Top Court to Address Sodomy
Case of gay Texans, fined for having sex, could affect laws in 13 states
San Francisco
Chronicle, December 3, 2002
901 Mission St., San Francisco, CA 94103
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Wyatt Buchanan, Chronicle Staff Writer
The U.S. Supreme Court agreed Monday to hear arguments in a case that could
strike down anti-sodomy laws in 13 states, revisiting an issue the court last
considered in 1986, when it said such laws were constitutional.
The court will hear an appeal from two Texas men who were fined for
violating that state’s law against consensual sodomy in 1998. Their lawyers
are asking the court to strike down the law as an invasion of privacy and
discriminatory toward gays and lesbians.
"The Texas law runs afoul of two very basic concepts," said Ruth
Harlow, legal director of the Lambda Legal Defense and Education Fund, a gay
rights organization with headquarters in New York.
"One is our government is supposed to treat us as equal," Harlow
said. "And also, the government does not belong in consenting adults’
bedrooms."
Texas officials point to the Supreme Court’s 1986 decision upholding a
Georgia law against consensual sodomy. In that case, the court ruled that
people do not have a constitutional right to privacy when engaging in
homosexual sex; Texas prosecutors say their law conforms to the court’s
decision.
In Texas, it is illegal for people of the same sex to engage in oral or
anal sex, but legal for heterosexuals.
"We believe the legislature could rationally distinguish between
people of the same sex engaging in (sexual) conduct and two people of the
opposite sex engaging in the same conduct," said William Delmore III, an
assistant district attorney in Texas.
Attorneys for the men convicted of sodomy also want the court to overturn
its 1986 decision, Bowers vs. Hardwick. That case was based on privacy
issues, not discrimination based on sexual orientation, Harlow said.
The current case stems from an incident that happened in Houston in 1986. A
Harris County sheriff’s deputy responding to a false report of a burglary at
John Geddes Lawrence’s apartment found Lawrence and Tyron Garner having sex.
They were arrested and held for 24 hours and eventually pleaded no contest
to breaking the anti-sodomy law. That crime is a Class C misdemeanor in Texas,
the same class as traffic violations, and is punishable by a fine of as much
as $500. The men were each fined $200.
The men appealed their convictions to a Texas appeals court, where a three-
member panel threw out those convictions. The full court later reinstated
them.
Nine states have anti-sodomy laws that apply to everyone: Alabama, Florida,
Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and
Virginia. Four states ban sodomy only for gays and lesbians: Kansas, Missouri,
Oklahoma and Texas.
Several states did away with their universal anti-sodomy laws in recent
years, including Georgia, but some replaced them with bans that apply only to
gays and lesbians, according to Lambda’s petition to the court.
In Texas, the anti-sodomy law is almost never enforced. It usually comes up
when two people are having sex in public, and in those cases, prosecutors tend
to file the more serious charge of public lewdness, Delmore said.
But this case proves the anti-sodomy law can be enforced, the men’s
lawyers argue.
Sodomy convictions often are used against gays and lesbians in other facets
of daily life, said Jason Riggs, communications director for the Lesbian Gay
Bisexual Transgender Center in San Francisco.
Alabama’s legislature used the law in 1992 as rationale for stopping the
formation of gay student groups at state colleges, and a man in Mississippi
was denied custody rights because he was gay and was presumably violating that
state’s anti-sodomy statute, Riggs said.
"It’s the blanket excuse government uses to deny gay and lesbian
people their standing as equal citizens," Riggs said.
But some argue that such disparity is justified because there is a greater
public health risk for people who engage in same-sex sodomy.
States have the right to regulate conduct that could result in disease and
death, the United States Justice Foundation, based in Escondido (San Diego
County), argued in the Texas case.
That foundation filed a friend-of-the-court brief on behalf of the Pro
Family Law Center in opposition to the court hearing the case.
The parties will present their arguments to the Supreme Court in late March
or early April.
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