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Texas’ sodomy law was originally enacted in 1860, but was revised in 1973 to exclude heterosexuals.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