U.S. Supreme Court Hears Lambda Legal’s Case Challenging Texas’s ‘Homosexual Conduct? Law

Last edited: January 24, 2005

U.S. Supreme Court Hears Lambda Legal’s Case Challenging Texas’s ‘Homosexual Conduct? Law

Lambda Legal Defense and Education Fund , March 26, 2003
Contact:
At the Supreme Court in Washington:
Eric Ferrero: 888/987-1984 (pgr)
Lisa Hardaway: 888/987-1971(pgr)
In New York:
Fred Shank: 212/809-8585, x267

Washington—The U.S. Supreme Court today hears oral arguments in Lambda Legal’s case challenging the constitutionality of Texas’s “Homosexual Conduct? law, which criminalizes oral and anal sex by consenting gay couples and is used widely to justify discrimination against lesbians and gay men.

“This is the most important gay rights case in a generation,? said Ruth Harlow, Legal Director at Lambda Legal and lead counsel on the case. “We’re hopeful that the Supreme Court sees that laws like Texas’s violate fundamental American freedoms. These laws invade the most private area of adult life and set up two different rules for the same behavior—one for gay people and one for straight people.?

Lambda Legal represents John Lawrence and Tyron Garner, who were arrested in Lawrence’s Houston home and jailed overnight after officers responding to a false report from an acquaintance found the men engaged in private, consensual sex. Once convicted, they were forced to pay fines and are now considered sex offenders in several states.

In defending the sodomy law, the state of Texas argues that its legislature is responsible for passing or repealing laws and that the Supreme Court should not step in. “While the legislature does have a great deal of discretion over the state’s laws, there are some important limitations—and they’re spelled out in our Constitution,? Harlow said. “Our system gives the federal courts the responsibility to determine whether laws are constitutional.?

The Supreme Court agreed to hear two constitutional issues in Lambda Legal’s case—whether the Texas law violates the Constitution’s right to privacy, and also whether it violates the Constitution’s guarantee that all Americans will be treated equally under the law. In 1986, the Supreme Court ruled that Georgia’s law banning consensual sodomy did not violate privacy rights. In bringing the Texas case, Lambda Legal asked the justices to reconsider that ruling, which Harlow said has done “tremendous harm? to gay Americans for years.

“Since 1986, the nation has steadily moved away from these laws,? Harlow said. “Society’s knowledge about gay people, gay families and gay lives has increased exponentially since 1986, and we believe a more informed view of constitutional protections for gay people can now prevail.?

Since the U.S. Supreme Court decision upholding Georgia’s sodomy law in 1986, Lambda Legal has helped strike down similar laws in numerous state courts, including Montana, Tennessee and Georgia itself. Last summer, Lambda Legal successfully struck down Arkansas? law banning sex between people of the same sex when the state Supreme Court ruled in favor of seven Lambda Legal clients who said the law jeopardized their employment, their legal relationships with their children and their standing as equal citizens.

In addition to Texas, three states—Kansas, Missouri and Oklahoma—still have consensual sodomy laws that apply only to gay people. Nine states—Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Virginia and Utah—still have consensual sodomy laws that apply to straight and gay adults, but are invoked only against lesbians and gay men in everyday life. These laws typically ban oral and anal sex with penalties that range from fines to 10 years in prison.

A diverse array of some of the nation’s most respected organizations—including conservative groups, civil rights organizations, religious groups, historians and health professionals—filed friend-of-the-court briefs on Lambda Legal’s behalf, also asking the U.S. Supreme Court to declare the Texas law unconstitutional.

“Some of the most diverse and respected voices in this country have lined up to tell the Supreme Court that these laws are contrary to American values,? Harlow said. “Conservative groups have come forward to say that the government has no business in people’s bedrooms. Mainstream civil rights organizations have spoken out about the inequalities and blatant discrimination these laws create. And our nation’s leading health advocates have said unequivocally that these laws don’t serve any public interest.?

A decision in the case is expected in June. Lambda Legal attorneys Ruth Harlow, Patricia Logue and Susan Sommer, along with Brian Chase in Lambda Legal’s Dallas office, are litigating the case. William M. Hohengarten, Paul M. Smith, Daniel Mach and Sharon McGowan from Jenner & Block, LLC in Washington, D.C., and Mitchell Katine from Williams, Birnberg & Andersen, L.L.P. in Houston, are Lambda Legal’s cooperating attorneys assisting on the case. For more background, go to Lambda Legal’s web resource center on the case at www.LambdaLegal.org/MakingHistory.

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