In a , the Supreme Court gave gay rights advocates a major victory. The nation’s highest court ruled the law violated constitutional privacy rights. The court also overruled its 1986 decision that upheld a Georgia sodomy law and that declared homosexuals have no constitutional right to engage in sodomy in private. The case of Lawrence and Garner v. Texas presented a challenge to laws in Texas and three other states — Oklahoma, Kansas and Missouri — that made it a crime for same-sex couples to engage in sexually intimate conduct that would be legal between men and women. More broadly, it also challenged a state’s authority to criminalize private, consensual sexual activity.
Case: John Geddes Lawrence and Tyron Garner v. State of Texas
Supreme Court Number:
Argument Date: March 26, 2003
Decision Date: June 26, 2003
Issue: Does a Texas state law violate the U.S. Constitution by making it a crime for same-sex couples, but not different-sex couples, to engage in sexually intimate behavior?
Background: Late on Sept. 17, 1998, someone phoned in a false report of a “weapons disturbance” at the home of John Lawrence. The responding police officers entered and discovered him and Tyron Garner having sex. The men were arrested, jailed overnight and charged with violating the Texas homosexual conduct law, which makes it a crime for same-sex couples, but not a man and woman, to, among other things, engage in oral or anal sex.
After they were fined $200 each, Lawrence and Garner challenged the Texas law, arguing that it violates their right to privacy and the 14th Amendment’s guarantee of equal protection, since it applies only to same-sex couples. A three-judge panel of the Texas Court of Appeals ruled in their favor, but the full court reinstated their convictions, ruling that the Texas law advances a legitimate state interest in preserving public morals.
Lawrence and Garner now appeal to the U.S. Supreme Court.
Argument
For Lawrence and Garner
Ruth Harlow, Lambda Legal Defense and Education Fund; Paul Smith, Jenner & Block
The “Homosexual Conduct” law and the convictions of Lawrence and Garner are unconstitutional for two reasons.
First, the law discriminates against gay citizens without a legitimate and rational state purpose, in violation of the equal protection clause of the Constitution’s 14th Amendment. In 1973, Texas broke with both the evenhanded laws of the past and the decisive modern trend toward decriminalization. The state chose to criminalize consensual, adult sexual behavior only for those whose partners are of the same sex — gay men and lesbians. The decision by Texas to classify along that line brands gay men and lesbians as lawbreakers and fuels a whole range of further discrimination, effectively relegating them to a form of second-class citizenship.
Second, this criminal law directly implicates fundamental interests in intimate relationships, bodily integrity, and the home. Texas’s law and the few other remaining consensual sodomy statutes — both those that discriminate and those that do not — trample on the substantive liberty protections that the Constitution erects in order to preserve a private sphere shielded from government intrusion. Here, where Texas authorizes such intrusion into the homes and lives only of same-sex couples, the constitutional injury is especially clear and disturbing.
The law puts the State of Texas inside the homes of its citizens, policing the details of their most intimate and private physical behavior and dictating with whom they may share a profound part of adulthood.
The Supreme Court should abandon its 1986 decision in Bowers v. Hardwick, in which it said the Constitution affords no privacy protection to consensual homosexual conduct. Since that decision, states have steadily rejected the extreme intrusion on the real of personal privacy approved in that case. Three-fourths of the states have since repealed or invalidated sodomy laws, including Georgia, the state involved in the Bowers case.
For the state of Texas
William Delmore III, assistant district attorney, Harris County, Houston
The states have historically prohibited a wide variety of extramarital sexual conduct, a legal tradition which demonstrates that there is no constitutionally protected liberty interest in engaging in any form of sexual conduct with whomever one chooses. Nothing in the Supreme Court’s due process decisions supports recognition of a constitutional right to engage in sexual misconduct outside the institution of marriage.
The Supreme Court should adhere to its previous holding on this issue in Bowers v. Hardwick, and it should reaffirm that the personal liberties protected by the due process clause of the 14th Amendment are limited to those “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Since enforcement of the homosexual conduct law does not interfere with the exercise of a fundamental right, and since the statute does not touch on a class of people protected by law from discrimination, the state must show only that the statute is rationally related to a permissible state goal in order to withstand equal protection challenge. Making one form of extramarital sexual conduct illegal is in keeping with long-standing national tradition and bears a rational relationship to the worthy governmental goals of maintaining public morality and promoting family values.
The Texas law does not discriminate, because it criminalizes a form of conduct when engaged in by members of the same sex, whether they are of exclusively homosexual orientation or persons who regard themselves as bisexual or heterosexual.
As for a change in the nation’s view of homosexual conduct, some states have repealed their sodomy laws, but that dos not constitute evidence of a national tradition of espousing, honoring, or safeguarding a right to engage in deviate sexual intercourse.
Friend-of-the-court briefs
For Lawrence and Garner
Institute for Justice in Washington
“This case is about the proper scope and limits on government power, more than it is about homosexual conduct,” the group says.
The real issue, the group says, is “not whether the defendants had the right to engage in their specific sexual activity but instead whether the government has the power to prohibit it.”
“The primary purpose of police power regulation is to protect individuals from harm. Even the government’s purported interest in protecting public morality does not extend government power into the realm of private moral or immoral conduct. Indeed, legislative declarations demanding that people behave in certain ways in their private lives, based on majority perceptions of what is moral, destroy individual liberty.”
The American Psychological Association
Homosexuality is simply one variant of sexual identity, which ceased long ago to be considered a disorder. Mental health professionals do not associate anal and oral sex with any psychopathology and do not view them as “deviate.”
The Alliance of Baptists and other religious groups
Some religious organizations in the brief believe homosexual conduct is inconsistent with their teachings, but all the groups oppose laws that criminalize private same-sex conduct between consenting adults, believing they are not morally justified.
For the state of Texas
A group of Texas state legislators
Texas is acting entirely rationally to promote marriage and procreation and discourage sexual conduct outside of marriage. A victory for the other side in this case would have serious implications for marriage laws in every state, and these issues should be worked out in the states, not the Supreme Court.
Agudath Israel of America
A decision that states are constitutionally prohibited from using their police powers against persons who engage in homosexual conduct could have far-reaching consequences, devaluing the state’s interest in laws premised on considerations of traditional morality.
Center for Law and Justice International
A ruling that all sexual activities between consenting adults is a fundamental right would undercut laws against adultery, polygamy, polyandry and incest. Forcing the states’ hands without any basis in constitutional text or legal history would produce the same national discord as followed Roe v. Wade.
Pete Williams covers the Supreme Court for NBC News.