Justices to Decide Same-Sex Sodomy
Tribune, December 3, 2002
435 N. Michigan Avenue, Chicago, IL 60611
By Jan Crawford Greenburg, Washington Bureau
WASHINGTON—The Supreme Court announced Monday that
it would decide whether states can prosecute consenting adults for engaging in
homosexual conduct, an issue that could have widespread implications beyond
the bedroom for gays seeking to be treated on equal footing in the workplace
and in child custody decisions.
Taking up a case from Texas, the justices said they would hear arguments by
two gay men that the state’s sodomy laws violate their constitutional
rights. The men were arrested having sex in the bedroom of one of their homes
after officers responded to a report of a disturbance.
The men were charged with violating a Texas law that prohibits
"deviate sexual intercourse" with a person of the same sex. In
challenging their convictions, they argued that the law treats them
differently from similarly situated heterosexual couples and violates their
"We’re very pleased the court is going to give us the opportunity to
make the case that gay people, like everyone else, ought to have the right to
protection from intrusion into the bedroom," said Paul Smith, a partner
at the Chicago-based Jenner & Block law firm who is representing the men.
‘86 ruling criticized
In deciding the case, the court also said it would consider whether to
overrule a 1986 decision that upheld a similar law in Georgia. Gay-rights
groups have sharply criticized that ruling, as well as state sodomy laws,
which they say have had a harmful effect on gay people and their efforts to be
Twelve other states have criminal laws banning sodomy. Kansas, like Texas,
explicitly bars same-sex sodomy. Missouri, which has a similar law, enforces
it only in part of the state. Oklahoma’s law has been interpreted by state
courts to exclude heterosexual conduct. Alabama, Florida, Idaho, Louisiana,
Mississippi, North Carolina, South Carolina, Utah and Virginia bar consensual
sodomy for all.
"I think it would be surprising to a lot of people—who may or may
not approve of it—to think that police could come into your home and drag
you off to a police station, merely because two consenting adults were engaged
in homosexual activity," Smith said.
But beyond the "deeply personal" privacy concerns, Smith and
other lawyers for the men argue in court papers that the Texas law, which
applies only to homosexuals, sends "a powerful signal from the state
States oppose intervention
"These laws have been used to deny gay people custody, to deny gay
people jobs, to justify all kinds of discrimination," said Patricia
Logue, senior counsel of Lambda Legal Defense and Education Fund, which also
is representing the men.
Lawyers for the state urged the court not to take the case, arguing that
there was no need for it to intervene in a debate that "is ongoing in the
various state legislatures."
The case came about late one night in 1998, when sheriff’s officers
entered the home of John Lawrence while investigating a false report of a
"weapons disturbance," his lawyers said. They discovered Lawrence
having anal sex with Tyron Garner in his bedroom and arrested the men, who
weren’t released from custody until the next day.
They were charged with violating the Texas sodomy law, a misdemeanor that
carries a maximum $500 fine. They pleaded no contest and were convicted and
ordered to pay $200 each in fines and $141.25 in court costs.
The men appealed their convictions, arguing that the law invaded their
privacy rights and discriminated against them based on their sexual
orientation. The Texas Court of Criminal Appeals rejected their claims,
holding that the law "advances a legitimate state interest, namely,
preserving public morals."
In asking the court to take up the case, lawyers for the men argued that
one reason sodomy laws persist is because of the Supreme Court’s 1986
decision in Bowers vs. Hardwick, which rejected a constitutional
privacy claim in a case attacking Georgia’s sodomy law. In that case, the
court said there was a rational reason for the law in that it implemented the
belief of Georgia voters that "homosexual sodomy is immoral and
‘Understanding of gay people’
Smith and Logue said much has changed "in terms of our culture’s
understanding of gay people."
Furthermore, lawyers for the men argue that the Bowers case is in tension
with a 1996 case that invalidated an anti-gay rights amendment in Colorado
because it treated gays differently and violated the Constitution’s Equal
Protection Clause in the 14th Amendment. In that case, the court said states
couldn’t pass laws that specifically deny gay men and lesbians protection
from discrimination because of their homosexuality.
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