Last edited: February 14, 2005

Supreme Court to Decide Texas Sodomy Law

Reuters, December 2, 2002

By James Vicini

WASHINGTON—The U.S. Supreme Court said on Monday it would decide a challenge to a Texas law that makes it a crime for gays and lesbians to have consensual sex in their own homes, agreeing to consider overruling its 1986 decision that upheld state sodomy laws.

The high court said it would hear an appeal by two men convicted of engaging in "homosexual conduct." They argued the law violates constitutional privacy and equal protection rights, subjecting gays to criminal penalties while allowing different-sex couples to engage in the same conduct.

The justices also said they would consider overturning their 5-4 ruling in 1986 that handed gay rights advocates a defeat by declaring that homosexuals have no constitutional right to engage in sodomy.

The Texas "homosexual conduct" law makes it a crime to engage in "deviate sexual intercourse"—defined as oral and anal sex—with another person of the same sex.

It is a lesser, misdemeanor criminal offense, with a $500 fine as the maximum punishment.

"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 Ruth Harlow, legal director of the New York-based Lambda Legal Defense and Education Fund Inc., which represents the two men.

"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," she said in a statement.

The case involved John Geddes Lawrence and Tryon Garner. On Sept. 17, 1998, sheriff’s officers entered Lawrence’s apartment in Houston while investigating an informant’s report of an armed man "going crazy." The officers observed the two men engaged in anal sexual intercourse.

Lawrence and Garner were arrested and charged with violating the Texas law. They pleaded no contest to the charges and they each were fined $200.

A divided Texas Court of Appeals upheld their convictions, ruling the law "advances a legitimate state interest, namely preserving public morals."


Attorneys for the two men said such laws branded gays as second-class citizens and that discriminatory disapproval of a group of people cannot pass constitutional muster, even when couched as "morality."

The attorneys also urged the Supreme Court to overrule its decision from 1986, when 24 states and the District of Columbia had sodomy laws.

Now, only 13 states have sodomy laws, they said. Besides Texas, the other states are Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia.

Since 1986, the Supreme Court has more forcefully recognized the constitutional privacy protections in the home, and the 1986 ruling has been undermined by a high court decision ten years later that struck down an anti-gay rights law in Colorado, the attorneys said.

Among those supporting the appeal were the American Civil Liberties Union, the National Center for Lesbian Rights, the Gay & Lesbian Advocates & Defenders and the Human Rights Campaign.

"Sodomy laws are unfair, un-American and used to discriminate against gay and lesbian Americans in a number of ways," said Kevin Layton of the Human Rights Campaign, the largest national lesbian and gay political organization.

"We hope this is the beginning of the end to an unfortunate chapter of singling out gay and lesbian people for state-sanctioned persecution," he said in a statement.

Assistant District Attorney William Delmore of Harris County, Texas, opposed the appeal.

"Morality is a fluid concept and public opinion regarding moral issues may change over time, but what has not changed is the understanding that government may require adherence to certain widely accepted moral standards and sanction deviations from those standards," he told the high court.

The legislature existed so laws can be repealed to match the public’s prevailing view of what is right and wrong and to "fine tune" penalties for wrongful conduct, he said.

The Supreme Court will hear arguments in the case in the spring, with a decision expected by the end of June.

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