SUPREME CHANCE The High Court justices hear arguments this month in the Texas sodomy law case. Their ruling will change our lives by Josef Molnar

On March 26, the United States Supreme Court will hear opening arguments in Lawrence and Garner v. Texas, one of the most important cases in the history of gay civil rights.

The Court will decide whether the Texas Homosexual Conduct statute violates the gay community's constitutional right to privacy and equal protection under the law. The statute, commonly known as the Texas sodomy law, impacts the lives of gay and lesbian people by criminalizing consensual sex between same-sex partners. Apart from the issue of outlawing the most private, intimate conduct of American citizens, the law (and similar laws in other states) is often cited by government, industry, the church, and individuals as the foundation for discrimination against gay, lesbian, bisexual, and transgender people.

The Case

In September of 1998, Harris County sheriff's deputies, responding to a neighbor's false report of an armed intruder, entered John Lawrence's apartment and found him engaging in consensual sex with another man, Tyron Garner. The men were arrested, jailed, and convicted under the Texas Homosexual Conduct statute, a Class C misdemeanor. They were later released and fined $200 each.

Even though punishment for the offense does not include imprisonment, Garner and Lawrence were arrested and held overnight based on a 2001 Supreme Court ruling, which states that an officer who witnesses a crime can arrest the offender.

The neighbor who reported the incident was later jailed and convicted of filing a false report, but the damage was done. Garner and Lawrence are now considered sex offenders in several states, a fact that requires them to register as such should they move to any of those states.

Being stamped with the sex offender label is bad enough. However, disclosure of such a conviction is typically required on applications for everything from apartment rentals to loan requests, and will almost always adversely affect the outcome. Sex offenders are also restricted from a host of professional and lay occupations, such as bus driving, interior design, and teaching. Few people would consider sexual offenders for volunteerism or in child-custody cases.

Garner and Lawrence took the case to the 14th District Court of Appeals, asserting that the homosexual conduct law violated their constitutional rights to privacy and the equal rights amendment of the Texas constitution, which states "equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." A three-judge panel of the court overturned the conviction.

The Harris County district attorney appealed the case to the entire body of appellate judges, which reinstated the conviction. Garner and Lawrence then appealed to the state's Criminal Court of Appeals, which denied the case. In December, the Supreme Court announced the March hearing.

Three concerns

The Lawrence and Garner v. Texas case will present three concerns to the Supreme Court. The Justices have the option of addressing all, some, or none of these points, but an affirmative answer to any one of them will result in progress for gay civil rights:

1). If the Texas Homosexual Conduct law violates federal equal protection laws;

2) if gay people have the right to privacy in their own homes; and

3) if the 1986 Bowers v. Hardwick decision should be overturned.

Houston lawyer Mitchell Katine has represented Lawrence and Garner in court [to read his essay "Making History," click here]. In a recent interview, he said the Texas law both criminalizes gay people and defines how others perceive gay people.

"It has an impact on how other people view homosexuals," he said, "because we are taught that we make laws that criminalize bad behavior, and that people who violate those laws are bad people."

Katine disagrees with the state's claims that the law equally criminalizes homosexual conduct among all people, both gay and straight. "They have said that this is not a law that involves homosexuals," Katine said, "because straight people have sex with straight people of the same sex, too."

Ruth Harlow, the legal director with Lambda Legal, the New York-based nonprofit organization that provides legal resources to the gay community in civil rights issues, and a constitutional law expert, will present the oral argument before the Supreme Court for the petitioners. She previously argued the case before the Court of Appeals. (William J. Delmore III of the Harris County district attorney's office and Matthew Paul, state prosecuting attorney, will present the argument for the state of Texas.)

"This is a very important case for all lesbians and gays in hoping to finally lift a sodomy law that has been hanging over their heads," Harlow said in a recent telephone interview from Lambda Legal's office. "All adults, whether gay or straight, have the right to engage in consensual sex with another adult."

Although all states have at one time had sexual conduct laws governing so-called "unnatural" sex acts, most states have repealed these laws. Only 13 states-Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia-continue to outlaw sodomy for straight and gay people. The law in Kansas, Missouri, Oklahoma, and Texas prohibits sodomy only for same-sex couples.

These states claim to maintain the anti-sodomy laws for moral reasons, but Katine pointed out that outlawing private, consensual behavior does not pose a state interest, since such relations do not challenge public decency. In fact, the state's lack of prosecutorial interest in the sodomy law supports the argument for removing it entirely.

If the Supreme Court agrees that the Texas sodomy law promotes inequality for gay people, Kansas, Missouri, Oklahoma, and this state will have to decide whether to expand their laws to include heterosexuals or repeal the laws.

Private Lives

The Court will strike a serious constitutional blow to the sodomy law if it decides to rule that gays have the fundamental right to privacy as outlined in the 14th Amendment. Depending on the way it words a decision, the Court could simultaneously strike down laws that seek to legislate a person's intimate behavior in his or her home, which also affects heterosexual couples in states with applicable laws.

Previous Court rulings have limited the law's ability to investigate people in their homes, thus preventing sodomy laws in general from being enforced through observation by law enforcement officials. Still, the Garner and Lawrence case demonstrates how circumstances can bring the law into a person's home and uncover intimate behavior that the state deems illegal.

"That would say that all persons have the right to engage in whatever sexual behavior they want in the privacy of their home, as long as it's not for money, or involving children," Katine said. "I think it would provide some strength to gay and lesbian people."

However, the Court could decide instead to maintain that the state has a right to legislate personal behavior, and instead decide to take the opportunity to remove the inequality posed by Bowers v. Hardwick.

In that case, the Court upheld a Georgia statute that criminalized homosexual conduct, citing the due-process clause. It declared that the Constitution does not grant homosexuals the same right to privacy as heterosexuals.

Although the Supreme Court could decide to retain Bowers v. Harwick, a number of legal experts have raised questions about its constitutionality. These individuals include Lewis Powell, the Justice who cast the tie-breaking vote on the case. After his retirement in 1987, Powell (who died in 1998) wrote that he voted as he did in part because he didn't think such laws mattered. [For more on this issue, click here to read Daryl Moore's January 2003 column, "Just Cause."]

The Court contradicted the Bowers decision by establishing in the 1996 case Romer v. Evans that laws denying gay people their civil rights are unconstitutional.

By overturning the Bowers decision, the Court would equalize the privacy issue for gay and straight people, Katine pointed out.

"This is not a question of whether judges like homosexuals or homosexual behavior," he said. "This is a question of whether or not individuals have the right as an adult to engage in that behavior. Our country stands for the proposition of protecting unpopular thinking and thoughts and actions and behavior, and so I'm hoping the court will stand by that in this area."

Equalizing privacy rights, however, does not automatically mean individuals have a right to sexual privacy in their homes. States would still have the right to ban sodomy, but a ruling against the state of Texas would force all states that single out gay people to rewrite those laws to include heterosexuals. This act would reverse Texas' last change in its sodomy laws, which the legislature rewrote in the 1970s to exclude straight people.

"The court could say that the state has a right to say whether people can engage in sodomy in their house or not and uphold Bowers v. Hardwick," Katine said. "And in that same decision they can say, 'Although we think a state can make that law, they can't single out gay or lesbian people. It's either all or nothing.'"

The decision might encourage Texas to remove the Homosexual Conduct law instead of equalizing it, but the repeal would not eliminate the possibility that a law addressing "deviant sexual behavior" for all state residents might be added later.

Before the Bench

The struggle for the fate of gay people rests in the hands of the Supreme Court, which has its fair share of conservatives. However, at least four Justices had to agree to even consider the case, which indicates that they consider the issues important enough to warrant a review.

One of the Court's most conservative Justices, Antonin Scalia, takes a broad approach to every American's right to privacy, and he is expected to reject the sodomy law as a breach of personal privacy. Scalia wrote the majority opinion in a recent case involving home searches using thermal imaging, in which the Court denied law enforcement officials the right to do so. The decision severely limited the law's ability to monitor the homes of citizens.

Justices Clarence Thomas and Sandra Day O'Connor have also historically supported right-to-privacy issues. Although O'Connor was part of the majority during the Bowers case, the concerns presented in this new case may give her an opportunity to consider the situation from a new angle. Katine said he is hopeful that moderate Justices, such as Anthony Kennedy, will agree.

"We may get a very good decision with a lot of justices-and not just a 5-4 decision," he said. "We may have seven or eight judges."

As in the 1954 Brown v. Board of Education case, which outlawed segregation, the Supreme Court will find itself attacked by groups that will believe it acted inappropriately, whatever the decision.

"If they come down in favor of gay and lesbian people, I'm sure that there will be a lot of conservative people who feel the Supreme Court has committed an abomination," Katine said. "And if they come down and say, 'This is not a violation of equal protection,' that this is not a violation of privacy . . . there are a lot of people who will be very disappointed in the Supreme Court, who feel that they . . . are not enforcing the laws as they should."

Although overturning laws that target gay people will help them demand equal treatment in legal cases, it will not guarantee social acceptance. Much of the standard, popular opinion regarding homosexuality derives from religious beliefs, which a Supreme Court ruling will not change. However, opponents of full rights for gay people would no longer have legal support for those beliefs.

Although the Supreme Court can overrule the Texas law and declare that gay people have a right to privacy, the lack of legal supports in other areas still affects gays outside of their homes. There are few laws that protect gay, lesbian, bisexual, and transgender people from being fired from their jobs, and even fewer laws that address the legal rights of committed gay couples.

Katine believes that even if the Supreme Court does not rule favorably in this case, the media attention has advanced gay people by helping society to understand the lives of gay people.

"That provides an educational opportunity for people to learn about homosexuals and homosexual behavior, and it destigmatizes it to a certain degree," he said, "and I think that's a good thing."

"So win or lose, we win."

Josef Molnar interviewed AIDS activist Kevin Jackson for the February issue.

THE BOWERS V. HARDWICK PRECEDENT

The Supreme Court decided Bowers v. Hardwick on June 30, 1986, upholding a lower-court decision that held Georgia's sodomy law constitutional. The law criminalized consensual sodomy between two adults, including gay people.

In 1982, Michael Hardwick was charged with violating Georgia's sodomy law after a police officer (serving a warrant for Hardwick's failure to pay a public-drunkenness fine) entered his home, invited by a houseguest, and caught Hardwick engaged in oral sex with his partner. The district attorney decided not to bring the charges against him. Still, Hardwick brought the suit to a federal court, arguing that the Georgia statute put him, as a homosexual, in imminent danger of arrest, thus violating his constitutional rights. He also said that the statute itself was in violation of the U.S. Constitution.

The district court dismissed the case, indicating that Hardwick had failed to propose a valid claim. Hardwick then took the case to the Court of Appeals, which upheld his claim, citing the Ninth Amendment and the due-process clause of the 14th Amendment when saying that the statute violated Hardwick's fundamental rights to choose how to regulate his private life.

The state appealed the case to the Supreme Court. In its 5-4 opinion, the Court argued that the case only demonstrated that homosexual sex was not a constitutionally protected right.

There were two dissenting opinions. In his dissent, Justice John Paul Stephens indicated that the unreasonably high penalty for violating the Georgia statute-up to eight years in jail-presented an Eighth Amendment issue.

Justice Harry Blackmun wrote the second dissent, in which he held that the majority opinion failed to acknowledge the issue presented in the case, which was whether Americans have the fundamental right to make decisions about their own lives.

Blackmun wrote that laws like sodomy statutes that follow tradition can conflict with the Constitution. "[I]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV," he wrote. "It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

Michael Hardwick died of AIDS-related complications in 1991.

Michael Stuart is a Houston writer. Josef Molnar contributed to this article.

ALLIES

More than 130 respected conservative, liberal, and moderate organizations and individuals have filed amicus curiae, or "friend of the court," briefs expressing their opinion that the Supreme Court should overturn the previous ruling. Groups range from the expected, including the Human Rights Campaign and the National Gay & Lesbian Task Force, to the surprising (former senator and conservative Alan Simpson).

Ackerman, Bruce A.

ACLU of Texas

Action Wisconsin

Affirmation: Gay and Lesbian Mormons

Affirmation: United Methodists for Lesbian, Gay, Bisexual & Transgender Concerns

AFL-CIO

AIDS Action

The Al-Fatiha Foundation

Alliance for Full Acceptance

Alliance of Baptists

American Bar Association

American Civil Liberties Union

American Friends Service Committee

American Orthopsychiatric Association

American Psychiatric Association

American Psychological Association

American Public Health Association

Amnesty International U.S.A.

Anti-Defamation League

The Asian American Legal Defense and Education Fund

Association of Nurses in AIDS Care

The Association of Welcoming and Affirming Baptists

Axios USA

Balkin, Jack M.

The Bay Area Lawyers for Individual Freedom

The Bay Area Transgender Lawyers' Association

Bell, Derrick A.

Brest, Paul

Brethren/Mennonite Council for Lesbian and Gay Concerns

Caminker, Evan

Cato Institute

Chauncey, George

Chemerinsky, Erwin

Cimarron Foundation of Oklahoma

Cole, David D.

The Commission on Social Action of Reform Judaism

Community Center of Idaho

Cott, Nancy F.

Cruz, David B.

D'Emilio, John

Dignity USA

Disciples Justice Action Network

Equal Partners in Faith

Equality Alabama

Equality Florida

Equality Mississippi

Equality Virginia

Fellowship of Reconciling Pentecostals International

Freedman, Estelle B.

Gay and Lesbian Advocates and Defenders

The Gay and Lesbian Affirming Disciples Alliance, Inc.

Gay and Lesbian Alliance Against Defamation

Gay and Lesbian Community Center of Utah

Gay and Lesbian Lawyers Association of South Florida

Gay and Lesbian Lawyers of Philadelphia

GayLaw

The General Synod of the United Church of Christ

Griswold, The Most Rev. Frank T.

Hadassah

Holt, Thomas C.

Howard, John

Human Rights Campaign

Human Rights Watch

Hunt, Lynn

Institute for Justice

Integrity

The Interfaith Alliance

Interights

Jordan, Mark D.

Kansas Unity and Pride Alliance

Karst, Thomas L.

Kennedy, Elizabeth Lapovsky

Kerber, Linda P.

Koppelman, Andrew

The Lawyers Committee for Human Rights

The Lesbian and Gay Bar Association of Chicago

The Lesbian and Gay Law Association of Greater New York

The Lesbian and Gay Lawyers Association of Los Angeles

Levinson, Sanford

Liberty Education Forum

The Log Cabin Republicans

Louisiana Electorate of Gays and Lesbians

Lutherans Concerned/North America

The Massachusetts Lesbian and Gay Bar Association

The Methodist Federation for Social Action

Mexican-American Legal Defense and Education Fund

Michelman, Frank

Minnesota Advocates for Human Rights

The Minnesota Lavender Bar Association

More Light Presbyterians

National Alliance of State and Territorial AIDS Directors

National Association of Social Workers

National Center for Lesbian Rights

National Gay and Lesbian Task Force

National Lesbian and Gay Law Association

National Mental Health Association

National Minority AIDS Council

North Carolina Gay and Lesbian Attorneys

Northaven United Methodist Church

The Northwest Women's Law Center

NOW Legal Defense and Education Fund

The Oregon Gay and Lesbian Law Association

Parents, Friends & Family of Lesbians & Gays

People for the American Way Foundation

Pride at Work

Promo

Puerto Rican Legal Defense and Education Fund

Reconciling Ministries Network

Republican Unity Coalition

Robinson, Mary

Rubenstein, William B.

S.A.V.E.

Seventh-Day Adventist Kinship International

Shiffrin, Steven H.

Simpson, The Honorable Alan K.

Stone, Geoffrey R.

The Stonewall Bar Association

Society of American Law Teachers

SoulForce

South Carolina Gay and Lesbian Pride Movement

Stonewall Law Association of Greater Houston

Texas Chapter of the National Association of Social Workers

The Tom Homann Law Association of San Diego

The Unitarian Universalist Association

The Universal Fellowship of Metropolitan Community Churches

The Washington Lesbian and Gay Legal Society

Whitman-Walker Clinic

The World Congress of Gay, Lesbian, Bisexual & Transgender Jews

Kenji Yoshino

Your Family

THE OTHER SIDE

A portion of the written comments to the Supreme Court from Harris County district attorney Charles A. Rosenthal Jr.:

"There is no conflict for this Court to resolve, and there is no need for this Court's intervention in a debate which is ongoing in the various state legislatures, the deliberative bodies properly charged with the task of determining whether particular conduct is still regarded as immoral to the extent that it warrants the imposition of a penal sanction."

"In light of the fact that homosexual anal sodomy was viewed as criminal behavior under state law and the common law for a period of centuries, that conduct could not conceivably have achieved the status of a 'fundamental right' in the brief period of sixteen years since Bowers was decided."

"Fundamental rights must be grounded in the nation's history and legal traditions, and as noted in Bowers and in the opinion of the court below, the states of the Union have traditionally punished homosexual conduct as a serious criminal offense. History has not changed, and it is inconceivable that homosexual sodomy has suddenly achieved the status of a treasured constitutional right, deeply rooted in the nation's history and legal traditions, in the few years since Bowers was decided."

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