Last edited: February 14, 2005

Justices to Reconsider Ruling Against Sex Between Gays

New York Times, December 3, 2002
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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 a woman.

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 everyone.

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 issue.

"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 each.

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 case.

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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