Supreme Court Nears Momentous Decision
December 2, 2002
WASHINGTON—The Supreme Court faces choices in the
next several weeks that have the potential to determine the court’s place in
history—especially in terms of gay civil rights law. Though a gay rights
case from Texas has received little mainstream attention, the case is
potentially the most important such case since the court’s infamous Bowers
v. Hardwick decision in 1986, which upheld Georgia’s sodomy law and
rejected a federal right to privacy challenge brought by a gay man.
The court is being asked to review the Texas "Homosexual Conduct"
Law and declare it unconstitutional. The law, which bans oral and anal contact
between consenting adults of the same sex, does not apply to heterosexual
The case, Lawrence and Garner v. Texas, presents the High Court with
two independent constitutional claims—one based on equal protection and
another based on privacy. As part of its privacy argument, Lambda Legal, which
is representing the accused, has asked the Court to reconsider its 1986 Bowers
v. Hardwick ruling. In that enormously controversial decision, a divided
court majority dismissed as "at best, facetious" the contention that
the right to privacy extended to the choice by consenting gay adults to engage
in sex within the privacy of their home.
Texas is one of a few states with criminal sodomy laws that apply
explicitly only to same-sex behavior. The challenge brought by the Lambda
Legal on behalf of John G. Lawrence and Tyron Garner thus raises a question of
sexual discrimination as well as sexual orientation discrimination. Had either
partner been female, the state would have had no case
"Lawrence and Garner are now convicted criminals because of who they
are, not because of what they were doing in Lawrence’s home when the police
intruded," their appeal asserts. The Texas Court of Appeals upheld their
convictions and $200 fines.
While the Supreme Court is more conservative now than it was in 1986, some
analysts of gay rights say that changes in the social and legal climate could
mean the court will revisit the issue.
In the 1960’s, every state had a criminal sodomy law. By the time of Bowers
v. Hardwick, only half the states did, and now only a fourth do. In a 1996
decision, Romer v. Evans, the court voted 6 to 3 to overturn a Colorado
amendment that barred local governments from enacting ordinances to protect
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