Justices to hear challenge to Texas' gay sodomy ban

By Charles Lane
Washington Post
Dec. 3, 2002

WASHINGTON - The Supreme Court agreed Monday to hear a Texas gay couple's challenge to that state's ban on homosexual sodomy, setting the stage for what could be a landmark ruling on gay rights.

The question of whether states may criminalize private consensual sexual conduct between members of the same sex apparently had been settled in 1986, when the court ruled 5-4 that the Constitution permitted Georgia to punish a gay man for violating its sodomy statute.

But Monday's announcement by the court, whose personnel has changed considerably since 1986, appears to suggest interest by at least some justices in reassessing that ruling. In their appeal petition, lawyers for the Texas couple urged the court to overturn the 1986 decision, which held that privacy rights did not include homosexual sex.

Though the number of states with sodomy laws that apply to all people has declined to 13 from 24 since 1986, and only four states - Kansas, Oklahoma and Missouri in addition to Texas - have laws that criminalize only homosexual sex, both proponents and opponents of the Texas law are treating the case as one of potentially major significance.

The court agreed to hear the case of John Geddes Lawrence and Tyron Garner, who were arrested in 1998 by Harris County sheriff's deputies who came to their apartment in response to a false report of "an armed man going crazy," and found them engaged in sex. They were charged with deviate sexual intercourse, convicted and fined $200.

The two men argue that Texas' enforcement of its Homosexual Conduct Law violates both their right to privacy and their constitutional right to equal treatment by the state because it penalizes certain private sex acts only when they are committed by same-sex couples, but not by heterosexuals.

Arguments are set for March and a decision is expected by July.