Lawrence, John, et al. v. Texas

Questions presented: (1) Whether a criminal conviction under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violates the 14th Amendment guarantee of equal protection of the laws? (2) Whether a criminal conviction for adult consensual sexual intimacy in the home violates a person's vital interest in liberty and privacy protected by the Due Process Clause of the 14th Amendment? (3) Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?

BY ALLIE RASMUS, MEDILL NEWS SERVICE

On the night of Sept. 17, 1998, the Harris County Texas Police Department received a frantic call.

The person on the other end of the line had called to report there was a man with a gun, "going crazy" in the Houston apartment of John Geddes Lawrence.

Harris County officers responded, arrived at the scene and entered the apartment. What they saw was no armed intruder, but two people committing what the state of Texas considers another type of crime.

Police arrested Lawrence, 55, and Tyron Garner, 31, that night for breaking the states "homosexual conduct" law. A class C misdemeanor, it is defined as when a personengages "in deviate sexual intercourse with another individual of the same sex." Lawrence and Garner had no idea the law, punishable by up to $500 in fines and a year in jail, even existed.

A few weeks later, Lawrence and Garner were tried and found guilty on charges of "deviant homosexual conduct" in a Harris County court. They were each fined $200. Lawrence and Garner decided to appeal, challenge the statutes constitutionality and have the law, and their convictions, thrown out.

They appealed, claiming the Texas statute violated the U.S. and state constitutional equal protection clauses.

Anti-sodomy laws have been on the books in Texas since the late 1870s. But when the Texas legislature changed the state penal code in 1973, the statute banning sodomy across the board among both heterosexual and homosexual couples was changed to apply only to homosexual couples engaged in "deviant sexual behavior."

Lawrences lawyers, of the Lambda Legal Defense and Education Fund, a group that provides legal assistance to gays and lesbians, also argued to the Court of Appeals in Texas 14th District that the statute constituted an invasion of privacy. During the previous three decades, Harris County had charged and tried individuals under the anti-sodomy statute only three times before, and those cases were mostly linked to sexual conduct occurring in public jail cells, a key difference from the sexual conduct at issue in Lawrences case, which took place in the privacy of his home, argued Lawrence and Garners lawyers. They contended the statute "puts the state of Texas inside its citizens homes, policing the details of their most intimate and private physical part of adulthood."

A three-judge panel ruled 2-1 that Lawrence and Garners convictions "impermissibly discriminate on the basis of sex," and violated the Equal Rights Amendment of the Texas Constitution because the two men wouldnt have been charged had they been caught engaging in heterosexual anal sex.

But by the following spring in March 2001, the case was back in the Texas Court of Appeals again for review by the full court. By a vote of 7-2, the Texas appeals court reversed, holding that the states "homosexual conduct" law was facially constitutional.

The majority concluded that the state of Texas had not violated Lawrence and Garners privacy because when the police entered the apartment they were just doing their job, responding to a reported "weapons disturbance."

Police would later find out that the caller who had told police about the armed intruder in Lawrences apartment had made up the whole incident. He was charged and later convicted for filing a false report once police realized there was no crazed, gun-wielding intruder at the scene.

The seven judges who ruled to uphold the law also said that unlike gender, race and nationality, gays and lesbians did not have the same protection under the Equal Rights Amendment. According to U.S. Supreme Court precedent, the judges said, only race, gender and nationality were "protected classes." Sexual orientation was not. The seven judges reasoned that the Texas government had the right to discriminate against groups of individuals that were not "protected classes" if it could prove it had a compelling interest in doing so. They agreed with the state that the statute "advances the state interest of preserving public morality."

"There has never been any doubt that the legislature, in the exercise of its police power, has authority to criminalize the commission of acts which are considered immoral," the opinion concluded.

In dissent, Judge John Anderson criticized the majoritys "Herculean effort to justify the discriminatory classification ]of the Texas law] despite the clear prohibitions on such discrimination contained in the Equal Protection Clause of the United States Constitution and the Texas Equal Rights Amendment in the Bill of Rights of the Texas Constitution."

The dissenters could not fathom how the statute could be justified "on the majority's sole asserted basis of preserving public morality, where the same conduct, defined as deviate sexual intercourse is criminalized for same sex participants but not for heterosexuals. The contention that the same conduct is moral for some but not for others merely repeats, rather than legitimizes, the Legislatures' unconstitutional edict."

The Texas Court of Criminal Appeals Texas highest court declined to review the case, so Lawrence and Garner sought review from the U.S. Supreme Court.

They urged the Supreme Court to address whether the Texas statute is unconstitutional on the grounds that it discriminates against gays and lesbians under the federal equal protection clause, that the statute violates constitutional rights to liberty and privacy and that the Courts 1986 opinion in Bowers v. Hardwick, in which state sodomy laws were upheld, be overruled. In Bowers, the Court ruled consenting adults have no constitutional right to private homosexual sex.

Gay rights advocacy groups, several of which filed "friend of the Court" briefs in support of Lawrences case, expressed their concern about the possible implications sodomy convictions have for gays and lesbians. Advocacy groups argue that criminal records for those convicted of sex offenses also amounts to employment discrimination and unfairly precludes gays and lesbians from applying for certain jobs. They also note that convictions under sodomy statutes prevent gay parents from having custody of their children, because in many states the convictions make them sex offenders.

"I think its very important to realize [this law] is the underlying reason people justify discrimination against gays and lesbians," said Randall Ellis, executive director of the Lesbian and Gay Rights Lobby of Texas.

"We remove this and we start to remove the reasons why people see gay and lesbians as deviant."

While Harris County District Attorney William Delmore admits the statute is very difficult, if not virtually impossible to enforce, he argues that the Texas legislature believes the statute still serves an important symbolic purpose.

"There was a strong legislative feeling that the [statute] should speak to homosexuality," Delmore said. "It acts on the belief that the legislature wanted to discourage or deter that behavior and the belief that its immoral."

He says the statute, like other laws targeting so-called "deviant behavior" such as pornography and prostitution, serve a social purpose and is based on "centuries" of common law precedent.

But the Texas law is inconsistent with a growing national trend to eliminate what have been viewed as archaic and unenforceable laws that many say deal with the often-times legally untouchable realm of an individuals private, personal life.

The Lambda Legal organization has no estimates on the number of people who have been charged for breaking anti-sodomy laws, but attorney Ruth Harlow points out the latest census results show there are 43,000 gay and lesbian individuals in the state of Texas who could potentially face prosecution under the law.

During the last decade, the Montana, Georgia, Tennessee and Kentucky state courts have found their homosexual sodomy laws unconstitutional. The state of Missouri is currently in the process of deciding on the constitutionality of its anti-sodomy statute, and the Arkansas Supreme Court was the latest state justice branch to do to so. In July 2002, it threw out its anti-sodomy statute, making Texas, Kansas, Oklahoma and Puerto Rico the only remaining states or territories that uphold the constitutionality of a ban specifically aimed at same-sex intercourse.On Dec. 2, 2002, the U.S. Supreme Court granted certiorari in the case.

On June 26, 2003, on the final day the Court issued opinions for its 2002-03 term, the Court struck down Texas' homosexual conduct statute.

Justice Anthony Kennedy wrote the Court's opinion for a 6-3 majority. The majority opinion rested on the Constitution's due process clause, stressing that the law undermined the private conduct of adults in the exercise of their liberty under the clause.

Justices Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist dissented.