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.
Skip to background
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
| • 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.
• 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:
| • 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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Regional sources
State by State
• See map, press coverage and background on U.S. sodomy laws compiled by gay rights activist Bob Summersgill.
• Bill Myers of Preble County, Ohio, maintains a list of state sodomy laws, states where state supreme courts have overturned sodomy laws and recent state court decisions.
• Find Christian organizations that are state affiliates of the American Family Association, which supports the Texas sodomy law.
• Lambda Legal is a national organization that works for civil rights for gay men, bisexuals, the transgendered and people with HIV and AIDS. See a listing of state and regional offices and pertinent state and local laws and policies.
• At the pro-gay Human Rights Campaign use the “Select a Location” pull-down menu under “HRC in your community” on the lower left side of the page.
MASSACHUSETTS
• Read a Feb. 21, 2002, Associated Press story on the Sodomy Laws web site. The story says that the Massachusetts Supreme Court refused to throw out two Colonial-era anti-gay sodomy laws but that district attorneys have agreed not to prosecute using the laws except for sexual acts that are committed in public or that are not consensual.
• Contact Charles Fried, Beneficial Professor of Law who teaches constitutional law at Harvard Law School, 617-495-4636, fried@law.harvard.edu, or his assistant, Claire Riley, 617-496-2028.
• Read an amicus brief by Laurence H. Tribe, professor of constitutional law at Harvard Law School, and the ACLU urging the overturn of the Texas law. Contact Tribe at 617-495-4621.
CONNECTICUT
• William Eskridge, John A.Garver Professor of Jurisprudence at Yale Law School, co-authored the Cato Institute’s amicus brief urging the Supreme Court to overturn the Texas law. Contact 212-854-1132 through May 2003; after June 1, call 203-432-9056.
• Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School, authored an amicus brief urging the overturn of the Texas law. Contact 203-432-0065, bruce.ackerman@yale.edu.
NEW YORK
• Contact New York attorney Rena M. Lindevaldsen, counsel of record on the Liberty Counsel’s amicus brief supporting the Texas law, through the Liberty Counsel, 407-875-2100, liberty@lc.org.
• Contact James H. K. Bruner, executive director of the conservative New York Family Policy Council, 518-432-8756.
DISTRICT OF COLUMBIA
• Contact the Institute for Justice, the libertarian public interest law firm opposing the Texas sodomy law, 202-955-1300.
• Contact the Rev. Raymond C. O’Brien at the Columbus School of Law at The Catholic University of America at obrien@cua.edu. He teaches family law and can address the legal ramifications of a decision on gays and lesbians and their families.
• Stephen Wermiel teaches constitutional law, First Amendment, media law and a seminar on the workings of the Supreme Court at American University’s Washington College of Law. Wermiel covered the Supreme Court for The Wall Street Journal from 1979 to 1991. He can discuss the tension between constitutional rules and societal attitudes. Contact 202-274-4263, swermiel@wcl.american.edu.
FLORIDA
• Contact Liberty Counsel attorneys Mathew D. Staver, liberty@lc.org, or Rena Lindevaldsen, RLindevaldsen@lc.org, for information about the Orlando firm’s amicus brief supporting the Texas law, 407-875-2100.
• Professor William E. Adams Jr. at Nova Southeastern University School of Law is the author of “Can We Relax Now? An Essay About Ballot Measures and Lesbian, Gay and Bisexual Rights after Romer v. Evans,” published in the National Journal of Sexual Orientation Law. Contact him at 954-262-6133.
SOUTH CAROLINA
• Contact Henry D. McMaster, South Carolina’s attorney general and party to an amicus brief supporting the Texas law, at 803-734-3970.
VIRGINIA
• Contact Jay Alan Sekulow, counsel for the conservative American Center for Law & Justice, at 202-546-8890 or counsel Walter M. Weber, 703-740-1450. The center filed an amicus brief supporting the Texas law.
GEORGIA
• Attorney George M. Weaver of Hollberg & Weaver, LLP, in Atlanta represents the attorney general of Alabama in supporting the Texas law with an amicus brief. Contact Weaver at 404-760-1116 or Dave Forester, Alabama solicitor general, at 334-353-9782.
LOUISIANA
• The Louisiana Supreme Court refused in March 2002 to overturn the state’s 200-year-old ban on sodomy among gay and straight, married and unmarried people. View a summary of laws affecting gays in Louisiana at Lambda Legal’s site.
• Paul R. Baier, George M. Armstrong Jr. Professor at Louisiana State University’s Paul M. Heber Law Center, taught twice with former Supreme Court Justice Harry Blackmun. Baier hopes that, in ruling on Lawrence v. Texas, the court will overrule the Bowers case and vindicate Blackmun’s dissent. Contact Baier at 225-578-8326, pbaier@lsu.edu.
• Professor John S. Baker Jr. teaches criminal law and constitutional law at Louisiana State University and has argued religion cases. He says he doesn’t think it’s a good idea to prosecute sodomy cases, but he also thinks it’s a bad idea to overturn the Texas law. Contact jbaker@lsu.edu.
MISSISSIPPI
• Contact Stephen M. Crampton, chief counsel at the American Family Association Center for Law and Policy in Tupelo, 662-680-3886.
ARKSANSAS
• The Arkansas Supreme Court overturned the state’s sodomy law in July 2002.
WEST VIRGINIA
• Robert P. George of Charleston is counsel of record for the Family Research Council and Focus on the Family brief filed with the Supreme Court urging the court to uphold the Texas law. Contact 304-344-5800.
OHIO
• Contact Lawrence Kurdek, professor of psychology at Wright State University in Dayton and noted researcher of gay and lesbian family issues, 937-775-2982.
• In 2002 the Ohio Supreme Court ruled in State vs. Thompson that a state law criminalizing expressions of sexual interest between people of the same sex was unconstitutional.
KANSAS AND MISSOURI
• Dick Kurtenbach, executive director of the ACLU of Kansas and Western Missouri in Kansas City, Mo., says he believes the fact that the Supreme Court took the case indicates it may overturn the Texas statute. Contact him at 816-756-3113.
• Professor Douglas O. Linder is a constitutional law specialist at the University of Missouri-Kansas City Law School and creator of the Exploring Constitutional Conflicts web page. Contact him at 816-235-2375, linderd@umkc.edu.
• Read an April 2, 2002, St. Louis Post-Dispatch article, republished at sodomylaws.org, about how the arrests of six men in Jefferson County for having gay sex at a pornographic video store raised questions about the confusing wording of the state’s sodomy law. Prosecutions are still pending.
• Contact Jefferson County assistant prosecutor Michael Ravetta at 636-797-5321. Contact Richard Sindel, lawyer for some of the men charged, at 314-721-6040, rsindel@sindellaw.com. Contact Denise Lieberman, legal director of the American Civil Liberties Union of Eastern Missouri, which is representing some of the men, 314-361-2111.
• Read a Jan. 23, 2003, Kansas City Star story, republished at sodomylaws.org, describing the unsuccessful effort of Kansas City attorney Darrell L. Smith to appeal a client’s criminal conviction for sodomy before the Kansas Supreme Court.
• Contact the Kansas Lesbian, Gay, Bisexual and Transgendered Democratic Caucus, a lobbying group. Steve Brown, president, 913-648-4459 (home), 913-219-4459 (cell), slbrownks@earthlink.net, or Mike Silverman, vice president, 785-550-8766, mike@mikesilverman.com.
ILLINOIS
• Call Northbrook, Ill., attorney Paul Benjamin Linton, counsel for United Families International in that organization’s amicus brief supporting the Texas law, 847-291-3848. The Texas statute, Linton says, doesn’t violate the equal protection clause of the Constitution because it discriminates not on the basis of sexual orientation but on conduct.
INDIANA
• Gerard V. Bradley at Notre Dame Law School is counsel for the Family Research Council and Focus on the Family in their amicus brief to the Supreme Court urging the court to uphold the Texas law. Contact Bradley at 574-631-8385.
ARIZONA
• Contact Len L. Munsil at the religious-based Center for Arizona Policy in Scottsdale, a supporter of the Texas law, 480-922-3101.
TEXAS
• Contact Laura Parker at the Justice Foundation, which supports “limited government, free markets, private property and parental rights,” 210-614-7157.
UTAH
• Mark L. Shurtleff, Utah attorney general, took part in an amicus brief supporting the Texas law. Contact press aide Paul Murphy, 801-538-9600.
MONTANA
• The Montana Supreme Court overturned the state’s sodomy law in 1997, but the statute is still on the books. Montana’s Legislature is considering HB 294, which would remove the law from the state’s criminal code.
WASHINGTON
• Contact sociologist and sexual health expert Professor Pepper Schwartz at the University of Washington, 206-543-4036, couples@u.washington.edu.
CALIFORNIA
• Contact UCLA Law School Professor William Rubenstein, expert in sexual orientation law and widely published scholar on the field, at 310-206-7145, rubenste@law.ucla.edu.
• Contact the Citrus Heights-based Pacific Justice Institute, a legal defense organization defending “religious freedom, parental rights and other civil liberties,” 916-857-6900.
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