Last edited: February 14, 2005

Justices Take Gay-Rights Case

Supreme Court Appeal Challenges Texas Sodomy Law

Boston Globe, December 3, 2002
Box 2378, Boston, MA 02107
Fax: 617-929-2098

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 unconstitutional discrimination.

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 protect morality.

"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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