Justices Take Gay-Rights Case
Supreme Court Appeal Challenges Texas Sodomy Law
December 3, 2002
Box 2378, Boston, MA 02107
By Lyle Denniston, Globe Correspondent
WASHINGTON—Gays and lesbians yesterday gained a
Supreme Court hearing on their persistent decades-long campaign to gain the
right to privacy and freedom from discrimination for their sexual acts.
Sixteen years after denouncing homosexual conduct in a bitterly divided
5-to-4 ruling, the court agreed to hear an appeal by two gay men from Houston
who are challenging a Texas law that makes it a crime for individuals of the
same sex to engage in sodomy.
Their challenge is the latest in a gay rights campaign that has made major
gains in recent years. In the early 1960s, every state had laws that
criminalized sodomy between consenting adults. Now, only 13 states have such
laws, and four of those states define only sodomy between people of the same
sex as a crime.
Texas is one of those four. The others are Kansas, Missouri, and Oklahoma.
Nine other states ban the practice no matter what the gender of the partners.
When the court holds a hearing on the new case in late March or early
April, the justices will consider whether laws that punish sodomy between
same-sex partners as a crime violate their right to privacy or their right to
be free from official discrimination.
In order for the court to rule in favor of the privacy claim, it probably
would have to overrule its 1986 decision in the case of Bowers v. Hardwick.
In that decision, the five-justice majority ruled that homosexuals have no
constitutional right to privacy that includes homosexual conduct. The late
Justice Lewis F. Powell Jr., who provided the decisive vote in that ruling,
said later that he probably had made a mistake.
The two Houston men expressly asked the court to overturn the 1986 ruling.
The court has never ruled on whether punishing same-sex couples for sodomy,
while not doing so when the partners are of opposite sexes, amounts to
Last year a Texas court of appeals rejected both the privacy and equality
challenges to the Texas law, saying it was fully justified as an attempt to
"Our concern," the state court said, "cannot be with
cultural trends and political movements because these can have no place in our
decision without usurping the role of the Legislature. While the Legislature
is not infallible in its moral and ethical judgments, it alone is
constitutionally empowered to decide which evils it will restrain when
enacting laws for the public good."
The lower court upheld the convictions of John Geddes Lawrence and Tyron
Garner. They had been arrested in Lawrence’s apartment in 1998 after a
neighbor called police and gave a false report that there was an intruder with
a gun in the building. On entering Lawrence’s apartment, police found the
two men having sex. At the time, Lawrence was 55 and Garner was 31.
They pleaded no contest to the charge of sodomy, a plea that allowed them
to file an appeal challenging the law’s constitutionality. Each was fined
$200. Their appeal succeeded in a lower Texas court, but was rejected by the
appeals court, which reinstated their convictions.
The gay men’s appeal is supported by the American Civil Liberties Union
and several gay rights groups. Supporting Texas in the case is the Pro-Family
Law Center, which argues that the law is supported not only by moral
considerations, but also by health-policy concerns.
The justices may decide the case by early next summer.
In a separate action . . . [cut]
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