Court to Hear Texas Case on Gay Rights
Challenge to State’s Sodomy Statute Could Lead to Landmark Ruling
December 3, 2002
1150 15th Street NW, Washington DC, 20071
By Charles Lane, Washington Post Staff Writer
The Supreme Court agreed yesterday to hear a Texas gay couple’s challenge
to that state’s ban on homosexual sodomy, setting the stage for what could
be a landmark ruling on gay rights.
The question of whether states may criminalize private consensual sexual
conduct between members of the same sex had apparently been settled in 1986,
when the court ruled 5 to 4 that the Constitution permitted Georgia to punish
a gay man for violating its sodomy statute.
But yesterday’s announcement by the court, whose personnel has changed
considerably since 1986, appears to suggest interest by at least some justices
in reassessing that ruling. In their appeal petition, lawyers for the Texas
couple specifically urged the court to overturn the 1986 decision, which held
that the right to privacy did not include a right to homosexual sex.
The number of states with sodomy laws that apply to all people has declined
from 24 to 13 since 1986, and only four states—Kansas, Oklahoma and
Missouri, in addition to Texas—have laws that criminalize only homosexual
sex. But both proponents and opponents of the Texas law are treating the case
as one of potentially major significance.
"We applaud the Supreme Court’s decision and we hope this is the
beginning of the end to an unfortunate chapter of singling out gay and lesbian
people for state-sanctioned persecution," said Kevin Layton, general
counsel and legal director of the Human Rights Campaign, a gay rights group.
"Petitioners are attempting to force this country to condone
homosexual relationships and to create a universal right, based on those
relationships, which has never been recognized in the Constitutional history
of the United States," attorneys for the Pro Family Law Center, which is
associated with California-based Abiding Truth Ministries, wrote in a
friend-of-the-court brief urging the court to refuse the appeal.
The court agreed to hear the case of John Geddes Lawrence and Tyron Garner,
who were arrested in 1998 by sheriff’s deputies in Harris County, Tex., who
came to their apartment in response to a false report of "an armed man
going crazy," and found the men engaged in anal sex. They were charged
with deviate sexual intercourse, convicted and fined $200.
The two men argue that Texas’s enforcement of its Homosexual Conduct Law
violates their right to privacy and their constitutional right to equal
treatment by the state—because it penalizes certain private sex acts when
they are committed by same-sex couples, but not by heterosexuals.
But a state appeals court, relying in part on the U.S. Supreme Court’s
1986 ruling, rejected their arguments, saying that there was no fundamental
right to homosexual conduct and that the state legislature had passed the law
based on its rational belief that homosexuality is immoral.
Gay rights advocates say that logic paves the way for disparate treatment
that can cost gays jobs and income, because those convicted of homosexual
sodomy in Texas are guilty of a "crime of moral turpitude" that
could disqualify them from certain professions.
"This discriminatory criminalization tears at gay relationships and
stigmatizes loving behavior that others can engage in without the brand of ‘lawbreaker,’"
attorneys from the Lambda Legal Defense and Education Fund, a New York-based
gay rights organization, told the court in their appeal petition. "The
law sends a powerful signal from the State condemning homosexuals. Not
surprisingly, then, it is also used to justify discrimination against gay men
and lesbians in parenting, employment, access to civil rights laws, and many
other aspects of everyday life."
But Harris County, represented by District Attorney Charles A. Rosenthal,
argued in its brief to the court that "[morality] is a fluid concept, and
public opinion regarding moral issues may change over time, but what has not
changed is the understanding that government may require adherence to certain
widely accepted moral standards and sanction deviation from those standards,
so long as it does not interfere with constitutionally protected
The Supreme Court has sent somewhat mixed signals on gay rights in recent
In 1996, the court, by a 6 to 3 vote, struck down a Colorado law, approved
by referendum, that would have prohibited "all legislative, executive, or
judicial action at any level of state or local government designed to protect
the status" of gays.
Writing for the court, Justice Anthony M. Kennedy, who had not yet joined
the court in 1986, noted that the law reflected little more than a popular
"animus" against gays.
But in 2000, the court, with Kennedy joining a 5-4 majority, held that the
Boy Scouts of America could ban gay scoutmasters because the group has a right
to define its own criteria for membership.
The case is Lawrence v. Texas, No. 02-102. Oral argument will take
place in March, and a decision is expected by July.
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