Supreme Court set for sodomy case

By Advocate.com Editors

Originally published on Advocate.com March 26 2003 1:00 AM ET

The U.S. Supreme Court will hear arguments in Lawrence v. Texas, a challenge to Texas's Homosexual Conduct Law, on Wednesday. The Texas law bans oral and anal sex between people of the same sex. Gay rights activists regard Wednesday's arguments as one of the most important legal challenges in decades: In 1986 the high court upheld a now-defunct sodomy law in Georgia. To the Texas government and its allies, the case is about the right of states to promote the moral standards of
their communities. "It's one more battle, one more step," said Annise Parker, the only openly gay member of the Houston city council. "I think there will be a huge celebration if we win it."

The case involves John Lawrence and Tyron Garner, who were engaging in consensual anal sex when police--summoned by a neighbor who called in a bogus report of an armed intruder--burst into Lawrence's apartment more than four years ago. The pair were jailed overnight and charged with breaking the state's sodomy law. "These are people who were arrested in their bedroom," said Patricia Logue, an attorney with the Lambda Legal Defense and Education Fund, which has been handling the case. "They never chose to have that invasion of privacy. This is something they believe in, of course, but it's not a battle they chose." Logue and the men's other attorneys contend that the Texas law is unconstitutional for two reasons: It authorizes impermissible intrusion into citizens' private lives and violates the Equal Protection Clause by criminalizing certain behavior only for same-sex couples, not for
heterosexual couples.

But William Delmore III, an assistant district attorney in Texas's Harris County, said the high court should leave it to Texas lawmakers and other state legislatures to tackle the issue. "We feel pretty comfortable that while legislatures are free to repeal statutes of this kind--and that's a completely appropriate exercise of democracy--legislatures should remain free to act on principles of morality and retain statutes that are intended for public morality," Delmore said. He contends that the Texas sodomy law doesn't target gays and lesbians the way segregation laws targeted minorities before the high court intervened in 1954 to strike down the "separate but equal" precedent. "As long as we continue to believe that gambling, prostitution, and private drug use should remain subject to governmental regulation and prohibition, I think we're still considering morality an appropriate basis for governmental action," he said.

As recently as 1960, every state had a sodomy law. In 37 states the statutes have been repealed by lawmakers or blocked by state courts. Of the 13 states with sodomy laws, four--Texas, Kansas, Oklahoma, and Missouri--prohibit "deviate sexual intercourse," defined as oral and anal sex, between same-sex couples only. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia.

Various groups have filed briefs with the high court either supporting or opposing the Texas law. Supporters include several states with sodomy laws on the books as well as conservative groups, including the American Center for Law and Justice, which is affiliated with Pat Robertson; Focus on the Family; and the Family Research Council. "For homosexual activists, this case is their Supreme Court Super Bowl--the next step in their pursuit of same-sex marriage," said Jan LaRue of Concerned Women for America, which joined those filing briefs supporting the Texas law.

Opponents include the American Bar Association, historians, the NOW Legal Defense and Education Fund, and libertarian organizations such as the Cato Institute and the Institute of Justice. A brief filed by the Human Rights Campaign and other gay rights groups made reference to Mark Bingham, a gay man believed to have been among passengers who fought terrorists aboard United Flight 93 before it crashed in a Pennsylvania field on September 11, 2001. "To his country, Mark Bingham is a hero; in Texas, he is a criminal," the brief read.