JUNE
11, 2003
U.S. SUPREME
COURT
A guide to covering
the sodomy state law decision
 The
U.S. Supreme Court is poised to announce this month its decision in Lawrence
v. Texas, expected to be a landmark ruling on the constitutionality of state
sodomy laws. At issue is whether state laws banning consensual sodomy between
people of the same sex violate homosexuals' right to privacy or equal protection
under the law.
The case is among
the most contentious of the court's term and comes at a time when homosexuality
has been hotly debated in public policy issues including marriage, adoption,
health coverage and hate crimes. The high-profile debate that followed comments
by U.S. Sen. Rick Santorum, R-Pa., showed that many Americans are comfortable
with public condemnations of homosexuality. Meanwhile, polls
have shown that a majority of Americans oppose state laws regulating consensual
sex between gay or lesbian adults in private homes, regardless of their views
of whether homosexual activity is right or wrong.
The ruling could
have wide-ranging effects. Once, all states banned consensual sodomy. Now, just
four ban sodomy between people of the same sex, and nine more ban it for everyone.
The Supreme Court last visited the issue in 1986, when it upheld a Georgia statute
in ruling that there is no fundamental right to engage in homosexual acts and
that the prohibition of sodomy was reasonably related to the legitimate objective
of preserving morality.
The Texas case
involves two men who were arrested in 1998. They were found having consensual
sex when police entered an unlocked apartment to investigate an unfounded complaint
of a weapons disturbance. The men were charged with a misdemeanor under a 120-year-old
law, and each paid a $200 fine. The convictions were overturned by a panel of
the state appeals court, but the full court reversed the ruling. The Texas Court
of Criminal Appeals refused to hear the case.
Questions for
reporters
• How will
the ruling affect the remaining state sodomy laws? Might it affect other laws
as well?
• What do legal experts and advocates of opposing views of gay rights say
are the intended consequences of the ruling? What might be the unintended consequences?
• What do religious groups - whether they support or criticize the ruling
- say they plan to do in reaction to it? What do clergy in your area say?
• Many religious denominations include both factions that support an expansion
of gay rights and groups that believe homosexuality is condemned by the Bible.
How do these groups say the ruling will affect debates within their denominations?
• How does the ruling affect the continuing debate in America over what
constitutes a family or a marriage? Does it give momentum to any particular
point of view?
• How might the ruling affect other efforts to legislate public morality?
Why it matters
The issue of gay
rights is one of the most divisive in the country, and many Americans' views
are shaped by their religious beliefs. Many conservatives see their fight to
retain the Texas sodomy law as symbolic of a larger battle to prevent the legalization
of gay marriage and what they see as the breakdown of traditional values. For
other people of faith, the case is a measure of progress in a civil rights battle
they consider as important as that of blacks in the 1960s.
On a more concrete
level, sodomy laws have been used as the basis for denying gay parents custody
in divorce, adoption and foster cases and for job terminations. Prosecutors
in sexual assault cases will occasionally offer a defendant a plea bargain to
a lesser sodomy charge when they are unsure whether they can get a conviction.
Conviction on a sodomy charge can bar a person from employment in some dozen
licensed professions and requires registering as a sex offender for those living
in Idaho, Louisiana, Mississippi and South Carolina.
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the map for interview sources
in your state and region
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National sources
Legal
sources
•
The Charles
R. Williams Project on Sexual Orientation Law at UCLA School of Law is a
new think tank encouraging objective scholarship about sexual orientation. Contact
R. Bradley Sears, 310-267-4382, WilliamsProject@law.ucla.edu.
• Houston prosecutor William J. Delmore III, chief of the appellate division
of the Harris County district
attorney's office, has said that the Texas law prohibits not gays but homosexual
conduct and so it applies equally to both men and women, gay and straight. Contact
him at 713-755-5826.
• Governments can protect citizens from the social effects of even private
activity, as with helmet laws and seat belt laws, according to Gary Kreep of
the United States
Justice Foundation. Kreep says that if the Texas law is struck down, states
- depending on the wording of the decision - could find themselves hampered
by privacy protection considerations and unable to protect citizens from the
spread of AIDS. Contact Kreep in Escondido, Calif., at 760-741-8086.
• Contact Kevin Layton, general counsel and legal director of the Human
Rights Campaign, a gay rights group, by reaching Mark Shields, associate director
of communications, at 202-216-1564, mark.shields@hrc.org.
• For a history of 19th century sodomy laws and the movement overturning
them, read an amicus
brief by the libertarian Cato
Institute urging the court to strike down sodomy laws because they violate
the right to privacy, due process and equal protection. Contact Roger Pilon,
director of Cato's Center
for Constitutional Studies, at 202-789-5200 or counsel Robert A. Levy at
202-842-0200.
• Deb Price writes a syndicated column about gay and lesbian issues for
The Detroit News. She and Joyce Murdoch, politics managing editor at
the National Journal, co-authored Courting Justice: Gay Men and Lesbians
v. the Supreme Court (Basic Books, 2002). Reach Price at 202-662-7384, dprice@detnews.com,
and Murdoch at 202-739-8421, jmurdoch@nationaljournal.com.
• Ruth Harlow, legal director for Lambda Legal, is lead attorney for the
two men charged under the Texas law. See the Web
Resource Center or call Lambda communications director Eric Ferrero, 212-809-8585,
ext. 227, EFerrero@lambdalegal.org.
• Paul Benjamin Linton, counsel for United
Families International, calls Lawrence v. Texas a "stalking
horse" meant to erode legal barriers to gay marriage. If the court were
to find it "irrational" to distinguish legally between homosexual
sex acts and heterosexual sex acts, he says, then the ground may be laid to
claim that there is no rational distinction between heterosexual marriage and
homosexual marriage. Contact 847-291-3848.
• The American Civil Liberties Union brought a challenge to Georgia's sodomy
law that was upheld by the Supreme Court in 1986. The ACLU filed an amicus brief
in the Lawrence case urging the Court to overturn its decision in Bowers.
James Esseks is the litigation director for the ACLU Lesbian & Gay Rights
Project. Contact Paul Cates, Director of Public Education for the project, (212)
549-2568 for an interview.
Religious
sources
• Focus on the Family
filed an amicus
brief with the Family Research
Council supporting the Texas law. Contact Focus on the Family's public policy
information manager Julie Neils at 719-548-4634.
• Find
a list
of a dozen organizations, some of them religious, with web links to the amicus
briefs they filed supporting the Texas law. The list is in an article by the
Alliance Defense Fund, which supports the law. Contact alliance spokesman Richard
K. Jefferson: 480-444-0020.
• Read an article
at Charisma Online discussing how a dozen-plus mostly Christian groups filed
amicus briefs supporting the Texas law.
• Reconciling
Ministries Network is a national grass-roots organization that works for
full participation of all sexual orientations and gender in the United Methodist
Church, the nation's largest mainline Protestant denomination. The network joined
an amicus brief urging the overturn of the Texas statute. The group is particularly
interested in refuting the state's justification of the statute on religious
grounds, says board member Frank Staggs. The brief asserts that there is no
unanimous religious view of the conduct involved and that the religious traditions
discussed do not support criminalizing the conduct, he says. Contact Staggs
at 713-651-3000, frank_staggs@jamail-kolius.com.
• The United Church of Christ has been ordaining gay members since 1973.
The denomination is party to an amicus brief urging the court to overturn the
Texas statute. American society is "schizophrenic" about sexuality,
with a flourishing pornography industry on one hand and a "conservative
social veneer" on the other about consensual sex among adults, says the
Rev. Lois Powell, minister and team leader in UCC's Justice and Witness Ministries.
National press contact is Ron Buford, 216-736-2180, bufordr@ucc.org.
• Soulforce is an interfaith organization that advocates for the rights
of gay, lesbian, bisexual and transgendered people. The sodomy laws are religion-based
discrimination, says communications director Laura Montgomery Rutt. Contact
717-278-0592, soulforcemedia@aol.com.
Background
The last year sodomy
was illegal throughout the continental United States was 1951. In the intervening
years, 35 states (Arkansas was the most recent, last year) and the District
of Columbia have repealed sodomy laws. Now, just four states - Texas, Oklahoma,
Missouri and Kansas - ban sodomy between people of the same sex. Nine others
- Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina,
Utah and Virginia - ban consensual sodomy for everyone.
•
Read the unedited April 7, 2003, Associated Press interview
with U.S. Sen. Rick Santorum about Lawrence v. Texas posted at MSNBC.com.
About
Lawrence
v. Texas
•
Find a list
of hotlinks of all amicus briefs in Lawrence v. Texas, including
those supporting and opposing the Texas law, along with links to other pertinent
court decisions and questions at FindLaw's Supreme Court Web site. Information
on Lawrence v. Texas appears about halfway down the page.
• Alabama Attorney General Bill Pryor, whom the president has nominated
to the United States Court of Appeals for the 11th Circuit, was the lead writer
in a brief
supporting the Texas law. The brief likens the law's treatment of gay sex to
other "private consensual adult sexual activity, such as polygamy."
• Texas repealed its anti-sodomy law for heterosexuals in 1976.
• The Texas Penal Code defines "deviate sexual intercourse" as
"any contact between any part of the genitals of one person and the mouth
of or anus of another person" or "the penetration of the genitals
or the anus of another person with an object."
Related
Supreme Court cases
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•
1986 Bowers
vs. Hardwick: The last time the Supreme Court considered the subject
of sodomy laws, it let a Georgia sodomy statute stand. (The Georgia high
court struck down the statute eight years later.) The court decided, 5-4,
that there is no fundamental right to engage in homosexual acts and that
the prohibition of sodomy was reasonably related to the legitimate objective
of preserving morality.
• 1996 Romer
vs. Evans: In a Colorado case, the Supreme Court struck down Colorado's
Amendment 2, which prohibited cities and counties from enacting ordinances
that extend civil-rights protections to gays and lesbians.
• Boy
Scouts of America vs. Dale: In 2000, in a 5-4 majority, the Supreme
Court supported the Boy Scouts of America's right to dismiss gay leaders.
The Scouts have a right to define their own basis for membership, the court
said. |
• Just three
of the justices who voted in the 1986 Georgia case remain on the court: John
Paul Stevens, Sandra Day O'Connor and William Rehnquist.
Polls
•
A May 15, 2003, Gallup
Poll found that six out of 10 Americans say homosexual sex should be legal,
the highest level since Gallup began polls on the topic in 1977.
• A May 22, 2003, poll
by Quinnipiac University in Pennsylvania found that 58 percent of the state's
voters say homosexual sex is morally wrong but that 45 percent say it should
be legal. Santorum's approval rating among voters was 55 percent - the same
as before his comments about homosexuality were made public.
• A May 6, 2003, poll
by New Witeck-Combs/Harris Interactive Research found that 87 percent of Americans
oppose state laws regulating private sexual relations that are applied to opposite-sex
married adult couples and 82 percent oppose such laws that are applied to same-sex
adult couples in a domestic partnership. The site includes tables that break
down results of the poll of 2,000 adults according to political party, gender,
region, age, sexual preference and other factors.
Equal
protection: key concepts
•
Read the annotated
text of the 14th Amendment to the U.S. Constitution guaranteeing rights,
privileges and immunities of citizenship, due process and equal protection.
• Lawyers for Lawrence and Garner attack the Texas statute on two principles:
due process (including privacy) and equal protection. Equal protection doesn't
mean that the government must treat everyone identically, but that most people
must be treated the same, given similar circumstances. The Supreme Court uses
a three-tiered approach to analyze whether a law violates the equal protection
clause of the 14th Amendment. Read about these levels of scrutiny here.
Since laws often classify people and give or withhold benefits accordingly (for
example, states let 16-year-olds drive, but not 10-year-olds), the court uses
one of three tests:
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• Strict
scrutiny: If a law pertains only to a "suspect class" -
for example, people of a certain race - it is presumed invalid. (So far,
neither the Supreme Court nor any federal court of appeals has held that
gays belong to a "suspect class." Nine appeals courts have denied
such claims.) The defender must show that this is the "least restrictive"
way of promoting a "compelling" governmental purpose, a standard
seldom met.
• Heightened (or intermediate) scrutiny: The court uses this
test if it finds that the law establishes a suspect class based on gender
or unmarried parentage. To survive this test, a law must have a substantial
relationship to an important government objective.
• Relaxed or rational scrutiny is the test applied to all
other classifications. A law is presumed valid and will be upheld if it
has any reasonable relationship to a legitimate governmental purpose,
stated or not. It is difficult, but not impossible, to strike down a law
using this standard. In Romer vs. Evans, however, the court overturned
a Colorado amendment outlawing civil rights protections for gays and lesbians,
declaring that there was no rational basis for the law.
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