Changing History
The Supreme Court’s decision in Lawrence v. Texas
took many people by surprise—but those who had been fighting antigay sodomy
laws nationwide knew the landmark ruling was years in the making
The
Advocate, January 20, 2004
By Chad Graham
The landmark U.S. Supreme Court ruling in Lawrence
v. Texas sent shock waves around the country and will undoubtedly stand as
one of the most important civil rights victories in history. But the case
almost never happened.
John Lawrence and Tyron Garner—who were arrested in
September 1998 after officers found them having sex in Lawrence’s Houston
apartment—didn’t originally plan to take legal action, says Mitchell
Katine, the openly gay Houston lawyer who first represented the men.
“John and Tyron were handcuffed and taken down a flight
of stairs and put into the police car in a way that they felt was very rough
and got them very angry,” he says. “Had they not been handled that way,
they tell me, they would have never called a lawyer.”
Police entered Lawrence’s apartment on a false report
to the police of an armed intruder. “These are not guys who’ve been in
politics,” Katine says. “They didn’t know what was going on. This could
have been a little $200 ticket.”
The men spent more than a day in jail, paid their fine,
then had a friend call Katine to see if he’d represent them. “In my 17
years practicing law, representing gay and lesbian people, I had never heard
of anybody who’d been arrested and charged with this crime,” he says.
Texas’s sodomy law—passed in 1860—was amended in 1974 to remove
heterosexual anal and oral sex, making Texas one of four states with sodomy
laws applying only to gay people.
Lawrence became a five-year legal battle, ending up as
one of the 2% to 3% of cases appealed to the U.S. Supreme Court that are heard
by the justices. Even more rare, the decision reversed a previous Supreme
Court ruling—1986’s Bowers v. Hardwick. Legal experts say Lawrence—a
truly watershed victory—was won through stealthy legal maneuvers, changing
social views, and a little luck.
Back to 1998. Katine immediately called lawyers at the
Lambda Legal Defense and Education Fund in New York City, who began to plan
strategy for the case. Legal challenges to other states’ sodomy laws during
the 1990s had methodically set the stage for a showdown in the Supreme Court.
The lawyers soon realized Lawrence could be the case they were waiting for.
“The case could not have come at a better time: when we
were already in the midst of a strategic challenge to sodomy laws
nationwide,” says Suzanne Goldberg, an out lesbian who was a lead Lambda
attorney on Lawrence before leaving for Rutgers University’s law school in
2000, where she is now an associate professor. “The case offered a perfect
example of how the sodomy laws empowered the states to invade the privacy of a
person’s home to prosecute for consensual sex.”
Lambda’s lawyers deemed Lawrence a “clean case,”
meaning the two men had not engaged in other illegal activity. They were
consensual adults and were not having sex in a public place. There were no
drug or alcohol charges. Neither of the men resisted arrest. They had simply
violated the Texas sodomy law.
Something else caught the lawyers’ attention. The Texas
district attorney who prosecuted the case could have dropped the charges
against Lawrence and Garner, making it impossible for Lambda’s lawyers to
challenge the sodomy law, but he didn’t. In addition, the Texas state’s
attorney’s office didn’t intervene, indicating their side of the case
might be constitutionally weak.
Lambda immediately had to decide if they wanted to
directly challenge the Supreme Court’s ruling in the 1986 Bowers case—a
ruling that infuriated gay rights supporters. “In the Hardwick case, the
court ruled 5 to 4 that gay people could be shut out of the right to privacy,
because the court said there is no connection between gays on the one hand and
family, parenting, and marriage on the other,” says Evan Wolfson, the openly
gay director of Freedom to Marry, a New York City–based group working for
full gay marriage rights.
But nearly 17 years later, gay people had made
significant civil rights strides in legal cases and in the court of public
opinion. “Our movement and the marriage debate had shown the country and, as
it turned out, the court that gay people have every connection with family,
parenting, and yes, marriage,” Wolfson says. “The main thing that happened
in the 17 years was claiming the vocabulary of love, family, commitment, and
equality. That created the space for the court to admit it was wrong in
1986.”
Lambda decided the best course of action was to frame
arguments that directly challenged Bowers as the Lawrence case progressed
through the Texas courts. The issues they raised—namely, that privacy, under
the Constitution’s 14th Amendment, is a right for gay and straight people
alike—could force the Supreme Court to revisit Bowers. Many legal experts
told Lambda that if the Supreme Court decided to take the case, “their
decision would be to reverse Bowers,” says Pat Logue, interim legal director
of Lambda.
In March 2001, a Houston appellate court upheld the
“homosexual conduct” law. Lambda then appealed to the highest court in the
state, the Texas Court of Criminal Appeals, which refused to hear the case, so
it asked the opinion of the U.S. Supreme Court. At that point, many people
started working on the case full-time, Logue says. “It is an incredibly
arduous process to have the responsibility of a case like this and do it
well.”
Nearly 130 groups—from the Human Rights Campaign to the
Alliance of Baptists—filed friend of the court briefs. On March 26, 2003,
each side had 30 minutes to present their case to the nine justices. In the
decorum-heavy chambers of velvet curtains, lawyers on both sides were peppered
with question after question by the justices. Lambda’s argument was handled
by Paul M. Smith, an openly gay lawyer of the elite Washington, D.C., firm
Jenner & Block; he had extensive civil liberties case experience, had
clerked on the U.S. Supreme Court, and had argued before it nine times. John
Lawrence was also sitting in a prominent location in the court throughout the
proceedings. (Garner was unable to attend.)
“We wanted the court to understand the devastating
impact of these laws—that was the hearts and minds of the case,” Logue
says. “We also wanted to give them an incredibly deep presentation [showing]
why the law should have always been in our favor.”
Three months later, the court delivered its opinion,
striking down the Bowers case and invalidating sodomy laws across the country.
“When sexuality finds overt expression in intimate conduct with another
person, the conduct can be but one element in a personal bond that is more
enduring,” wrote Justice Anthony Kennedy in the majority opinion. “The
liberty protected by the Constitution allows homosexual persons the right to
make this choice.”
When the court’s ruling came down, Logue wept as the
entire Lambda office in New York City exploded in excitement. Katine was
sitting at his desk in Houston surrounded by news cameras that were rolling to
tape his reaction: “I first heard of the decision from my mother calling me
from Ft. Lauderdale, Fla., saying ‘You won, son, you won.’ “
In the months since the victory, supporters of gay
marriage have started knocking down other legal barriers, especially in
Massachusetts, where the state’s highest court ruled in November that it is
unconstitutional to bar gay couples from marriage.
“I hate to say it, but Justice Scalia said it best in
the court’s dissenting opinion: Lawrence leaves the restriction of marriage
to opposite-sex couples on very shaky grounds,” Wolfson says.
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