MAKING HISTORY Attorney Mitchell Katine reflects on his role in the case that may change America

I am primarily a civil litigation attorney representing individuals in employment, insurance, business, and real estate matters, but as a gay individual, I have always looked for ways to use my skills to help the gay and lesbian community. Unfortunately, since so few laws protect gay and lesbian people, I have had very few opportunities to support clients on gay or lesbian civil rights matters. This has been a big source of frustration for me.

That changed in 1998, when I received a telephone call from a friend, who asked me if I would be willing to represent two men who were arrested for having sex in their home.

I thought the call was a joke.

After 15 years of practicing law and representing many members of the gay and lesbian community, as well as hundreds of HIV-positive people, I had never heard of anyone who had been arrested for having sex in the privacy of their home. I thought someone had to be drunk, on drugs, or having sex in public to be arrested. So I asked for evidence that these men, John Geddes Lawrence and Tyron Garner, were arrested solely for this reason.

Within a few minutes, I received a copy of the paperwork filed by the arresting sheriff's officers. The report read that the officers responded to what later proved to be a false report of a weapons disturbance. Upon entering the apartment, the officers discovered John and Tyron engaged in anal intercourse, which violates 21.06 of the Texas Penal Code. The men were subsequently arrested and taken to jail.

I have known about the Texas Homosexual Conduct law for many years, and to this point I knew it was used against individuals to classify them as criminals in areas of employment, housing, family law matters, and general discrimination. But I had never heard of an active application of the law to gay people who were having sex in the privacy of their own home.

During the term of Governor Ann Richards, I was considered for an appointment to the Texas Real Estate Commission. As part of the screening process, I was required to complete a questionnaire, which asked me about my personal and business conduct. One of the questions asked if I had ever been arrested. I found this question troubling, since it did not ask whether I had ever been convicted of a crime, but only if I had been arrested for one. I instantly thought back to the Texas Homosexual Conduct statute and realized that my consideration for appointment to the commission could be jeopardized if I had been arrested for anything, including homosexual conduct.

I was able to answer No to the question, but when I thought about my clients-to-be, I realized their response would have to be Yes, whether or not they were ever convicted for that offense.

As I reflected on my own experience, and with the written documentation in hand, it appeared to me that this was the case that might ultimately present the question to the U.S. Supreme Court on whether such laws violate the constitutional rights of gays and lesbians to privacy, and whether or not this law violates the equal protection provisions of the Constitution.

I immediately accepted the case and contacted my new clients. I met with John and Tyron, who were very upset that they had had their privacy invaded, were arrested, and then taken to jail.

After my meeting, I contacted Lambda Legal Defense in New York, with whom I had worked in the past on HIV discrimination matters. I wanted to inform them of the significance of my clients' case and seek their input about the best way to handle the constitutional challenges presented by the situation.

Coincidentally, on the day I called, the Lambda Legal directors were holding a legal review meeting to consider new cases. I spoke with Suzanne Goldberg and explained the circumstances of the case to her. Lambda Legal soon agreed to accept the case and work with us.

From the beginning, I understood that this case potentially had national significance, but I also understood that the chances of it actually getting to the Supreme Court and being accepted were very rare. In fact, it was only after two years of working on the case, when the possibility of going to the Supreme Court became more of a reality, that I filed my application for admission to the Court.

A few years ago, I helped start the State Bar of Texas Section on Sexual Orientation and Gender Identification Issues, which was the first section in the country that addressed gay and lesbian issues and HIV issues. Although the process by which we established the section was difficult, to say the least, it is important to realize that the public attention that our application received was not wasted. I believe that the more the public thinks about, talks about, and is forced to make decisions about gay and lesbian and HIV issues, the more heterosexual friends, families, and adversaries will come to understand the fight for gay and lesbian civil rights.

The same analysis and thought process has gone into whether or not to proceed to the highest court in this country with the Lawrence and Garner v. Texas case. Since the beginning, we have had to decide the risks of going forward versus the potential positive results that might be achieved, because in doing so, we had to understand that we were already burdened with a very bad case from 1986 called Bowers v. Hardwick.

In that case, the Supreme Court said that gay and lesbian people do not enjoy the same right to privacy that other citizens in this country enjoy. But I considered two very important factors when I decided to proceed.

The first is that many legal scholars have said that the decision is incorrect and should be overturned. By proceeding forward with this case, we determined that it would enable the Court, if it ultimately took the case, to consider overturning the decision.

The second important factor is that the Bowers v. Hardwick case was decided strictly on privacy issues, and not the equal protection issues that are addressed in our current case. The Texas Homosexual Conduct statute criminalizes sodomy not for all practitioners, but only based on the gender of the individuals engaging in that behavior. For this reason, I believe the statute clearly violates the equal protection provisions of the Constitution. The only grounds that have been asserted in support of the law have been morality and family values, which I do not believe are legitimate grounds to uphold the statute.

I think it would be naive to fail to comment on the political influence that our system of judges has on the decision-making process in Texas. There have been many cases when a judge has indicated to me that he or she has made a ruling or a decision out of concern for the negative response from the media and the voters.

At the same time, I think it is important to note that we were originally successful at the Fourteenth Court of Appeals, when Justice Anderson and Chief Justice Murphy declared the Texas Homosexual Conduct statute is unconstitutional based upon the Texas Equal Rights Amendment.

It was extremely courageous of those two Republican judges to have issued that opinion when they must have known how their political party would view it. In fact, after they issued their 2-1 panel decision, there was a strong backlash against them by the Republican Party.

U.S. Supreme Court Justice appointments are for life. Once selected by the president and approved by Congress, the Justices do not fear being voted out of office or replaced by any constituency. Therefore, it is my hope and belief that the Supreme Court is independent of the political pressures that we have to endure in Texas.

I feel strongly that the Court will ultimately declare the Texas Homosexual Conduct statute unconstitutional and possibly overturn Bowers v. Hardwick. With the death of many, many friends and clients who have been active in gay and lesbian civil rights and HIV matters, including the late Eugene Harrington, a professor at Texas Southern University's Thurgood Marshal School of Law, I am often reminded that there are few of us surviving to carry the torch of civil rights matters.

On March 26, 2003, we will enter the Supreme Court chamber, which proudly proclaims "Equal Justice for All." As a gay attorney, I am excited because this case offers me a rare opportunity to be involved in a truly historic event that will affect the future of gay and lesbian people. I am also excited to be involved with Lawrence and Garner v. Texas because, as a new father, I feel as if I am doing my part in order to try to make the country and world a better place for my children and the children of other people.

Mitchell Katine is an attorney with Williams, Birnberg & Andersen L.L.P.

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