On December 2, 2002, the United States Supreme Court announced that it had granted certiorari in the case of Lawrence v. Texas, Supreme Court Docket No. 02-102, to determine whether Texas’ “Homosexual Conduct” law violates the Equal Protection Clause of the Fourteenth Amendment, or violates the fundamental right to sexual privacy for consenting adult homosexuals.

John Lawrence lives in Pasadena, Texas (near Houston). Mr. Lawrence’s neighbor Roger Nance made a false report to the police that a "crazy man with a gun" was in Mr. Lawrence's apartment. (Nance served two weeks in jail for making the false police report.) Harris County deputy sheriffs entered through an unlocked door and found Mr. Lawrence and Tyrone Gardner engaged in anal sex. Mr. Garner, then 31, and Mr. Lawrence, then 55, were convicted and fined $200 plus $141.25 in court costs. Worse, having been convicted for an offense involving “moral turpitude”, Lawrence and Garner would have to register as sex offenders if they move to Idaho, Louisiana, Mississippi or South Carolina. In Texas, they cannot be licensed as an athletic trainer, doctor, registered nurse, speech pathologist, interior designer, bingo operator, school bus driver or liquor salesman.

Texas’ sodomy law was originally enacted in 1860, but was revised in 1973 to exclude heterosexuals. It is therefore now known as the “Homosexual Conduct” law.

In 1986, the United States Supreme Court upheld Georgia’s anti-sodomy law in the case of Bowers v. Hardwick, 478 U.S. 186 (1986). At that time, 24 states and the District of Columbia had laws making sodomy a crime. Georgia’s state supreme court has since declared its sodomy laws unconstitutional under the Georgia state constitution. Today, only 13 states retain anti-sodomy laws. Nine states (Louisiana, Mississippi, Alabama, Florida, South Carolina, North Carolina, Virginia, Idaho and Utah) make sodomy a crime for everyone, regardless of sexual orientation. Texas and Kansas sodomy laws apply only to homosexuals, and Missouri and Oklahoma courts exclude consensual heterosexuals from enforcement. Moreover, in 1996, the Supreme Court struck down an amendment to the Colorado constitution which prohibited including sexual orientation in Colorado’s state and local laws prohibiting discrimination. See Romer v. Evans, 517 U.S. 620 (1996).

Today, the composition of the Court is currently the same as it was in Romer v. Evans, and at least four of those justices voted to grant certiorari in this case. There is therefore reason to hope that Bowers will go the way of previous famous Supreme Court mistakes like Dred Scott, Plessy v. Ferguson, and Lochner v. New York.


The Supreme Court at the time of Bowers v. Hardwick (1986) (5-4):

The anti-gay majority:

The pro-sodomy minority:

The Supreme Court at the time of Romer v. Evans (1996) (6-3):

The moderate majority:

The anti-sodomy minority:


Sources:

Frank J. Murray, “High court to rule on sodomy laws”, The Washington Times, December 2, 2002, http://www.washtimes.com/national/20021202-478107.htm

Plaintiff’s attorney’s web page (including links to Texas appeals decisions and Lambda Defense briefs): http://www.lambdalegal.org/cgi-bin/iowa/cases/record?record=93

It all started in the night of September 17th 1998, when an anonymous caller informed the Houston police that some crazed nut was waving his gun and threatening to shoot at 794 Normandy Street. The officers that hastened to the scene encountered something entirely different however; they broke down the doors and saw two men getting it on together. It appeared that the two men, John Lawrence and Tyron Garner were doing it pretty much voluntarily. According to the Sun-Sentinel the officers in a healthy and reasonable world would have backed off, apologized and gone on to track the anonymous caller down.*

Not so in Texas. Lawrence and Garner were taken to the precinct and detained there for a night. They were accused of violating the anti sodomy legislation still active in the state of Texas. Both were convicted and received fines of 200 dollars plus the costs of the proceedings. Incidentally the police also managed to track down the anonymous caller who himself was sentenced and a fine was imposed. By now the Lawrence vs. the state of Texas case has arrived at the highest echelon of American judiciary system, the Supreme Court in Washington D.C. The court decided to take the case in December of 2002 with the smallest possible majority (five against four) and the initial pleas were held at the end of March 2003.

The 143-year-old Texas law prohibiting sodomy has been challenged numerous times but has survived all attempts till now. In 1969 a homosexual male, Alvin Buchanan, was arrested for having sex in a public toilet. According to the anti sodomy legislation which prohibits oral and anal contacts between partners irrespective of their gender, Buchanan could have received a maximum of 15 years in prison. Buchanan took the case to the federal authorities and attempted to repeal the law with a personal privacy defense. Eventually he was acquitted on a technicality.

The Texas house of representatives in Austin smelled the impending danger and they decided to ‘modernize’ the law to prevent it from being repealed. They now allowed heterosexual contacts involving the ‘other’ orifices (this is still formally illegal in thirteen states). Homosexuals caught in the act did not face a prison sentence any more but merely a fine. In the 90s the law criminalizing homosexual contacts was attacked by a lesbian attempting to become a police officer. Her application was turned down since as a lesbian she was formally an offender. Needless to say her efforts failed.

Lawrence’s attorney pleaded before the Supreme Court that the anti sodomy legislature in Texas and other states violates citizens’ civil liberties. This he claimed was even worse than the fact that the law also discriminates between people of different sexual orientations. The constitutionally guaranteed liberties were put in place to protect people from an intrusion into their private lives by the government. However as recently as in 1986 the Supreme Court ruled that the anti sodomy legislature in Georgia, which applies to both straight and gay couples, does not violate the constitutional right to privacy.

Another interesting aspect of this case is that Lawrence and Garner are not only supported by a variety of civil liberties and human rights organizations, they are also supported by a number of libertarian organizations. One of the underlying principles of libertarians is that individuals must be allowed freedom to make their own choices whether they lay in the field of economics or sexual preference. “Libertarians argue that the government has no business in the bedroom or in the boardroom”, a statement by Roger Pilon of the Cato Institute in the International Herald Tribune.

Dana Berliner, associated with the Institute for Justice, another important libertarian institution, argues against the prevalent opinion that Lawrence vs. Texas is about homosexuality. Her institution fights against regulation of small business by the government. “If we allow the government to mingle in our sexual behaviour, it becomes hard to imagine in what fields the government will not act as a regulator”, says Berliner.

After all there is no larger invasion that can be perpetrated by Big Brother than that of regulating sexual contacts between two (or more) consenting adults. That’s why this case is important to the civil liberties of not only gays but of all law abiding citizens. Just like Larry Flynt said: “If the freedom of speech of scumbags like me is not guaranteed, neither is yours”.** A ruling is expected in June.


* - This w/u is intended to illustrate the extent to which governments influence our lives. I will always stand up and speak out for what I believe are fundamental human rights and liberties. That is totally unrelated to whether or not I support or endorse a particular way of living.
** - I do not equate homosexuals to scumbags. The statement is only intended as an illustration.


Sources:
International Herald Tribune (various issues)
Elsevier vol 18, May 3 2003 (dutch newsmagazine)

U.S. Supreme Court

LAWRENCE et al.
v.
TEXAS
No. 02-102.*

CERTIORARI TO THE COURT OF APPEALS of Texas, fourteenth district
Argued March 26, 2003--Decided June 26, 2003


See Also: Sex-related Court Cases, Sex Laws in the Fifty States, Landmark Case
* Click here to understand what those numbers mean
Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on that point.

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18.

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6.

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 6-12.

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851--which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education--and Romer v. Evans, 517 U. S. 620, 624--which struck down class-based legislation directed at homosexuals--cast Bowers' holding into even more doubt.
The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12-17.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 17-18.

41 S. W. 3d 349, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.

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