Last edited: February 14, 2005

Supreme Court Will Hear Sodomy Case / 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 case.

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 hostility.

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 July.

The Supreme Court accepts a small fraction of the petitions submitted, and does so generally with an eye towards resolving or clarifying an important constitutional issue.

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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