Sodomy and the Supremes

October 27, 2002

As some of you may know, homosexual sodomy is illegal (a misdemeanor) in Texas. About two years ago, two gay men were arrested in Houston when police entered the one man's house and caught the two in the act. After several appeals, during which the heavily right-wing Republican Party of Texas placed a significant amount of pressure on the judges hearing the case, the law was upheld by the Texas Court of Criminal Appeals, which is the highest court for criminal matters in Texas. The case was appealed to the United States Supreme Court on two grounds - that it violated equal protection under the Federal Constitution and that it violated the right of privacy.

Now, the process of appealing to the Supreme Court requires the party appealing the case to ask the Supreme Court to grant a writ of certiori. If four judges on the Supreme Court vote to grant cert, then the case is placed on the Supreme Court docket, where it is argued before the Supremes. The Court then renders its opinion which, because they are the Court of last resort in the US, can throw out (or uphold) state laws such as this. The last time the Court heard a sodomy case was the Bowers v. Hardwick case in which the court upheld Georgia's sodomy law by a 5-4 vote, ruling that there was no right to homosexual sodomy, and dealing quite a setback to gay rights in the US. As someone said afterward (I believe it was Larry Kramer), can you imagine, it is illegal for us to make love?

On the first Monday in October, which is traditionally the first day of the Supreme Court's term, they announce the cases they will hear during the upcoming term. Naturally, I checked the list to see if they were going to hear this case. After all, if they refused cert - that is, they refused to hear the case - it would be a considerable loss for gay rights, since that would be tantamount to upholding the Texas sodomy laws, which, by the way outlaws only homosexual acts. However, the case was neither on the list of cases they were going to hear nor on the list of cases refused.

I quickly emailed Mitchell Katine, a Houston lawyer, former professor of mine, and good friend who has been representing this case since the men were arrested to ask if he'd heard anything. Mitchell quickly told me that the Court had asked the State of Texas to submit a brief defending its position which it does if it is likely to hear the case but hasn't quite made up its mind. So the good news is, there is no further news on the case, but I'll keep you all posted as soon as I hear something.

This is an important case for us in the US. If the Court hears this case, it will be given the opportunity to revisit its decision in Bowers v. Hardwick. If it overturns the Texas law, it will very likely spell the end of sodomy laws in the US - a big step forward for our rights. However, it could also go the other way - especially with judges like Clarence Thomas, Antonin Scalia, and Chief Justice Rhenquist on the bench. Cross your fingers on this one - either way, it's going to be a close vote.