Last edited: February 14, 2005

U.S. Supreme Court Asked to Review Constitutionality of Texas "Homosexual Conduct" Law

Lambda Legal charges law violates lesbian and gay Texans’ constitutional rights to privacy and equal protection.

Lambda Legal Defense and Education Fund, July 16, 2002 
News Release

Contact: In New York: Geoffrey Knox 212-229-0540
In Dallas: Lee Taft 214-219-8585

New York and Dallas—Lambda Legal, representing two Houston men, today asked the United States Supreme Court to review the Texas "Homosexual Conduct" Law and declare it unconstitutional. That law bans intimate relations, including oral and anal sex, between consenting adults of the same sex. The Texas law does not apply to heterosexual couples, but instead singles out same-sex couples for this criminal ban. The men represented by Lambda Legal were arrested and convicted for having sex in the privacy of one man’s home.

The case, Lawrence and Garner v. Texas, presents the High Court with two independent constitutional claims that Lambda Legal urges it to review, one based on equal protection and another based on privacy. As part of its privacy argument, Lambda Legal asks the Court to reconsider Bowers v. Hardwick, a 1986 decision that upheld Georgia’s sodomy law and rejected a federal right to privacy challenge brought by a gay man. The Bowers decision has been widely criticized as anti-gay. The Georgia law applied to all couples and has since been struck down by the Georgia Supreme Court.

"These two men in Texas were arrested, jailed, and criminally convicted for having consensual sex in John Lawrence’s home late one evening. The state should not have that power, and we are asking the U.S. Supreme Court to intervene," said Ruth E. Harlow, legal director of Lambda. "There are compelling constitutional rights at stake that make it vital for the Supreme Court to consider this case and strike down this discriminatory law once and for all."

"This law harms all people who believe that their homes should be protected from governmental intrusion," said Lee Taft, director of the Lambda Legal South Central Regional Office, which opened in Dallas in June. "In particular, it brands lesbian and gay Texans as second-class citizens and is used to justify all kinds of discrimination. The first challenge to this law began in 1983, and here we are, almost twenty years later, still confronting its abuse because the highest courts in this state have not addressed it. It is a shame that Texas courts have not had the courage of those in Arkansas, where the state’s highest court recently declared its sodomy law unconstitutional."

Lambda Legal won an important victory on July 5 when the Arkansas Supreme Court struck down that state’s sodomy law, which is similar to the Texas statute.

The Texas case, Lawrence and Garner v. Texas, began on September 17, 1998, when sheriff’s deputies, responding to a false report of an armed intruder, entered John Lawrence’s apartment and found Lawrence and Tyron Garner having sex. Both were arrested and jailed overnight. Once convicted, they were each required to pay a fine. The Texas state courts upheld the convictions, allowing the law to stand based on Texas’ desire to enforce "moral standards."

"The law intrudes on people’s intimate lives and creates a legal double standard for lesbians and gay men. These men literally were arrested behind the walls of the home. Is there any place that should be more private?" said Lambda Legal Supervising Attorney Susan Sommer.

Texas earlier had a sodomy law that applied to everyone, but decriminalized such activities by different-sex partners in 1974.

Only three other states—Kansas, Oklahoma, and Missouri—still have consensual sex laws that target gay men and lesbians. Similar to the recent decision in Arkansas, courts in many states, including Georgia, Kentucky, Montana, and Tennessee, have struck down so-called sodomy laws under their state constitutions. Nine states criminalize private oral and anal sex for both gay and non-gay consenting adults.

Lambda attorneys Patricia Logue, Susan Sommer, and Ruth Harlow worked on the petition for review. Lambda Legal filed the petition with William M. Hohengarten, Paul M. Smith, and Daniel Mach from Jenner & Block, LLC in Washington, D.C., and Mitchell Katine from Williams, Birnberg & Andersen, L.L.P. in Houston, its cooperating attorneys on the case.


Link directly to Lambda’s news release:

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