June 27, 2008

LETTERS From CAMP Rehoboth

PAST Out

The U.S. Supreme Court’s 2003 Lawrence v. Texas ruling not only overturned state sodomy laws, but also provided a foundation for further advancement of GLBT civil rights.

The first American laws addressing “crimes against nature” date from the 1600s; by 1960, all states had sodomy laws, typically covering both homosexual and heterosexual anal (and sometimes oral) sex. Illinois was the first to repeal its law, in 1962, and about half the states did so in the 1970s; but this trend came to a halt in the 1980s.

In June 1986, the Supreme Court upheld Georgia’s sodomy law in its Bowers v. Hardwick ruling. In that case, an Atlanta police officer entered Michael Bowers’ home to serve a minor warrant and caught him having oral sex with another man. Though a local district attorney dropped the charges, Hardwick challenged the law. Writing for the court’s 5-4 majority, Justice Byron White opined that the Constitution does not provide “a fundamental right for homosexuals to engage in sodomy.”

The Bowers decision outraged the GLBT community and spurred renewed activism. Despite the ruling, several more states repealed their sodomy statutes over the next decade and a half (including Georgia in 1998), but laws in the remaining 13 statesmostly in the Southremained stubbornly in place.

The plaintiffs in Lawrence v. Texas were unlikely gay-rights poster boys. John Geddes Lawrence, a white medical technologist, then age 55, and Tyron Garner, an unemployed black man 24 years his junior, were not a steady couple, and neither had previously been involved in GLBT activism.

On the night of September 17, 1998, the Harris County sheriff’s department received a report of a man with a gun in Lawrence’s Houston apartment. The call came from Robert Eubanks, who apparently was Garner’s current boyfriend and Lawrence’s ex-lover. Four deputies arrived at the apartment with guns drawn; two claimed they saw Lawrence and Garner having anal sex. The men were arrested, convicted of “deviate sexual intercourse” (a misdemeanor equivalent to a traffic violation), and held in jail overnight.

Local gay activist and bartender Lane Lewis heard about the case from a bar patron who was a closeted member of the county judicial staff. Lewis persuaded Lawrence and Garner to challenge the law and secured an attorney, Mitchell Katine, who requested assistance from the Lambda Legal Defense and Education Fund, a national GLBT legal advocacy group.

Lawrence and Garner pleaded not guilty (later changed to no contest) and were fined $125. Their lawyers appealed, arguing that the sodomy law violated their rights to liberty and privacy, as well as to equal protection, since Texas was one of the few states with a law that applied only to homosexuals (heterosexual sodomy having been decriminalized there in 1973). The state countered that moral disapproval was a legitimate reason to prohibit gay sex. In March 2000, the Texas Court of Appeals upheld the law by a 7-2 margin, citing the Bowers precedent.

Lambda Legal appealed to the U.S. Supreme Court, and the case was argued in March 2003. Throughout the course of the trials, attorneys shielded Lawrence and Garner from publicity; the two men never acknowledged having sex with one another, and they were never called to testify.

On June 26, 2003, the Supreme Court struck down the Texas sodomy law by a 6-3 margin, ruling that it violated the 14th Amendment’s due process right to liberty. In his majority opinion, Justice Anthony Kennedy wrote that “the state cannot demean their [the plaintiffs’] existence or control their destiny by making their private sexual conduct a crime.” Justice Sandra Day O’Connor, part of the Bowers majority in 1986, did not agree with the reversal of the older ruling, but held that the Texas law should be overturned on equality grounds since it applied only to homosexuals.

Writing for the dissenting minority, Justice Antonin Scalia opined that the court had “taken sides in the culture war.” He further suggested that the ruling would invalidate all sex laws that were based on moral disapproval. Justice Clarence Thomas also dissented, saying he could find no right to privacy in the Constitution, but called the Texas law “uncommonly silly.”

Despite conservative fears of a slippery slope to moral anarchy, the Lawrence decision did not invalidate laws concerning public, underage, nonconsensual, or commercial sex, and Justice Kennedy was careful not to include government recognition of same-sex marriage in his opinion. But the ruling did fundamentally affect the legal status of GLBT people, removing the rationale that they do not deserve liberty or equality because they are presumed to be law-breakers. Commenting on the verdict, Lambda Legal’s Ruth Harlow said, “This is a giant leap forward to a day where we are no longer branded as criminals.”

Indeed, Lawrence v. Texas has been cited as precedent in several key subsequent GLBT civil rights cases, including the Massachusetts Supreme Court’s landmark same-sex marriage ruling in November 2003, the California Supreme Court’s May 2008 same-sex marriage decision, and a Ninth Circuit Court request to re-evaluate the “don’t ask, don’t tell” military discrimination policy.

Liz Highleyman is a freelance writer and editor who has written widely on health, sexuality, and politics. She can be reached at [email protected].

For further reading:

Carpenter, Dale. 2004. “The Unknown Past of Lawrence v. Texas.” Michigan Law Review (June 1).

CNN.com. Supreme Court strikes down Texas sodomy law. Nov. 18, 2003 (cnn.com/2003/LAW/06/26/scotus.sodomy).

Murdoch, Joyce, and Deb Price. 2001. Courting Justice: Gay Men and Lesbians v. the Supreme Court (Basic Books).

LETTERS From CAMP Rehoboth, Vol. 18, No. 08 June 27, 2008