Last edited: February 14, 2005

Court to Weigh Texas’ Ban on Gay Sodomy

Justices to decide whether states may use laws to punish only same-sex couples.

Los Angeles Times, December 3, 2002
Times Mirror Square, Los Angeles, CA 90053 Fax: 213-237-7679 or 213-237-5319

By David G. Savage, Times Staff Writer

WASHINGTON—The Supreme Court took up a potential landmark case for the gay-rights movement Monday, agreeing to decide whether the Constitution permits states to enforce anti-sodomy laws exclusively against same-sex couples.

Until now, the high court has been wary of saying that discrimination against gays and lesbians violates the 14th Amendment’s guarantee of "equal protection of the laws."

If such discrimination is forbidden, it could affect state laws on adoptions, foster care, marriage and employment.

On Monday, the justices said they would hear an "equal protection" challenge to a Texas law that criminalizes "deviate sexual acts" between people of the same sex.

Two Houston men, John Geddes Lawrence and Tyron Garner, are appealing their convictions and $200 fines for violating the law. They were arrested in 1998 when sheriff’s deputies, responding to a false report of an armed intruder, found the two men having sex in Lawrence’s apartment.

Lawyers for the Lambda Legal Defense Fund in New York who appealed their case say the Texas law "brands gay people as second-class citizens."

Lawrence and Garner were "punished for engaging in consensual sexual intimacy in the privacy of one of their homes," said Ruth E. Harlow, a Lambda lawyer. "Texas’ ‘homosexual conduct’ law targets gay and lesbian couples while leaving heterosexual couples free to engage in the very same acts."

Kansas, Missouri and Oklahoma, in addition to Texas, still have anti-sodomy laws that target gays only. Nine other states have laws on the books that make oral and anal sex a crime, but they apply to all adults. They are Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.

In 1986, the high court rejected a gay man’s challenge to Georgia’s anti-sodomy law and said the Constitution’s right to privacy did not extend to intimacy among gays.

In a 5-4 decision in Bowers vs. Hardwick, Justice Byron R. White commented that it was "at best, facetious" to say sex between gays is a fundamental right deserving of constitutional protection.

In the new case, Lawrence vs. Texas, the gay-rights lawyers urged the court to overturn Bowers vs. Hardwick. But they spend most of their energy arguing that the Texas law should be struck down on equal protection grounds.

In defending their law, Harris County prosecutors say the Texas Legislature determined that "homosexual sodomy is immoral."

The state repealed its anti-sodomy law for heterosexuals in 1976. State legislatures are the "deliberative bodies properly charged with the task of determining whether particular conduct is still regarded as immoral," they said, and for that reason, the prohibition on homosexual conduct was maintained.

William Delmore III, the Houston prosecutor, also argued that the law does not unfairly target gays. Heterosexuals can engage in homosexual conduct, and the law is "applied equally to both men and women who engage in the prohibited conduct," he said.

At the time of the Bowers case in 1986, 24 states had anti-sodomy laws. Since then, half of those laws have been repealed or invalidated by state courts.

Only three justices remain from the 1986 decision. Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor voted with the majority to uphold Georgia’s anti-sodomy law. Justice John Paul Stevens dissented.

In the new case, which will be heard in March, Justice Anthony M. Kennedy figures to hold the key vote.

A Reagan appointee, Kennedy usually votes with the court’s conservative majority on such issues as affirmative action and state’s rights.

However, he wrote an opinion for the court in 1996 that struck down a Colorado voter initiative that repealed the state’s many antidiscrimination ordinances forbidding bias against gays and lesbians. Kennedy called the initiative arbitrary and irrational and said it violated the equal-protection guarantee in the 14th Amendment.

O’Connor joined in the 6-3 majority in the case of Romer vs. Evans.

Kennedy’s opinion stopped short of saying the discrimination based on sexual orientation was generally unconstitutional.

However, his approach opened the door to striking down other laws as arbitrary and irrational.

The justices have refused repeatedly to hear challenges to the military’s policy of excluding openly gay men and women.

[Home] [News] [USA]