As of March 2003, there are thirteen states in the U.S. with sodomy laws. Nine of those states – Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia – have statutes that apply to everyone. The remaining four – Texas, Kansas, Oklahoma and Missouri only prohibit oral and anal sex between same-gender couples.
In 1998, a neighbor who harbored a grudge against John Geddes Lawrence of Houston, Texas, called police to report that it sounded as if a “man was going crazy” in his neighbor’s apartment. Responding to the report, police arrived on the scene, pushed open the door and discovered Lawrence and Tyron Garner engaged in anal sex. Police arrested the men who were convicted, fined $200 and sentenced to a night in jail.
After the embarrassment of the arrest most individuals would want to forget the entire ordeal and move on with their lives. But the two men soon discovered that the aftermath of the arrest would cost them much more than the small fine and a night in jail. Facing the prospect of being forever after registered as convicted sex offenders, the two men decided to fight.
On March 26, 2003 the United State Supreme Court heard arguments in Lawrence v. Texas, 02-102.
In arguments before the court, Houston District Attorney Charles Rosenthal maintained that the law promotes the institutions of marriage and family. “Texas has a right to set moral standards,” stated Rosenthal.
The attorney for Lawrence and Garner, Paul Smith stated “Most Americans would be shocked to find out that the decision to engage in sexual relations with another person might result in a knock at the door and a prosecution.”
The first attempt to eliminate a sodomy statute based upon its constitutionality was denied by the United States Supreme Court in 1986 under Bowers v. Hardwick. The Supreme Court held that the statute is constitutional and did not violate the respondent’s fundamental rights. [Opinion delivered by Justice White, joined by Justices Burger, Powell, Rehnquist and O’Connor. Dissenting opinion filed by Justice Blackmun, joined by Justices Brennan, Marshall and Stevens. Second dissenting opinion filed by Justice Stevens, joined by Justices Brennan and Marshall.]
Of the current Supreme Court Justices, three ruled on the 1986 Bowers v. Hardwick case. Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor voted with the majority to uphold the Georgia sodomy statute. Justice John Paul Stevens dissented.
Statements made and questions posed by some justices indicate the possible direction of their vote.
“These are laws dealing with public morality, they’ve always been on the books and no one has ever thought they are unconstitutional simply because there are moral perceptions behind them,” Justice Antonin Scalia said.
“The hard question here is, can the state pass anything it wants because the state thinks it’s immoral? If you’re going to draw a line anywhere, it might start with a line at the bedroom door,” Justice Stephen Breyer said.
Houston District Attorney Rosenthal was asked repeatedly if the state has evidence that there is some harm in sex between gays. His response was to compare it to drug use. In response Justice David H. Souter said, “I don’t see the parallel between the two situations.”
Justice Stephen G. Breyer, voicing deep skepticism about the Texas law, suggested that it was based on nothing more than simple dislike of homosexuals. He then went on to say, “I don’t see what this has to do with marriage. ‘I don’t see what it has to do with children. I don’t see what it has to do with procreation. So what is the justification for it?”
Chief Justice William H. Rehnquist wondered aloud whether, if the Texas law were struck down, “states could not prefer heterosexuals to homosexuals to teach kindergarten children.”
“It would be legal in Texas to have sex with an animal, but not your long-term partner,” said Dale Carpenter, a University of Minnesota law professor who filed a brief in the case.
A decision is expected before the end of June.
Until next time…