Last edited: December 19, 2004

Justices to Decide Same-Sex Sodomy

Chicago Tribune, December 3, 2002
435 N. Michigan Avenue, Chicago, IL 60611
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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 privacy rights.

"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 treated equally.

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 condemning homosexuals."

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 unacceptable."

‘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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