U.S. Supreme Court to reconsider anti-homosexual laws

December 2, 2002 2:49 PM

On September 17, 1998, in response to an armed robbery call, Houston police burst in to the home of John Lawrence. The police didn’t find a robber (nor would they – the call was deliberately false), but they did find Lawrence having sex with another man, Tyrone Garner. Lawrence and Garner were promptly charged with “engaging in homosexual conduct,” a misdemeanor under Texas law. They paid their fine and began a long legal challenge to Texas’ anti-sodomy law. That challenge has finally reached the steps of the U.S. Supreme Court, which today agreed to hear their appeal early next year. Standing in the way is the Court’s own 1986 decision in Bowers v. Hardwick, in which it held that anti-sodomy laws are constitutional. That may be about to change.
posted by pardonyou? (43 comments total)

Although I agree with Lawrence and Garner that the anti-sodomy law should be repealed, I don't agree with the way in which they went about this. Are people really going to be able to see past the fact that they placed a false call to the police?
"I hope we get the law changed. I feel like my civil rights (were) violated, and I wasn't doing anything wrong," Garner said.
I, and maybe others, fail to see how their civil rights were violated when they placed a call to the police intending them to barge into their home and witness this sexual act. I find it to be rather lucky for them that this fine was the only damage that they incurred.
posted by Raichle at 2:58 PM on December 2, 2002

Looking at their petition for certiorari, if it's struck down it won't likely be struck down on the grounds that I'd like.

They're arguing in part that the TX law violates the equal-protection part of the 14th amendment. They were convicted under the Homosexual Conduct statute that bans only *gay* sodomy, leaving people free to engage in the same conduct with a playmate of the other sex.

So if it's struck down on those grounds alone, the court doesn't need to consider whether blanket bans on sodomy, where nobody is allowed near anyone else's bum-bum of any sex whatsoever, are still constitutional.

What will be *really* fun are the next round of cases, a gay man sues on the basis that even if the law says it applies to everyone, it isn't in fact applied to straight couples and probably can't be applied to married couples under Griswold, the case that finds a privacy right.

Does anyone know whether this has been run as an intentional test-case? Prosecutors usually have better sense than to prosecute crap like this unless they're actually trying to get the law struck down. Even in the Bowers case, the DA refused to prosecute.

Raichle: the cnn post didn't say that they made the call themselves. I wouldn't put it past an asshole neighbor to have done it to harass them, assuming that the whole thing wasn't ginned up as a test case.
posted by ROU_Xenophobe at 3:04 PM on December 2, 2002

If they win their case, do they get their fine money back?
posted by poseur at 3:24 PM on December 2, 2002

ROU_X, don't forget that oral sex is included in the legal term "sodomy" and that just about every couple I know (hetero or not) has broken that law.

It's a stupid law, one which I hope the small gov't folks could agree goes beyond the bounds of what governments are supposed to be writing laws for.
posted by mathowie at 3:26 PM on December 2, 2002

surely making a fake call (if that's what it was) is the best way to do this. the best way to challenge the law, i presume, is via a court case; the only way to have a court case is to have someone prosecuted. better it's two people who are ready to take all the crap that is going to be flying than two poor innocents who were just unlucky.

ok, it was an abuse of police time, but it's hardly frivolous - they didn't run away laughing into the night. somehow i doubt that it's going to trigger a wave of copycat crimes.
posted by andrew cooke at 3:27 PM on December 2, 2002

As a Brit, I'm stunned to learn about these laws, and further stunned that they were upheld as recently as 1986! This is insanity.
posted by Pretty_Generic at 3:28 PM on December 2, 2002

Pretty_Generic: we have these laws, and yet we still rule the world. Amazing.
posted by ParisParamus at 3:30 PM on December 2, 2002

The caller, a neighbor, was arrested himself and pleaded no contest to filing a false report, and appears to have done it maliciously. He had two weeks in jail to reconsider his actions.

There seems to be a lot of confidence that the court will side with the plaintiffs (the two men), given the Rehnquist court's interest in private property rights and limiting state power. If they don't strike down the law, they may limit its applicability. At the least, they're likely to take a dim view of some of the briefs filed, like the one that says it helps protect the public against STDs like AIDS. But they may still side with the idea that the legislature gets to decide.
posted by dhartung at 3:31 PM on December 2, 2002

Shouldn't at least some of the Judges recuse themselves for having committed the subject acts themselves?
posted by ParisParamus at 3:32 PM on December 2, 2002

i think sodomy laws are absurd and discriminatory (I don't think there's ever been one case brought against a straight couple), and i wish them well...even Georgia's sodomy law was eventually repealed...

here's a houston chron story (cached) that says an acquaintance called the cops...
posted by amberglow at 3:34 PM on December 2, 2002

ParisParamus: Mind you, in York you're still allowed to shoot a Scotsman with your crossbow on any day but the Lord's.

Oh no, hang on, that's probably overridden by this "murder" thing...
posted by Pretty_Generic at 3:34 PM on December 2, 2002

i think sodomy laws are absurd and discriminatory (I don't think there's ever been one case brought against a straight couple)

Against a couple engaged in consensual sex, no. Such laws, however, are often used to prosecute heterosexual rape. For what it's worth.
posted by mr_roboto at 3:43 PM on December 2, 2002

Goodness gracious, next thing you know, they'll be trying to make dildos legal in Texas.
posted by chipr at 3:46 PM on December 2, 2002

I would assume that Romers v. Evans (finding that Colorado's anti-gay rights law violates the equal protecion clause of the 14th amendment) will play a large part in this decision. A victory here could put gay rights on some pretty solid Constitutional ground, perhaps even establish sexual orientation as a quasi-suspect category similar to gender (probably unlikely, but one can hope). Also, unlike ROU, I think that their decision to argue the case on equal protection grounds was both strategically sound (given Bowers v. Hardwick) and makes for better constitutional law if they win. Equal protection jurisprudence can be a bit murky, but it is nothing compared to the quagmire of sustantive due process and the "right to privacy." Also, a victory under the 14th amendment may open some previously shut doors to challenge other types of government actions that discriminate against marginalized groups such as aliens, the disabled, the eldery and the poor.
posted by boltman at 3:51 PM on December 2, 2002

Without an ounce of research (wouldn't know where to start), I think it's safe to say that most of these laws are quite old. The fact that one of them was upheld in 1986, well, there are always surprises.

My point is, there are still laws that require those who approach an intersection to stop, honk three times, get out and fire one shot from your rifle into the air, wait 10 minutes, etc... before proceeding. Until a really good reason (other than "just because") for wiping it from the books comes along, it will sit there for eternity.

The laws in question here are wrong and everybody knows it. It's just a matter of going through the paces of righting that wrong. I don't think there is anything to get all up in arms about. Give it time and it will work itself out.
posted by Witty at 3:58 PM on December 2, 2002

Just what sodomy needed: its very own Rosa Parks(es).
posted by Ty Webb at 4:12 PM on December 2, 2002

Check out the ACLU site for a little more info on this and other challenges like it.

As horrifying that laws like these are out there (mostly in the South, of course...) but not surprising. Sadly...it's going to take a long time for this kind of thing to disappear.

I acually know people who believe that oral sex is a sin and have never engaged in it. Weird, huh? Maybe they should move to Arkansas (from link above).....

"ARKANSAS
M 5-14-111, Sodomy, 1 year/$1000, same sex only. Bill passed unanimously "aimed at weirdos and queers who live in a fairyland world and are trying to wreck family life." Signed into law by governor in 1977. "

ahhhh....I love an open mind.
posted by aacheson at 4:14 PM on December 2, 2002

That may be about to change.

*Looks at current White House and Congress*

Hmmmmm...
posted by zekinskia at 4:16 PM on December 2, 2002

Pretty_Generic - not sure why, as a brit, you're so stunned. this report indicates that there were still some pretty odd anti-gay laws in the uk in june 2002 (i don't know whether they've chnaged - i left the country earlier that year and so don't follow the news as much).

maybe someone has already linked this - http://www.sodomylaws.org/ is a useful resource.
posted by andrew cooke at 4:23 PM on December 2, 2002

ROU_X, don't forget that oral sex is included in the legal term "sodomy" and that just about every couple I know (hetero or not) has broken that law.

Yeah, I know. It's just more fun to talk about bum-bums.

As a Brit, I'm stunned to learn about these laws, and further stunned that they were upheld as recently as 1986!

Why? As of this June, it was illegal in Britain for:
(1) Men to kiss in public
(2) Men to pick up or solicit other men for sex
(3) Men to have sex if another person is present

They're not enforced, and they're essentially never enforced in the US either. This looks like a test case, given that the relevant DA is on record as saying that the best way to get rid of a bad law is to enforce it.
posted by ROU_Xenophobe at 4:30 PM on December 2, 2002

i think sodomy laws are absurd and discriminatory (I don't think there's ever been one case brought against a straight couple)

Against a couple engaged in consensual sex, no. Such laws, however, are often used to prosecute heterosexual rape. For what it's worth.

I could not find it. It was in the south that a young couple her, in her late teens, him twenty were married or engaged to get married. Her father is trying to get him on sodomy charges for oral sex. Because she is old enough to marry, this would be the only way the father had a case to intervene them from being together.

If I remember right all this just happened during this past summer. I hope not too confusing I just remember that legally the couple committed no crime in having sex. But oral sex something that they say they did do, would be illegal in their state and the father was going after him for it.
posted by thomcatspike at 4:30 PM on December 2, 2002

did anything happen to him, thom? (and that father needs help....)
posted by amberglow at 4:33 PM on December 2, 2002

it should be; intervene between them....

Amber, This is an open case the last I heard, that is why I brought it too the discussion. Yea you bet some one has a problem. Because again what stuck out was the fact that they couldn't arrest him for rape, but sodomy.

And I really think they were married....
posted by thomcatspike at 4:37 PM on December 2, 2002

Witty, the Texas law is not the situation you describe at all -- it's not a matter of just cleaning up some obsolete language. Obviously, the Texas law is enforced in some cases. Worse, the law is used as a weapon against gay & lesbian people in other situations every day. An obvious one is when the ex-spouse finds out you're gay/lesbian and tries to get custody of the children.

Also, the current Texas law was passed in 1973.
posted by SteveL669 at 4:52 PM on December 2, 2002

andrew cooke and ROU_Xenophobe:

I'd never heard of these English laws, which indicates their chances of being enforced. ROU, RU really saying that the only reason these men were punished was to highlight the illogical nature of the law they had broken? I find that hard to believe.

It's true that I seem to be rare among Britons in thinking that the constitution of a country and its illogical laws, however unenforced, are really important. If I was in charge, I'd spend some of my time spring-cleaning the legal system, so people would at least have an picture of what ideal they should be working towards, and that it doesn't involve an ideal sexuality.
posted by Pretty_Generic at 5:15 PM on December 2, 2002

Until a really good reason (other than "just because") for wiping it from the books comes along, it will sit there for eternity.

Really Good Reason #1: Obsolete and/or absurd laws needlessly make criminals of people.

Really Good Reason #2: Obsolete and/or absurd laws diminish respect for the Law in general.

Really Good Reason #3: Nothing should be illegal unless the current citizenry (as expressed through their legislators) wish it to be illegal.

Really Good Reason #4: Obsolete and/or absurd laws on the books provide ammunition and opportunity for law enforcement to harrass and arrest citizens when they have some other axe to grind with them.

The attitude that having laws on the books "making it illegal to spit on a bear every other Tuesday" is just silly and harmless is extremely destructive to the validity of our legal system, not to mention intellectually lazy and irresponsible.
posted by rushmc at 5:19 PM on December 2, 2002

Such laws, however, are often used to prosecute heterosexual rape. For what it's worth. - mr roboto

Why would they use that law, when there already is a law against rape?
posted by dash_slot- at 5:22 PM on December 2, 2002

The entire concept of legal justice is predicated on the idea that it is neither random nor capricious.
posted by rushmc at 5:22 PM on December 2, 2002

Rushmc writes: "making it illegal to spit on a bear every other Tuesday" is just silly and harmless is extremely destructive to the validity of our legal system, not to mention intellectually lazy and irresponsible'

I agree, but it gives those whack-whack-whacky pop radio morning drive jocks some zany material.

(cue funny-the-first-200-times austin powers sound bite)
posted by sharksandwich at 5:31 PM on December 2, 2002

Wonderful thoughts from MeFi users on the topic of my Con Law term paper which is due on Thursday! :) Hoorah!

Boltman made an excellent comment on the necessity of addressing the seeming inconsistency of Bowers v. Hardwick with Romer v. Evans...The two decisions are at uneasy odds in their treatment of homosexuals.

Keep the curiosity coming. Constitutional law is horribly relevant and frighteningly pertinent to our emotions/thoughts, isn't it? So fundamental to how we see the world...
posted by superfem at 5:32 PM on December 2, 2002

dash_slot, I think it's because it's easier to prove the insertion of naughty bits by itself rather than the lack of consent.
posted by Pretty_Generic at 5:33 PM on December 2, 2002

superfem: So fundamental to how we see the world...

In my country the only written constitution amounts to "Elizabeth II Dei Gratia Regina Fidei Defensor" on the side of a penny. I don't think I'll ever meet someone who believes that God came down and actually chose Her Majesty to be His one representative of the one absolute truth and faith in this universe. But you never know.

I just, you know, wish our constitution was a bit more fundamentally reflective of how I see the world...
posted by Pretty_Generic at 5:42 PM on December 2, 2002

Pretty_G: it's an incomplete answer to say we brits have no Written Constitution. Though it is not codified, it increasingly is governed by statute: eg, Devolution, Human Rights Act, Laws to reform the House of Lords. Here's a quick guide...

An un-codified constitution...

“The body of laws, customs, and conventions that define the composition and powers of organs of the state and that regulate the relations of the various state organs to one another and to the private citizen” (Hood Phillips, 1978)

Sources of the constitution:
Works of Authority/Statutes/Common Law/Convention/European Union Law/

Pre-Twentieth Century Constitutional Moments:
1215 Magna Carta/1649 Charles I executed - English Republic established/1660 Restoration of the monarchy/1688 Glorious Revolution/1689 Bill of Rights/1832 Great Reform Act/1867 Second Reform Act/1884 Representation of the People Act/

Twentieth Century Constitutional Moments:
1911 Parliament Act/1918 Voting Act/1928 Women voting/1949 Parliament Act/1969 Voting Age lowered to 18/1972 European Communities Act/1998 Devolution Acts (Scotland, Wales and Northern Ireland)/1999 House of Lords Act

The Political Structure :
(Monarch - un-elected)/Prime Minister/Cabinet/Parliament(Commons)/People

Funny how we the people are still at the bottom, in this schene!
posted by dash_slot- at 6:39 PM on December 2, 2002

I just had a flashback to Michael Moore's Sodomobile. In an episode of The Awful Truth, he drove this pink Winnebago full of gay and lesbian couples through all of the states with anti-sodomy laws for some hot law breakin'.
posted by teg at 7:38 PM on December 2, 2002

I'd never heard of these English laws, which indicates their chances of being enforced.

The law against two men having sex with someone else present, which includes group sex, was enforced as recently as 1998.

ROU, RU really saying that the only reason these men were punished was to highlight the illogical nature of the law they had broken? I find that hard to believe.

Not to ``highlight the illogical nature of anything.'' To provide necessary steps along the way towards getting the law overturned as unconstitutional. Test cases aren't just so the public can gawp and say "Oh what a stupid law." They fill in vitally important squares in the judicial process.

You need, first, to have a real case with real people, and the people have to have standing to sue, meaning that they must have been harmed in some identifiable, concrete way (usually). A test case gets you both; it's emphatically not just a PR stunt.

This one may or may not be running as a test case. It's likely that it is, though, given that the DA is on record saying that it's a good way to get rid of a dumb law and given that the few occasions these laws are ``enforced'' are 99.9999% cases of people doing it in public or as part-and-parcel of a larger crime (ie, rape).

Why would they use that law, when there already is a law against rape?

Because they don't have the evidence for rape. Because questions of consent are muddy, or because they don't want to drag the victim through the wringer of cross-examination. All you need to show for a sodomy conviction is that his penis penetrated her anus or mouth, and that's a lot easier to get than a rape conviction. You can always also just pile the sodomy conviction on top of the rape conviction even if you get it, I presume, or just use it as something the accused can plead down to.
posted by ROU_Xenophobe at 7:39 PM on December 2, 2002

That may be about to change.
*Looks at current White House and Congress*
Hmmmmm...

*Looks at previous White House*
Odd that it didn't change already.
posted by MidasMulligan at 7:53 PM on December 2, 2002

Come on Midas, surely you're above petty insults. BTW, yours has a large hole...Clinton's Congress was Republican.
posted by BlueTrain at 8:03 PM on December 2, 2002

FYI, aacheson, the Arkansas sodomy law was struck down this past summer by the state supreme court.
posted by apollonia6 at 9:05 PM on December 2, 2002

I like to watch.
posted by uncanny hengeman at 9:07 PM on December 2, 2002

All you need to show for a sodomy conviction is that his penis penetrated her anus or mouth, and that's a lot easier to get than a rape conviction.

Seems like that would cut both ways, given that the culpability--and therefore the criminality--would be equal for both parties lacking any further evidence of coercion.
posted by rushmc at 10:01 PM on December 2, 2002

rushmc: Sure, but they just don't prosecute the victim. I don't much like the tactic myself, but it's out there.

apollonia6: Getting these sorts of laws struck down on state-constitutional grounds has been a fertile track for a while now. State bills of rights often contain an explicit privacy right, which the federal one doesn't (except by later invention/discovery).
posted by ROU_Xenophobe at 10:10 PM on December 2, 2002

Selective, arbitrary enforcement of laws...yay, democracy!
posted by rushmc at 8:09 AM on December 3, 2002

Some clever person in Houston once proposed that we get as many people as possible to go all at once to turn ourselves in.
posted by SteveL669 at 8:32 PM on December 3, 2002