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Gay / Lesbian / Bisexual / Transgender community awaits Supreme Court ruling

by Vickie Sunday, Jun. 08, 2003 at 12:13 AM

In the land of the free, what business does the government have in your bedroom? Can gay celibacy be imposed by law? Supreme court to decide Texas Sodomy case. GLBT community prepares to celebrate or protest.

Gay/Lesbian/Bisexual/Transgender community awaits Supreme Court ruling

The government in your bedroom

The state should not have the power to go into the bedrooms of consenting adults in the middle of the night and arrest them, but that’s only the beginning of the damage done by this law and others like it around the country. These laws are widely used to justify discrimination against gay people in everyday life; they’re invoked in denying employment to gay people, in refusing custody or visitation for gay parents, and even in intimidating gay people out of exercising their First Amendment rights.

Ruth Harlow
Lead Attorney
Lambda Legal

Gay people as second-class citizens

The Homosexual Conduct Law and other laws like it brand gay people as second-class citizens and are used to justify further discrimination.

Lambda complaint to the Supreme Court

The Texas law in question: Gay sex is deviate

§ 21.01. Definitions

In this chapter:

(1) "Deviate sexual intercourse" means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

§ 21.06. Homosexual Conduct

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.

What does it mean?

Adult males are legally forbidden to place their mouths on the genitals of other adult males, adult women are legally forbidden to touch other adult women's vaginas, and adults of both sexes are legally forbidden to welcome anything into their anuses if said anything is being maneuvered by a member of the same sex.

However, if the maneuvering (or touching or mouth-placing) is done by a member of the opposite sex, Texas offers its implicit approval, having narrowed its sodomy laws to apply exclusively to same-sex in 1973 -- the same year Texas repealed its laws against bestiality.

As it stands, only homosexuals can violate Section 21.06, which manages the neat trick of barring homosexuals from any and all sexual expression. Forbidden to touch anyone of the same sex, lesbian and gay, Texans have two lawful choices: Go celibate or go straight.

David Schmader
The Stranger

The "crime scene":

But is it a crime?

Analyzed correctly under binding Supreme Court precedent, Texas Penal Code section 21.06 is in violation of the Equal Protection Clause of the Federal Constitution.

Justice John S. Anderson
Texas Court of Appeals

The legal remedy against the Texas sodomy law:

The Fourteenth Amendment requires that the state protect the fundamental liberties of its citizens, and that it do so on an equal basis. Texas' Homosexual Conduct Law violates both prongs of the constitutional assurance. By making only consensual "homosexual" sodomy illegal, the law violates the Equal Protection Clause as interpreted in Romer v. Evans.

Cato Institute amicus curiae

What about privacy in one's own bedroom?

Texas would like us to believe that there's no such thing as the privacy of one's own bedroom and that the state can decide which forms of sex are permissible and which are not.

Sodomy laws should stay to please conservatives:

Gay-specific sodomy laws are a symbolic gesture of traditional values.

"President" George W. Bush

Sodomy and same-sex marriage

What's involved here is not really that simple. Overturning laws against sodomy could be a significant step toward the homosexual activists' goal of legalizing same-sex marriage.

Don't expect to hear a lot about how short a leap it might be from striking down anti-sodomy laws to legalizing gay marriage. But be sure of this: The Lambda Legal Defense and Education Fund and other gay groups are thinking about that.

Russell Shaw
Catholic Herald

Tyron Garner and John Lawrence

On September 17, 1998, John Lawrence and Tyron Garner were having sex in the bedroom of John's apartment in Houston. They were adults and the relationship was consensual. They left the front door unlocked. Police officers, responding to a false call and looking for an armed intruder, entered the apartment with their guns drawn. John and Tyron were arrested for violating the Texas sodomy law – a relic of our intolerant past that no modern nation should tolerate still. The two men spent the night in jail, were fined 0 each, and are now considered sex offenders in several states.

Unlucky circumstance for sure, but sodomy laws are still alive and well in 13 US states. John Lawrence and Tyron Garner were not the first nor the last to suffer from legalized homophobia.

Interestingly enough, this gay-bashing hysteria didn't start with the founding of Jamestown. In the old days, as an amicus curiae filed with the Supreme Court by historians points out, proscription of non-procreative sexual activities (including masturbation and sodomy) applied indiscriminately to male-female, male-male, and human-animal relations. At that time, "'Sodomy' was not the equivalent of 'homosexual conduct.'" It was understood to be a "discrete act" and not a person's sexual orientation. The Cato Institute's amicus curiae explains the purpose of those sodomy laws not as regulation of homosexual conduct but "protection of the community against public indecency" and "protection of children, women, and weaker men against sexual assault."

But by the beginning of the 20th century lawmakers started singling out "sexual inversion" (i.e. homosexuality) as illegal. "Discriminating against certain citizens on the basis of their homosexual status is an unprecedented project of the twentieth century," write the historians.

This peaked from the 1930s to the 1960s. "Gay men and women were labeled 'deviants,' 'degenerates,' and 'sex criminals' by the medical profession, government officials, and the mass media." Indeed, in the 1960s, all fifty states had some sort of sodomy law to criminalize oral and anal intercourse between consenting adults, including in the privacy of their homes. Some of those laws applied to all, while others specifically singled out homosexuals. Whatever the case, it's gay and bisexual men that were made to suffer the full brunt of those pernicious enactments. Labeled as "sexual psychopaths" by those laws, they were subjected to "witch hunts, arrested, imprisoned, deported, debarred from entering the country, discharged from pubic employment and exposed as 'sex perverts' to their families, employers, and communities" according to the Cato Institute's amicus curiae, as well as subjected to long incarceration and "medical experimentation and torture."

Texas, running a bit behind the trend, or perhaps in reaction to Stonewall and the nascent gay movement, decriminalized heterosexual sodomy in 1973 while at the same time specifically criminalizing homosexual sodomy.

That law, section 21.06 of the Texas Criminal Code, is what got John Lawrence and Tyron Garner in trouble. And now that law has been accepted for reviewed by the Supreme Court.

Not for the fist time is the Supreme Court reviewing a sodomy law, mind you. In 1986 the Georgia sodomy law was challenged all the way to the Supreme Court by a gay man – Michael Hardwick. It quickly became one of the most infamous civil rights cases, known as Bowers v. Hardwick, and a decidedly unpleasant milestone in the history of gay liberation. The legal challenge was bases on the federal right to privacy.

Michael Hardwick was a bartender in a gay bar in Atlanta and targeted for harassment by the police. In 1982 officers were let into Hardwick's apartment to serve a warrant and found him in his bedroom having oral sex with another man. Both were arrested on charges of sodomy. Those charges were later dropped, but Michael courageously brought the case forward with the purpose of having the sodomy law declared unconstitutional once and for all.

Alas, it wasn't to be. In a 5 to 4 decision the Supreme Court ruled that nothing in the Constitution allows gay people to engage in consensual sodomy.

The Georgia sodomy law was finally struck down 12 years later, in 1998, by a 6 to 1 vote of the Georgia Supreme Court. The court ruled that the law violated the right to privacy guaranteed by the state Constitution. Victory at long last! The law had lasted 182 years. "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," said Chief Justice Robert Benham.

So the right to privacy in one's bedroom did finally prevail, if not under US Construction, then under Georgia Constitution. Yet the problem remained: sodomy laws are still constitutional in all states other than Georgia.

As for Bowers, Georgia's Attorney General at the time and chief defender of the sodomy law, it was later discovered that while he was prosecuting Michael Hardwick for sodomy, he was at the same time pursuing a 10-year long adulterous affair with an office employee – a crime under Georgia law of same classification as sodomy and carrying the same penalty. Needless to say, this little exercise in hypocrisy didn't serve him well when he ran for governor last year.

The 1986 Supreme Court ruling in Bowers v. Hardwick has become widely regarded as absurd, if not outright shameful, ranking in infamy not far below the Dred Scott case of 1857. "The Hardwick ruling has been used to deny gay men and lesbians jobs, housing, and custody of their children," says Ruth Harlow of Lambda Legal. Furthermore, "Sodomy laws have also been put forward as a purported rationale against enacting civil rights laws that bar discrimination based on sexual orientation, subjecting gay people to second-class citizenship."

Ruth Harlow, Lambda's Legal Director, with client John Lawrence

Now, 17 years later, the Supreme Court has a chance to revisit that decision. The case 02-102, John Geddes Lawrence And Tyron Garner v. Texas, was argued orally on March the 26th. For the plaintiffs attorney Paul Smith contended that the sodomy law should be struck down not only on privacy grounds, but also because it violates the Equal Protection Clause by permitting sexual intimacy only for heterosexual couples and therefore turns gay people into a sexless second class with less rights than other citizens.

For Texas, Harris Country District Attorney Charles Rosenthal argued, rather absurdly, that the law is aimed at protecting marriage, family, and children. He never explained what harm the law is supposedly protecting against, other than moral corruption. "There is no protected right to engage in extra-marital sex [of any kind]," he said, asserting the state's right to regulate any and all sexual practices, even those taking place behind closed doors and among consenting adults.

The court is to decide.

DC, along with most states these days, doesn't have a sodomy law so the outcome won't have any legal ramifications here other than being a great symbolic victory. But just across the Potomac, in Virginia, section 18.2-361 of the Criminal Code is still in the books. You'd think that in this day of age sodomy laws are not enforced anymore, or indeed enforceable at all. Not so. This is how a Virginia cop summed up the situation: "If you leave your window ajar and your neighbor sees some unholy activity taking place and we are called, then we have to investigate. And if we see the same thing through the window, then it's 1 year in jail and 00 fine." The offense if a felony. People get caught in their houses, in cars, in parks, and in all kinds of other places. Often gay men are entrapped in undercover sting operations. Virginia, along with 8 other states, criminalizes sodomy for heterosexual and homosexual couples, but as always it's gay people that suffer most from this law. Texas and 3 other states criminalize homosexual sodomy specifically.

How the Supreme court will rule is impossible to guess. There is no denying that the court is extremely conservative – as becoming of the judicial branch of government – and that the general conservative predisposition of the country toward gay issues isn't helping either. And yet, during oral arguments, some Justices peppered Mr. Rosenthal with pointed questions, at times ridiculing his arguments.

A decision is expected any day now, perhaps as early as Monday. Stay tuned for news and be ready to celebrate or protest.

Protest or celebrate:

On the day the Supreme Court decision is announced:

  • Atlanta GA: 6 pm – 10th and Piedmont. Info: Asha Leong, Lambda Legal, 404-897-1880.
  • Charleston SC: 7 pm – Meeting at the offices of the Alliance for Full Acceptance, 1818 Elsie Drive. Co-sponsors: AFFA and the Lowcountry Gay and Lesbian Alliance.
  • Chicago IL: 7 pm – Rally at the corner of Halsted & Roscoe. Co-sponsored by the Chicago Anti-Bashing Network and Equality Illinois. Contact:, or 888-471-0874.
  • Columbia SC: 7 pm – Informational meeting at the Gay and Lesbian Community Center, 1108 Woodrow. Info: South Carolina Gay and Lesbian Pride Movement, 803-771-7713.
  • Dallas TX: 5:45 pm – Rally at the Gay Community Center. Info: Lee Taft or Roger Wedell, Lambda Legal, 214-219-8585.
  • Houston TX: 5 pm – Rally on the steps of City Hall (901 Bagby). Join John Lawrence and Tyron Garner for this important occasion. Speakers will include GLBT leaders, lawyers, and public officials. Info: Mitchell Katine, 713-981-9595 or
  • Los Angeles and West Hollywood CA: 7 pm – West Hollywood Auditorium (the Auditorium is located on San Vicente between Santa Monica and Melrose). Event co-sponsored by the Movement for Action and Accountability and the City of West Hollywood. Speakers will include attorney Jon Davidson from Lambda Legal, one of the legal organizations involved in the case, attorney Martha Matthews from the ACLU of Southern California, State Senator Sheila Kuehl, Assembly people Jackie Goldberg and Paul Koretz, the West Hollywood City Council, Supervisor Zev Yaroslavsky, rally organizer Ivy Bottini, and creator Robin Tyler. Contact: Ryan Gierach, 323-650-2879 or
  • New York City NY: 7 pm – Rally at Stonewall Park (7th Ave/Christopher St). Sponsored by Queers For Peace And Justice NYC. Info:
  • Richmond VA: 3 pm – Press conference at the Bell Tower at the Capitol. Info: Dyana Mason, Equality Virginia, 804-643-4816.
  • Washington DC: 7 pm – Dupont Circle. Co-sponsored by Queers for Racial and Economic Justice & DC Radical Faeries. Contact: or call 301-277-1854.

Additional info about the case:

Lambda Legal:

Lambda Legal's brief asking the Supreme Court to hear the case:

The state of Texas' response asking the Supreme Court not to hear the case:

Lambda Legal's reply again asking the Supreme Court to hear the case:

Supreme Court oral arguments transcript:

NPR's Nina Totenberg on the oral arguments:

The Supreme Court:

Docket (case 02-102):

Resource on sodomy laws:

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