Court to Weigh Texas’ Ban on Gay Sodomy
Justices to decide whether states may use laws to punish only same-sex
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
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
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
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
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
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.
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