Supreme Court Will Hear Sodomy Case
PlanetOut.com Network, December 2, 2002
By Ann Rostow
SUMMARY: On Monday the U.S. Supreme Court agreed to hear a sodomy law
challenge that has potential to overturn the 1986 Bowers v. Hardwick
On Monday, the U.S. Supreme Court agreed to hear the case of Lawrence
and Garner v. Texas, a sodomy challenge that has the potential to overturn
the 1986 precedent of Bowers v. Hardwick.
The Supreme Court’s 5-4 opinion in Bowers v. Hardwick, ruling that
Georgia and other states had the right to criminalize sodomy on grounds of
public morality, set the gay rights movement back on its heels. Although the
decision has since been eclipsed by the pro-gay ruling in Romer v. Evans,
(striking a Colorado amendment that prohibited gay rights laws or policies),
conservative courts still cite Bowers v. Hardwick to support anti-gay
rulings on a range of issues.
Since Hardwick, the composition of the Supreme Court has changed
dramatically. With six new justices, only justices Rehnquist, O’Connor and
Stevens remain from the Hardwick Court. The 1996 Romer court, however,
is unchanged from the day when it ruled 6-3 that the Colorado amendment
trampled on the gay community’s right to equal protection by treating gay
Coloradans differently under the law for no reason other than general
Unlike Hardwick, the Texas case rests both on the right to privacy
and the right to equal protection. Texas’s sodomy law applies exclusively to
homosexuals, treating gay men and lesbians differently than straight Texans,
and requiring the state to present the court with a rational reason for the
disparity. "Animus alone," the Romer decision said, is not a
good enough excuse.
The Texas case stemmed from the arrest of two Houston men who were having
sex in their own bedroom when the police entered their home on a false
emergency call. John Lawrence and Tyron Garner were arrested, and jailed for a
night. The matter went up the ranks of the Texas courts, winning an appellate
court ruling, but losing to the full appellate court of the Houston area.
Subsequently, the state’s highest criminal court declined to review the
case, and Lambda Legal Defense and Education Fund petitioned the high court in
The Supreme Court accepts a small fraction of the petitions submitted, and
does so generally with an eye towards resolving or clarifying an important
Justices Rehnquist and Stevens would be expected to maintain the positions
they took in Hardwick, the former in the majority and the latter in
dissent. Justice O’Connor voted with the majority in Hardwick, but
also voted with the majority in the equal protection case of Romer. As
for the rest of the court, Scalia and Thomas are staunch conservatives.
Ginsburg, Souter and Breyer are likely on the gay rights side. And Kennedy,
like O’Connor, is considered a swing vote—a swing vote who nonetheless
authored the strong majority opinion in Romer.
Advocates for gay rights praised the high court’s announcement on Monday.
"This is a significant step forward because it means the court has
seen the serious constitutional problems with these (sodomy) laws and is
willing to look at them closely," said Ruth Harlow, Lamda’s legal
director, in a written statement. "We now have an opportunity to convince
the court to remedy the widespread harms to gay and lesbian people caused by
Texas’s law and others like it."
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