b JUNE 27, 2003
www.houston voice.com HOUSTON VOICE
Supreme Court overturns Texas sodomy law
laws in 13 states
By LOU CHIBBARO JR.
In a sweeping victory for gay rights
advocates, the U.S. Supreme Court on
Thursday overturned sodomy laws in 13
states, including Virginia, declaring that
gay couples, as well as heterosexuals, have
a constitutional right to privacy in the area
of "private sexual conduct."
Attorneys called the 6-3 decision in the
case, known as Lawrence vs. Texas, a stunning victory for the gay rights movement
because of the specific legal changes it will
bring about and because of its strongly
worded declaration on behalf of privacy
rights for gays.
"The state cannot demean their existence or control their destiny by making
their private sexual conduct a crime,"
states the majority opinion, written by
Justice Anthony M. Kennedy.
The case stems from a decision by two
gay men from a Houston suburb to challenge the constitutionality of the Texas
"homosexual conduct" law. The law makes
it a crime for consenting adults of the
same gender to have oral or anal sex in private, while allowing heterosexuals to commit the same acts legally.
The two men, John Lawrence and Tyron
Garner, were arrested by Harris County,
Texas, sheriff's deputies on Sept. 17, 1998,
after the deputies barged into the bedroom
of Lawrence's apartment and observed the
men engaging in anal intercourse.
Authorities said they entered the apartment after receiving a call, which was later
found to be false, that an armed intruder
was on the premises.
Both men pleaded "no contest" to the
charge and were fined $200 each. The plea,
which has the legal effect of a conviction,
could have resulted in several states adding
their names to police sex offender lists.
"We are very pleased with the ruling," Lawrence said at a news conference Thursday. "We never chose to be
public figures. This ruling allows us to
From right, gay attorney Mitchell Katine, gay Houstonians John Lawrence and Tyron Garner, and Lambda Legal's Lee Taft leave a press conference held Thursday
afternoon at the Houston GLBT Community Center. The session was held to brief members of the media on reaction to the U.S. Supreme Court decision striking
down Texas' anti-gay sodomy statute. (Photo by Penny Weaver)
get on with our lives and opens the door
for gay people across the country to be
Attorneys affiliated with Lambda Legal
Defense & Education Fund, which represented Lawrence and Garner before the
Supreme Court, argued that the Texas
homosexual conduct law should be overturned on two grounds. One — the ground
that the high court invoked in yesterday's
decision — holds that the law violates the
Constitution's Hth Amendment due process clause, which protects an individual's
The second ground contended that the
Texas law violates the 14th Amendment's
equal protection clause because it singled
out sodomy committed by same-sex couples and not heterosexual couples.
Had the court chosen the equal protection clause, it would have overturned only
the Texas sodomy law and sodomy laws in
three other states — Kansas, Missouri and
Oklahoma, all of which outlaw homosexu-
Gay Houstonians John
Lawrence (right) and
Tyron Garner read a statement during a Thursday
press conference in reaction to the Supreme Court
decision on the case that
originated in 1998 with
the arrest of the two men.
(Photo by Penny Weaver)
al sodomy only.
By choosing to overturn the Texas law
on the "privacy" rights ground, the
Supreme Court struck down sodomy laws
in the four states in which they apply only
to gays as well as in nine more states,
where the laws apply to both homosexuals
The other states include Alabama.
Florida, Idaho, Louisiana, Mississippi,
North Carolina, South Carolina, Virginia
and Utah. Also included in this category is
Perhaps most important, the court's
ruling overturns the court's own 1986 deci
sion known as Bowers v. Hardwick. That
decision upheld Georgia's sodomy law on
grounds that the law did not violate the
Constitution's Hth Amendment assurance
of privacy rights.
Gay rights activists viewed the Bowers
decision as especially harsh and onerous
because it couched its reasoning for rejecting the privacy rights argument in anti-
"To hold that the act of homosexual
sodomy is somehow protected as a fundamental right would be to cast aside millennia of
moral teaching," then Chief Justice Warren
Burger wrote in a concurring opinion.
"It's a great victory for all Americans
because now all Americans are protected
from government intrusion into their bedrooms," said Paul Smith, a gay Washington
attorney who argued the case on Lambda
Legal's behalf before the court in March.
"They didn't make the 'equal protection' argument because that argument didn't need to be reached," Smith said. "They
said anybody, gay or straight, has a right to
make choices about their sexual partners
and their sexual practices in the privacy of
Joining Kennedy in signing on to the
majority opinion to overturn the Texas
statute on "privacy" grounds were Justices
John Paul Stevens, David Souter, Ruth
Bader Ginsburg, and Stephen Breyer.
Justice Sandra Day O'Connor filed a concurring opinion that supported overturning the Texas law, but based her opinion on
the "equal protection" argument.
Justice Antonin Scalia wrote the dissenting opinion, with Chief Justice
William Rehnquist and Justice Clarence
Thomas signing on to Scalia's dissent.
Thomas also filed a separate dissenting
In his dissent, Scalia called the majority opinion a loss of the "people's right" to
make laws through their elected leaders
that take stands on "moral" issues.
"It is clear from this that the court has
taken sides in the cultural wars," Scalia
said, in a statement he delivered from the
bench, a departure from usual practice.
Kennedy appeared to set the stage for
the majority opinion when he described in
his opinion the rationale for the decision.
"The present case does not involve
minors. It does not involve persons who
might be injured or coerced or who are situated in relationships where consent
might not be easily refused. It does not
involve public conduct or prostitution...
The case does involve two adults who, with
full and mutual consent from each other,
engaged in sexual practices common to a
homosexual lifestyle. The petitioners are
entitled to respect for their private lives.
The State cannot demand their existence
or control their destiny by making their
private sexual conduct a crime."
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