Thank you for sharing!

Your article was successfully shared with the contacts you provided.
John Geddes Lawrence and Tyron Garner have been branded criminals for the past five years. They’re hoping that won’t be true after the end of this Supreme Court term. Attorneys for the two Houston men convicted of violating the Texas “homosexual conduct” law will argue before the Supreme Court on March 26 that their clients’ constitutional rights were trampled when the police arrested them while they had sex in the privacy of their home. But a Harris County prosecutor will argue that Texas citizens, acting through their Legislature, have a right to ban conduct they deem immoral. Lawrence v. Texas, touted as the most important case for gay rights in a generation, involves a constitutional challenge to a state sodomy law — a matter last considered by the Supreme Court 17 years ago in Bowers v. Hardwick. In a 5-4 decision, the high court held that a Georgia statute criminalizing consensual sodomy was constitutional. Rejecting an argument that the Georgia law, when applied to same-sex conduct, violated a constitutional right of privacy, the Bowers majority held that gay couples have no “fundamental right” to engage in sodomy. Lawrence and Garner — arrested on sodomy charges in 1998 and convicted of violating Section 21.06 of the Texas Penal Code — want the Supreme Court to overturn its privacy holding in Bowers, which they argue has been undercut by legal and social developments since that decision came down in 1986. Lawrence and Garner are asking the Court to hold that the Texas law violates their liberty and privacy interests protected by the due process clause of the 14th Amendment. They’re also asking the Court to find that the law violates the 14th Amendment’s guarantee of equal protection of the laws by discriminating against gay couples without any legitimate or rational basis. “We’re pursuing this case because they were just astounded that the state of Texas could do this to them,” says Ruth Harlow, lead attorney for Lawrence and Garner and legal director for the Lambda Legal Defense and Education Fund, a gay rights group based in New York City. Harlow says Lawrence is important because it offers a chance to overturn Bowers, which she says “endorsed the idea that it might be OK to have a separate rule and a more harsh rule for gay people.” Vivian Berger, professor emerita at Columbia University Law School, sees it as a good sign that the Supreme Court asked for briefs on whether Bowers should be overruled. “ Bowers has been an embarrassment,” says Berger, who has served as a general counsel and board member for the American Civil Liberties Union, which represents gays and lesbians in challenges to sodomy statutes. Others see the equal protection argument as more promising. “The Supreme Court would have to reverse itself to decide on due process grounds,” says Dale Carpenter, an associate professor at the University of Minnesota Law School and an attorney for the Republican Unity Coalition, which filed an amicus brief supporting Lawrence and Garner. Two members of the Court, Chief Justice William Rehnquist and Justice Sandra Day O’Connor, were in the Bowers majority. Another member, Justice John Paul Stevens, joined the dissent in Bowers. Carpenter says that ruling in favor of Lawrence and Garner also would be perceived as a “less activist decision” because it would invalidate the laws in fewer states. He says 13 states have sodomy laws that affect everyone, while only four states — Kansas, Missouri, Oklahoma and Texas — have laws outlawing sodomy when the participants are of the same sex. Lawrence and Garner began their challenge of the Texas law after they were convicted in a justice of the peace court in Houston. They appealed to Harris County Criminal Court-at-Law No. 10, seeking to quash the charge on the ground that the law is unconstitutional. After the court denied their motion to quash, they pleaded no contest to the misdemeanor offense and appealed to the 14th Court of Appeals in Houston. By a 2-1 vote in 2000, a 14th Court panel reversed the men’s convictions under the Texas Equal Rights Amendment and held that Section 21.06 discriminates on the basis of sex. But the appeals court, sitting en banc at a rehearing, reinstated the men’s convictions by a 7-2 vote in 2001, and the Court of Criminal Appeals, Texas’ highest criminal court, denied Lawrence and Garner’s petition for review without a written opinion last year. If the U.S. Supreme Court reverses the Texas court, it will be denying the right of voters to act on such an issue through their Legislature, says Harris County District Attorney Charles Rosenthal Jr., who will argue the state’s case before the high court. “If they [Lawrence and Garner] want the law changed, what they need to do is go back to the Legislature,” Rosenthal says. Bill Delmore, chief of the legal services bureau in the Harris County District Attorney’s Office, says Lawrence represents the largest expansion of fundamental liberty interests that the Supreme Court ever has been asked to recognize. In the past, the 14th Amendment has been construed to protect certain decisions that Americans make with regard to marriage, procreation, and child rearing, Delmore says. “Those are the types of decisions that the Supreme Court has said government does not have a right to interfere with,” he adds. Delmore says that if the Court expands the protected zone of privacy to sexual conduct that occurs outside the marriage contract, it would “doom” any prospect of upholding fornication or adultery statutes, which are on the books in some states. It also would “raise serious questions” as to whether a state can regulate private acts of prostitution and consensual incest, he adds. Texas’ “homosexual conduct” law wasn’t enacted until 1973, when the Legislature repealed all of its then-existing laws that criminalized private sexual conduct between consenting adults, but singled out same-sex couples for criminal sanctions, Lawrence and Garner argue in their brief. Rosenthal contends that the law does not discriminate against homosexual couples, but proscribes homosexual conduct. Heterosexuals also can engage in homosexual conduct, he says, but it is still prohibited. Violating the Texas law cost Lawrence and Garner about $200 each in fines plus court costs. They also have criminal convictions on their records, Harlow says. A judge imposed a much harsher penalty on Matthew Limon, a Kansas teen-ager convicted under that state’s sodomy law. According to the petition for writ of certiorari filed in October 2002 with the Supreme Court in Limon v. Kansas, Limon had just turned 18 when he performed an act of consensual oral sex on a 14-year-old boy. Limon had two prior adjudications as a juvenile for sodomy offenses and was sentenced to more than 17 years in prison in 2000, the petition says. The petition, which is pending before the Supreme Court, contends that under Kansas’ so-called Romeo and Juliet law, Limon could have been sentenced to no more than 15 months for oral sex with a younger female teen-ager. The ACLU represents Limon in his petition. Matt Coles, director of the ACLU’s Lesbian and Gay Rights Project, says, “Sometimes people think that sodomy laws are essentially harmless, that nobody gets hurt by them. This case appears to be a pretty complete answer to anyone who says that.” But Harlow says the harm that sodomy laws do to same-sex couples goes far beyond the criminal context. Such laws are used as “an excuse” to discriminate against gay people, she says. For example, discrimination may surface when gays and lesbians try to adopt children. Greg Nevins, a Lambda attorney based in Atlanta, says the state of Virginia used its sodomy statute in 1999 to block Linda Kaufman, a lesbian Episcopal priest, from adopting a child from outside the state, even though she previously had adopted a foster child. Nevins says Kaufman, who was represented jointly by Lambda and Virginians for Justice, sued the state in 2001 in the Circuit Court of Arlington County. A settlement reached in Kaufman v. Virginia Department of Social Services last August ended the automatic disqualification of gays and lesbians seeking to adopt and enabled Kaufman to begin working toward an adoption, he says. Lawrence and Garner argue in their brief that all adults have a fundamental liberty and privacy interest in making their own choices about private, consensual sexual relations. They argue that this fundamental protection is rooted in three well-recognized aspects of personal liberty: intimate relationships, bodily integrity, and privacy of the home. They base their argument in part on the Supreme Court’s 1965 decision in Griswold v. Connecticut, which protects a married couple’s right to use contraceptives; the Court’s extension of that principle to unmarried people in 1972′s Eisenstadt v. Baird; and the Court’s continuing protection of a woman’s right to decide whether to have an abortion in 1992′s Planned Parenthood of Southeastern Pennsylvania v. Casey. The state argues in its brief that the record in Lawrence doesn’t establish that the petitioners would benefit from recognition of the liberty interest they assert and provides an “insufficient foundation” for a meaningful review of the issue. Rosenthal says nothing in the record proves that Lawrence and Garner are homosexuals and that their conduct was private and noncommercial. Harlow calls that argument a “last-ditch effort” to avoid having the Court hear the constitutional issues. “What the state is doing is forgetting that this is a criminal prosecution where the state started the whole thing,” she says. In their brief, Lawrence and Garner argue that the nation has steadily moved toward rejecting second-class-citizen status for gays and lesbians since Bowers was decided. They contend this is a reason why the Court should overturn Bowers. But Delmore says the fact that a few states have made the move in recent years to repeal or invalidate sodomy laws is not evidence of “a deeply rooted legal tradition.” South Texas College of Law professor Teresa Collett, when addressing Lawrence and Garner’s argument that the nation is moving toward rejecting the second-class-citizen status for gays and lesbians, says, “I certainly think a shift in political opinion is appropriate for the [Texas] Legislature to consider.” However, she agrees with Delmore that “for constitutional analysis, the standard analysis is deeply rooted in the traditions of our people.” An amicus brief that Collett wrote on behalf of the Texas Eagle Forum and two Republican women’s groups supports the state’s position in Lawrence. Lawrence and Garner also argue in their brief that the Texas law violates the equal protection clause of the 14th Amendment. They argue that how the law treats certain acts of consensual sexual behavior depends on who the participants are. They also contend that such a discriminatory law cannot satisfy even the minimal requirement that a legislative classification must be rationally related to a legitimate state purpose as required by the Supreme Court in 1996′s Romer v. Evans, a 6-3 decision that invalidated a Colorado constitutional amendment that repealed laws prohibiting discrimination on the basis of sexual orientation. Romer was decided on equal protection grounds. The state argues that Texas has a legitimate state interest in expressing legislatively its long-standing moral traditions against homosexual conduct and in discouraging its citizens from engaging in conduct perceived to be immoral. That argument is supported by the Plano-based Liberty Legal Institute, which argued in an amicus brief filed on behalf of 69 members of the Texas Legislature that Lawrence and Garner seek a new “right of privacy” in sexual behavior. “They’re seeking to create a right without bounds,” says Hiram Sasser III, a Liberty Legal staff attorney. “It’s basically the right to do as one chooses.” The Institute for Justice, a nonprofit, public interest law firm in Washington, D.C., argued in an amicus brief supporting Lawrence and Garner that the Texas statute exceeds states’ police power. “It goes too far,” Dana Berliner, an attorney for the institute, says of the law. “Our nation was founded on the idea that government is limited, that government does not have unbounded power to intrude in the lives of citizens.” This article was distributed by the American Lawyer Media News Service. Mary Alice Robbins is a senior reporter at Texas Lawyer.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.