oral and anal sex by consenting gay couples and is used widely to justify discrimination against lesbians and gay men.

“This is a significant step forward because it means the court has seen the serious constitutional problems with these laws and is willing to look at them closely,” said Ruth Harlow, Legal Director at Lambda Legal. “We now have an opportunity to convince the court to remedy the widespread harms to lesbian and gay people caused by Texas’s law and others like it.”

Lambda Legal represents John Lawrence and Tyron Garner, who were arrested in Lawrence’s Houston home and jailed overnight after officers responding to a false report from an acquaintance found the men engaged in private, consensual sex. Once convicted, they were forced to pay fines and are now considered sex offenders in several states.

“The state should not have the power to go into the bedrooms of consenting adults in the middle of the night and arrest them,” said Harlow, who is the lead attorney in the case. “But that’s only the beginning of the damage done by this law and others like it around the country. These laws are widely used to justify discrimination against gay people in everyday life; they’re invoked in denying employment to gay people, in refusing custody or visitation for gay parents, and even in intimidating gay people out of exercising their First Amendment rights.”

Laws like the one in Texas are used as an excuse for generally denying basic rights and equal treatment to lesbian and gay people. Recent high-profile cases specifically relying at least in part on such laws include: a Mississippi man who was denied custody of his own child; a Georgia woman who was rejected for government employment; a lesbian minister in Puerto Rico who was told not to testify at a legislative hearing; two lesbian foster mothers in Texas whose foster child was taken from their home; and a North Carolina man whose two sons were taken away from him.

In addition to Texas, three states – Kansas, Missouri and Oklahoma, plus Puerto Rico—still have consensual sodomy laws that apply only to gay people. Nine states – Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah—still have consensual sodomy laws that apply to straight and gay adults, but are invoked only against lesbians and gay men in everyday life. These laws typically ban oral and anal sex with penalties that range from fines to 20 years in prison.

The Supreme Court announced today that it will hear arguments on whether the Texas law violates the federal Constitution’s guarantee that laws must protect and apply to people equally, as well as whether it violates the right to privacy. In 1986, the Supreme Court ruled that Georgia’s law banning consensual sodomy did not violate privacy rights. In bringing the Texas case, Lambda Legal asked the justices to reconsider that ruling.

“It’s tremendously significant that the court is revisiting a previous ruling that has done substantial harm to gay Americans for so many years,” Harlow said. “Society’s knowledge about gay people, gay families and gay lives has increased exponentially since 1986, and we believe a more informed view of constitutional protections for gay people can now prevail.”

Since the U.S. Supreme Court decision upholding Georgia’s sodomy law in 1986, Lambda Legal has helped strike down similar laws in numerous state courts, including Montana, Tennessee and Georgia itself. In July, Lambda Legal successfully struck down Arkansas’ law banning sex between people of the same sex when the state Supreme Court ruled in favor of seven Lambda Legal clients who said the law jeopardized their employment, their legal relationships with their children and their standing as equal citizens.

The U.S. Supreme Court, which agrees to hear only about two percent of the cases brought to it each year, has heard only a handful of cases about the rights of lesbians and gay men. “The court has recognized that this is a tremendously important case for gay people and for all who believe in basic constitutional freedoms, and it did the right thing by allowing us to be heard,” Harlow said. “We’re looking forward to making a powerful and convincing case that these laws are an affront to equality, invade the most private sphere of adult life, and harm gay people in so many ways.”

The Supreme Court issued a briefing schedule for the case today, and Lambda Legal’s opening brief is due in 45 days. The court will hear oral arguments in the case this Spring.

Lambda Legal attorneys Ruth Harlow, Patricia Logue and Susan Sommer, along with Brian Chase in Lambda Legal’s Dallas office, are litigating the case. William M. Hohengarten, Paul M. Smith, and Daniel Mach from Jenner & Block, LLC in Washington, D.C., and Mitchell Katine from Williams, Birnberg & Andersen, L.L.P. in Houston, are Lambda Legal’s cooperating attorneys assisting on the case.

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