Justices to Reconsider Ruling Against Sex Between Gays
New York Times,
December 3, 2002
229 W. 43rd Street, New York, NY 10036
By Linda Greenhouse
WASHINGTON—The Supreme Court today set the stage
for a major reconsideration of its approach to gay rights, accepting a
challenge by two gay men to a Texas law that treats same-sex couples as
criminals for the same sexual practices that are legal there between a man and
While the case offers the justices several possible avenues for striking
down the Texas law, including equal protection and due process, any route the
court chooses would have the effect of repudiating its declaration in Bowers
v. Hardwick 16 years ago that the notion that the Constitution protects the
right of gay men and lesbians to sexual intimacy in the privacy of their homes
was "at best, facetious."
Bowers v. Hardwick is notorious in the gay community, and one member of
that 5-to-4 majority, Justice Lewis F. Powell Jr., later said publicly that he
regretted his vote. Among the three questions presented to the court in the
new case, filed by the Lambda Legal Defense and Education Fund, a gay rights
organization based in New York, was whether Bowers v. Hardwick should
be overruled. In granting review on that question, as well as the questions
raising equal protection and due process arguments, the court placed the 1986
precedent directly on the table.
In that respect, the new case, Lawrence v. Texas, No. 02-102, is
similar to the court’s reconsideration last term of whether the death
penalty could constitutionally apply to retarded people. Overturning a
precedent from the 1980’s, the court ruled that it could not.
Just as a growing number of states had already rejected capital punishment
for the retarded, the trend among state legislatures and courts has been
toward abolishing criminal sodomy laws. The Georgia law the high court upheld
in 1986 was overturned by a state court ruling in 1998, and the state no
longer has a law prohibiting consensual sex. In 1986 half the states had laws
like Georgia’s. Now only 13 do. Like the Texas "Homosexual
Conduct" law, the laws of Kansas, Oklahoma, and Missouri apply only to
"deviate sexual intercourse with another individual of the same
sex," while the laws of Alabama, Florida, Idaho, Louisiana, Mississippi,
North Carolina, South Carolina, Utah, and Virginia make sodomy a crime for
Such laws are applied almost exclusively against gay people, and can be
extremely harmful in child custody and other family law disputes.
While there is of course no guarantee that the court plans to strike down
the Texas law, which defines "deviate sexual intercourse" to include
oral and anal sex, the general sense today among lawyers who follow gay rights
issues was that the court would not have bothered to intervene in the case
unless a majority of justices had concluded the time had come to revisit the
"Society is so much more open now," Ruth E. Harlow, the lead
counsel in the case, said in an interview today. She said the justices could
be expected to have "a more realistic perspective" on the issues
raised by the case, and might take the intervening legal developments by
states as "a sign that their earlier assessment was not really in step
with what the states think."
The two men challenging the law, John G. Lawrence and Tyron Garner, were
arrested in 1998 in Mr. Lawrence’s Houston home by sheriff’s officers who
were investigating a neighbor’s report of a "weapons disturbance."
While the report was false, and the neighbor was later convicted of filing a
false report, the officers during their search found the two men having sex.
They were held overnight in jail, and were later convicted and fined $200
They appealed on federal constitutional grounds of equal protection and
privacy, and prevailed before a panel of the Texas Court of Appeals. But the
full nine-judge court voted to rehear the case, and upheld the law last year
by a vote of 7 to 2. The Texas law "advances a legitimate state interest,
namely, preserving public morals," the majority said.
The next highest state court, the Texas Court of Criminal Appeals, kept the
men’s appeal on its docket for a year but ultimately refused to review the
In similar fashion, last week the court ordered Kansas to respond to an
appeal filed by the American Civil Liberties Union in another gay rights case,
Limon v. Kansas, No. 02-583. This case challenges the different
treatment under Kansas law of oral sex between teenagers. When one member of
the couple is aged 14 to 16 and the other is older, the act is statutory rape
and the penalty is probation if the two are heterosexual. But the probation
penalty does not apply to same-sex teenage couples. The defendant in this
case, Matthew R. Limon, who was 18 when he had consensual oral sex with a
14-year-old boy, received a 17-year prison sentence.
In its brief urging the court not to hear the Texas case, the state said
that given the history of criminal laws against sodomy, "that conduct
could not conceivably have achieved the status of a ‘fundamental right’ in
the brief period of 16 years since the Bowers case was decided."
Three members of the court, Chief Justice William H. Rehnquist and Justices
Antonin Scalia and Clarence Thomas, are likely to agree readily with that
statement. But the other six justices have shown themselves to be open to
arguments on behalf of civil rights for gays. They comprised the majority in a
1996 case, Romer v. Evans, that overturned a Colorado constitutional
amendment designed to prevent cities and towns in the state from adopting gay
rights ordinances. Of the six, only Justice Sandra Day O’Connor was on the
court when Bowers v. Hardwick was decided. She voted with the majority.
The case will be argued in April and decided by early summer. . . . [The
rest is about other cases.]
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