Last edited: February 14, 2005

Top Court to Address Sodomy

Case of gay Texans, fined for having sex, could affect laws in 13 states

San Francisco Chronicle, December 3, 2002
901 Mission St., San Francisco, CA 94103
Fax: 415-896-1107

Wyatt Buchanan, Chronicle Staff Writer

The U.S. Supreme Court agreed Monday to hear arguments in a case that could strike down anti-sodomy laws in 13 states, revisiting an issue the court last considered in 1986, when it said such laws were constitutional.

The court will hear an appeal from two Texas men who were fined for violating that state’s law against consensual sodomy in 1998. Their lawyers are asking the court to strike down the law as an invasion of privacy and discriminatory toward gays and lesbians.

"The Texas law runs afoul of two very basic concepts," said Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund, a gay rights organization with headquarters in New York.

"One is our government is supposed to treat us as equal," Harlow said. "And also, the government does not belong in consenting adults’ bedrooms."

Texas officials point to the Supreme Court’s 1986 decision upholding a Georgia law against consensual sodomy. In that case, the court ruled that people do not have a constitutional right to privacy when engaging in homosexual sex; Texas prosecutors say their law conforms to the court’s decision.

In Texas, it is illegal for people of the same sex to engage in oral or anal sex, but legal for heterosexuals.

"We believe the legislature could rationally distinguish between people of the same sex engaging in (sexual) conduct and two people of the opposite sex engaging in the same conduct," said William Delmore III, an assistant district attorney in Texas.

Attorneys for the men convicted of sodomy also want the court to overturn its 1986 decision, Bowers vs. Hardwick. That case was based on privacy issues, not discrimination based on sexual orientation, Harlow said.

The current case stems from an incident that happened in Houston in 1986. A Harris County sheriff’s deputy responding to a false report of a burglary at John Geddes Lawrence’s apartment found Lawrence and Tyron Garner having sex.

They were arrested and held for 24 hours and eventually pleaded no contest to breaking the anti-sodomy law. That crime is a Class C misdemeanor in Texas, the same class as traffic violations, and is punishable by a fine of as much as $500. The men were each fined $200.

The men appealed their convictions to a Texas appeals court, where a three- member panel threw out those convictions. The full court later reinstated them.

Nine states have anti-sodomy laws that apply to everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. Four states ban sodomy only for gays and lesbians: Kansas, Missouri, Oklahoma and Texas.

Several states did away with their universal anti-sodomy laws in recent years, including Georgia, but some replaced them with bans that apply only to gays and lesbians, according to Lambda’s petition to the court.

In Texas, the anti-sodomy law is almost never enforced. It usually comes up when two people are having sex in public, and in those cases, prosecutors tend to file the more serious charge of public lewdness, Delmore said.

But this case proves the anti-sodomy law can be enforced, the men’s lawyers argue.

Sodomy convictions often are used against gays and lesbians in other facets of daily life, said Jason Riggs, communications director for the Lesbian Gay Bisexual Transgender Center in San Francisco.

Alabama’s legislature used the law in 1992 as rationale for stopping the formation of gay student groups at state colleges, and a man in Mississippi was denied custody rights because he was gay and was presumably violating that state’s anti-sodomy statute, Riggs said.

"It’s the blanket excuse government uses to deny gay and lesbian people their standing as equal citizens," Riggs said.

But some argue that such disparity is justified because there is a greater public health risk for people who engage in same-sex sodomy.

States have the right to regulate conduct that could result in disease and death, the United States Justice Foundation, based in Escondido (San Diego County), argued in the Texas case.

That foundation filed a friend-of-the-court brief on behalf of the Pro Family Law Center in opposition to the court hearing the case.

The parties will present their arguments to the Supreme Court in late March or early April.

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