8 JUNE 25, 2004
www.houstonvoice.com HOUSTON VOICE
news cover story
Sodomy ruling let gays 'dream bigger'
S000MY RULING, continued from Page 1
Sodomy laws were rarely enforced in the
years after the 1986 ruling — a Georgia case
known as Bowers v. Hardwick — but as long
as the Supreme Court classified gay sex as
criminal behavior, gay men and lesbians continued to be denied the full rights of citizenship, said Greg Nevins. a senior staff attorney for the Lambda Defense & Education
Fund, a gay legal group.
"When you can be criminalized, it's
hard to make an argument for other
rights," he said.
But on June 26,2003, the Supreme Court
reversed itself by striking down all
remaining sodomy laws in its ruling in
Lawrence v. Texas, a decision that signaled
"a sea change in the prevailing attitude
concerning our rights," Nevins said.
The 6-3 ruling allowed Wolfson to finally remove his pink triangle pin, and the
majority opinion used strong words to
describe the mistake the court made 17
"Bowers was not correct when it was
decided, and it is not correct today,"
Justice Anthony Kennedy wrote for the 6-3
majority in Lawrence. "It ought not
remain binding precedent.
"Its continuance as precedent demeans
the lives of homosexual persons,"
Pride and prejudice
Adding to the emotional power of the
Lawrence ruling was the fact that it was
announced just days before many cities
across the country celebrated Gay Pride
"The timing of it was really special,"
said Donna Narducci, executive director of
the Atlanta FVide Committee.
Wolfson said Lawrence was a momentous
win, but gay men and lesbians must not
assume the fight for equal rights is over.
"Other landmark rulings remind us
that court decisions are not self-enacting,"
After the Lawrence decision was
announced, Wolfson said he replaced his
pink triangle with a symbol of gay citizens' next big legal fight: a Freedom to
Sodomy law challenged
When John Lawrence was arrested in
his Houston apartment in 1998 after being
caught engaged in consensual sex with
Tyron Garner, he couldn't believe what
was happening, Lawrence told Southern
Voice in an interview this week.
Lawrence said he didn't know sodomy
was still a crime in Texas, and thought
enforcement of such laws ended in the 1960s.
Harris County sheriff's deputies
entered Lawrence's home on Sept. 17,1998,
responding to a false report that a man in
the apartment had a gun and was disruptive. Upon entering the house and Finding
Garner and Lawrence having sex, the
deputies arrested both men for violating
the state sodomy law, which prohibited
Tyrone Gamer (left) and John Lawrence arrive at the courthouse with one of their attorneys, Mitchell Katine
(right), to face charges of homosexual conduct under Texas' sodomy law on Nov. 20,1998. More than four
years later, the U.S. Supreme Court overturned their conviction and ruled as unconstitutional state sodomy
laws. (AP Photo/David J. Phillip)
"deviate sexual intercourse with another
individual of the same sex."
Oral and anal sex were both classified
as "deviant sexual intercourse" by the
After being arrested, convicted of
sodomy and forced to pay $200 fines,
Garner and Lawrence secured legal help
from gay attorneys who were eager to challenge the state's sodomy law and were
waiting on the right case to do so.
Mitchell Katine, a gay Houston attorney
who represented Lawrence and Garner
along with Lambda Legal, said this week that
the case represented a "perfect storm" with
which to challenge the sodomy law, since that
was the only crime the defendants were
accused of committing.
"It was one charge, which made the case
very clear and less likely to be sidetracked
by some other factor," Katine said. "That,
and the underlying facts of the case were
so compelling to anyone who looked at
them is what made this the right case."
But even "the right case" to challenge
the state's sodomy law faced a difficult battle in the Texas courts, and Katine said he
was not confident they would win, a feeling he shared with Lawrence and Garner.
Garner and Lawrence were found guilty
of committing sodomy by a Harris County
judge on Dec. 22,1998, a ruling that was overturned by a three-judge panel of the Texas
Court of Appeals on June 5,2000.
But almost a year later, on March 15,
2001, the full court of appeals reversed the
three-judge panel's decision — upholding
Garner and Lawrence's convictions and
the state's sodomy law.
After the Texas Court of Criminal
Appeals — the state's highest court on
criminal matters — refused to hear an
appeal on behalf of the two men in April
2002, Katine and lawyers with Lambda
Legal filed an appeal with the U.S.
Road to 'greater freedom7
The first true high point was when we
got word from the Supreme Court that they
were ordering the state of Texas to file a
reply to our petition," Katine remembers.
"That's when I thought they might hear
our case, that's when I got excited."
In December 2002 the Supreme Court
agreed to hear the case, and attorneys
from the state of Texas and Lambda Legal
gave oral arguments on March 26,2003.
The Texas law was unconstitutional
and should be overturned for two primary
reasons, Paul Smith, a gay attorney affiliated with Lambda Legal, told the high
court. The statute violated gay men and
lesbians' due process and right to privacy,
and it violated the equal protection clause
of the 14th amendment because it singled
out sodomy committed by same-sex couples and not heterosexual couples.
Charles Rosenthal, the Harris County
district attorney, argued that his state has
an interest in upholding "moral standards
for its people," and that "marriage and
family" and promoting the birth of children were all issues that justified the
state's interest in keeping homosexual
"During the oral arguments the justices
clearly indicated that they thought the law
was ridiculous," Katine said.
Three months after oral arguments, the
justices announced they sided with
Lawrence and Garner in a decision whose
wording Katine described as "remarkable."
"When homosexual conduct is made
criminal by the law of the state, that declaration in and of itself is an invitation
to subject homosexual persons to discrimination both in the public and in the
private spheres," the majority opinion
said. "The offense, to be sure, is but a ...
misdemeanor, a minor offense in the
Texas legal system.
"Still, it remains a criminal offense
with all that imports for the dignity of the
persons charged," the court said. The
majority in Lawrence focused much of its
opinion on the right of every American to
have "autonomy of self that includes freedom of thought, belief, expression, and
certain intimate conduct."
"The petitioners are entitled to respect
for their private lives," wrote Kennedy, who
was joined by Justices Stephen Breyer, Ruth
Bader Ginsburg, John Paul Stevens and
David Souter, with Sandra Day O'Connor
concurring. "The state cannot demean their
existence or control their destiny by making
private sexual conduct a crime."
The Lawrence decision thrilled gay
attorneys and activists, energizing Pride
festivals around the country last year.
But the ruling also energized opponents
of gay rights.
Instead of expanding freedom, the
majority in Lawrence created a right to
engage in sodomy essentially out of thin
air, said Rena Lindevaldsen, senior litigation counsel for the conservative Liberty
Counsel, a Florida-based conservative
counterpoint to Lambda Legal.
But Lindevaldsen downplayed the ruling's impact on other gay rights cases.
"I think it was more of a moral loss for
the country than a legal loss,"
Fueling the marriage fight
Both supporters and opponents of the
Lawrence ruling cite the case as a factor
that helped fuel the year-long, ongoing
national discussion on gay rights, particularly the right to marry.
Backlash over the sodomy ruling
helped build support for the Federal
Marriage Amendment, a proposal to
change the Constitution to ban any legal
recognition for gay couples that could see a
vote in the U.S. Senate next month.
Introduced on May 23, 2003, in the U.S.
House of Representatives, the FMA had
only 25 co-sponsors during its first month,
but gained 50 more in the month following
the Supreme Court's sodomy ruling.
When the Massachusetts Supreme
Judicial Court announced in November
that the state's ban on same-sex marriages
was unconstitutional, Lawrence was the
first legal case referenced by the justices.
"Even if Lawrence doesn't directly
stand for marriage, it talks about people's
autonomy in making choices."
Nevins and Wolfson said the
Massachusetts court relied far more on the
state constitution than on the recent
sodomy case, meaning a pro-gay marriage
ruling likely would have occurred even if
Lawrence was not a reality
But Wolfson said the argument for gay
marriage is made stronger by the
"The language and logic of Lawrence
clearly gives us wind in our sails in ending
marriage inequality," Wolfson said.
Katine agreed. "I believe Lawrence will
be the foundation for the ultimate
Supreme Court marriage case," he said.
As people wait to see how broad an impact
I^iwrence has in the legal arena, the ACLU's
Cooper said the decision "created a whole
new world" for gays and lesbians, who are
now "dreaming much bigger."