Supreme Court Strikes Down Sodomy Law

June 27, 2003

June 26, 2003 is a day of independence for all people, especially gay, lesbian, bisexual, and transgender people in this country. Mitchell Katine, original attorney for Lawrence & Garner.

I am so very pleased to inform all of you that by a vote of 6-3, the U.S. Supreme Court struck down the Texas sodomy law on the basis that it violated the right to privacy under the U.S. Constitution. The decision in Lawrence et al. v. State of Texas, was not entirely unexpected, given the tone of the questions during oral arguments last March.

I and many other attorneys expected that the decision would be based on the equal protection argument - that is, a law that prohibits conduct by one class of people but does not prohibit the same conduct by another class violates the Constitution's equal protection clause. If this had been the basis for the Court's decision, it would have invalidated the Texas sodomy statute, which prohibited homosexual sodomy, as well as the several other states that had similar laws. However, it would not have invalidated all sodomy laws, allowing states to keep such laws on the book if they applied equally to heterosexuals and homosexuals.

Fortunately, the majority decision, written by Justice Kennedy, and joined by Justices Souter, Ginsberg, Stevens and Breyer, held that the Texas statute violated the right of adults to engage in private conduct in the exercise of their liberty under the Constitution's Due Process Clause. In arriving at its holding, the majority took the opportunity to revisit and overturn the Supreme Court's decision in Bowers v. Hardwick, the 1986 case in which the Court held that there was no privacy right to homosexual conduct and which many people believe was wrongly decided. These laws, the Court wrote, have far-reaching consequences, touching upon the most private human conduct, sexual conduct, in the most private of places, the home. Furthermore, the Court noted that the history of sodomy prohibitions previously discussed in Bowers, was wrongly discussed; that, in fact, laws against homosexual sodomy were a twentieth-century phenomenon that discriminated against homosexuals for no real reason.

The Court also noted that times had changed since Bowers was decided and the opinions of people all over the world have changed in regard to private homosexual conduct. Such private conduct was increasingly afforded the same level of protection as other areas protected by the Due Process Clause, including such personal decisions as marriage, procreation, contraception, family relationships, child rearing, and education. The Supreme Court decision in Romer v. Evans, which struck down the Colorado law aimed specifically at homosexuals, further placed Bowers in doubt. Thus, the Court decided to overrule Bowers, providing us with a legal basis to argue for other rights, such as adoption and marriage.

Justice Sandra Day O'Connor, the sixth vote against the law, joined the majority in the decision but wrote a separate opinion in which she stated that she voted with the majority because she believed that the law violated equal protection and not any right to privacy. Justice O'Connor was one of the three current justices who were sitting on the Court when Bowers v. Hardwick was decided, and was one of the five justices who voted to uphold the Georgia sodomy statute at that time. She was not voting to reverse Bowers because she believed it was correctly decided. She also made it clear that she would vote against any attempt to extend the marriage laws in this country to homosexuals.

Not surprisingly, the dissent was written by Justice Scalia, the Court's most right-wing member. He expressed his dissent by reading his opinion from the bench, something he does when he is particularly incensed by being on the losing end of a decision. No question that he is an enemy of ours despite his pronouncement that he has nothing against homosexuals. Keep this in mind when you are next tempted to vote for George W. Bush, who has said he'd like to appoint more judges like Scalia and Thomas. As usual in these things, Scalia's dissent was joined by Chief Justice Rhenquist and Justice Clarence Thomas. However, Thomas wrote a separate, one page dissent in which he opined that if he were a Texas legislator, he would have voted to do away with the sodomy statute.

I urge all of you to read the opinion for yourself. It will become the basis for America finally allowing us to be treated like equal citizens. Sometimes justice does prevail. The decision can be found at http://www.supremecourtus.gov/opinions/02slipopinion.html under the name Lawrence v. Texas.

Particularly poignant to me was how diverse the two defendants in this matter were. Tyron Garner is young and black. John Lawrence is older and white. I can't think of two men who more accurately reflect our diversity than these two reluctant heroes. We should all thank them from the bottom of our hearts for having the courage to stand up and take this all the way to the highest court in America. Bravo, gentlemen!

There will be many celebrations today and through this weekend and, for all of you in Texas and in other states with sodomy laws on the books, go home and, well, commit a little sodomy!