The landmark U.S. Supreme Court ruling in Lawrence v. Texas sent shock waves around the country and will undoubtedly stand as one of the most important civil rights victories in history. But the case almost never happened.
John Lawrence and Tyron Garner--who were arrested in September 1998 after officers found them having sex in Lawrence's Houston apartment--didn't originally plan to take legal action, says Mitchell Katie, the openly gay Houston lawyer who first represented the men.
"John and Tyron were handcuffed and taken down a flight of stairs and put into the police car in a way that they felt was very rough and got them very angry," he says. "Had they not been handled that way, they tell me, they would have never called a lawyer."
Police entered Lawrence's apartment on a false report to the police of an armed intruder. "These are not guys who've been in politics," Katine says. "They didn't know what was going on. This could have been a little $200 ticket."
The men spent more than a day in jail, paid their fine, then had a friend call Katine to see if he'd represent them. "In my 17 years practicing law, representing gay and lesbian people, I had never heard of anybody who'd been arrested and charged with this crime," he says. Texas's sodomy law--passed in 1860--was amended in 1974 to remove heterosexual anal and oral sex, making Texas one of four states with sodomy laws applying only to gay people.
Lawrence became a five-year legal battle, ending up as one of the 2% to 3% of cases appealed to the U.S. Supreme Court that are heard by the justices. Even more rare, the decision reversed a previous Supreme Court ruling-1986's Boozers v. Hardwik. Legal experts say Lawrence--a truly watershed victory--was won through stealthy legal maneuvers, changing social views, and a little luck.
Back to 1998. Katine immediately called lawyers at the Lambda Legal Defense and Education Fund in New York City, who began to plan strategy for the case. Legal challenges to other states' sodomy laws dining the 1990s had methodically set the stage for a showdown in the Supreme Court. The lawyers soon realized Lawrence could be the case they were waiting for.
"The case could not have come at a better time: when we were 'already in the midst of a strategic challenge to sodomy laws nationwide," says Suzanne Goldberg, an out lesbian who was a lead Lambda attorney on Lawrence before leaving for Rutgers University's law school in 2000, where she is now an associate professor. "The case offered a perfect example of how the sodomy laws empowered the states to invade the privacy of a person's home to prosecute for consensual sex."
Lambda's lawyers deemed Lawrence a "clean case," meaning the two men had not engaged in other illegal activity. They were consensual adults and were not having sex in a public place. There were no drug or alcohol charges. Neither of the men resisted arrest. They had simply violated the Texas sodomy law.
Something else caught the lawyers' attention. The Texas district attorney who prosecuted the case could have dropped the charges against Lawrence and Garner, making it impossible for Lambda's lawyers to challenge the sodomy law, but he didn't. In addition, the Texas state's attorney's office didn't intervene, indicating their side or the case might be constitutionally weak.
Lambda immediately had to decide if they wanted to directly challenge the Supreme Court's ruling in the 1986 Bowers case--a ruling that infuriated gay rights supporters, "In the Hardwick case, the court ruled 5 to 4 that gay people could be shut out of the right to privacy, because the court said there is no connection between gays on the one hand and family, parenting, and marriage on the other," says Evan Wolfson, the openly gay director of Freedom to Marry, a New York City--based group working for full gay marriage rights.
But nearly 17 years later, gay people had made significant civil rights strides in legal cases and in the court of public opinion. …