WASHINGTON, D.C. – For the second time in the last 16 years, the U.S. Supreme Court will hear a case that could decide whether state laws can ban gay sex acts without facing infringement of the Constitution.
On Dec. 2, the court agreed to hear arguments in Lawrence and Garner vs. Texas. In that case, two Houston men were arrested and convicted of violating Texas’ anti-sodomy law in 1998 after police, investigating a neighbor’s false report of an armed intruder, entered John Lawrence’s unlocked home and discovered him engaged in anal sex with Tyron Garner.
Several states have laws on the books that ban “sodomy” – an archaic term for any consensual sex acts other than male-female vaginal intercourse. Texas’ anti-sodomy law, however, is one of only four in the nation that applies exclusively to homosexual sex acts. In addition, nine other states have anti-sodomy laws that in theory apply to heterosexuals as well as homosexuals, but in practice are only applied to gays, lesbians and bisexuals, according to gay-rights groups.
Attorneys for the Lambda Legal Defense and Education Fund are representing Lawrence and Garner. They argue that state anti-sodomy laws like Texas’ that are applied only to homosexuals violate the equal-protection and right-to-privacy provisions of the Constitution’s 14th Amendment. In their petition asking the justices to review the case, Lawrence and Garner’s attorneys said that “the direct and indirect harms imposed by this law and others like it are a glaring affront to the Constitution's guarantee of equal protection.”
The penalties for sodomy under these laws include fines and jail time, and several recent cases in states with laws criminalizing same-sex acts have in part relied on the laws to deny custody rights to gay and lesbian parents and prevent homosexuals from holding government jobs.
A three-judge panel of a state court had earlier ruled the men’s convictions to be a violation of Texas’ state constitution, but the full court later overturned that decision after state attorneys appealed. The state’s criminal appeals court denied a petition for re-hearing under the state’s constitution, causing the plaintiffs to appeal to the U.S. Supreme Court.
That court’s last ruling on anti-sodomy laws came with the Bowers vs. Hardwick case in 1986, when it ruled in a contentious 5-4 decision that a Georgia anti-sodomy law did not violate the Constitution because homosexuals had no Constitutional right to engage in consensual sexual intercourse.
As attorneys for the state of Texas argued in their motion asking the Court not to hear the case, “In light of the fact that homosexual anal sodomy was viewed as criminal behavior under state law and the common law for a period of centuries, that conduct could not conceivably have achieved the status of a ‘fundamental right’ in the brief period of sixteen years since Bowers was decided.”
However, only three justices who decided the Bowers case are still sitting, and several recent state court decisions – most recently in Arkansas – have overturned similar anti-sodomy statutes, including the very Georgia law that the Bowers case upheld.
Texas’ attorneys also argued that the state has a compelling interest in promoting “public morality” by outlawing gay sex acts. However, the plaintiffs said that was a discriminatory standard, since that would mean that certain kinds of sex acts were immoral for homosexuals but not for heterosexuals – whether married or unmarried.
The judges will hear oral arguments in the case in the spring, and may render a decision by June.
By Albert H. Lee