Sodomy and the Supremes: Legal Expert David J. Garrow Counts the Potential Votes in the Upcoming Supreme Court Decision on Sodomy Laws. (Cover Story)

Article excerpt

It's been more than four years since John Lawrence and Tyron Garner were arrested and charged with violating Texas's Homosexual Conduct Law, which prohibits "deviate sexual intercourse"--anal or oral sex--between people of the same sex. Now their challenge to that law, rejected by a local judge and twice turned aside by Texas appellate courts, is before the U.S. Supreme Court, which will hear arguments March 26.

Lawrence v. Texas confronts the nine justices with an obvious equal protection challenge to the law: How can Texas criminalize anal and oral sex for same-sex couples only, not for heterosexuals? Yet Lawrence also invites the justices to revisit, and perhaps reverse, the court's infamous 1986 decision in Bowers v. Hardwick, where a narrow 5-4 majority--including the late Justice Lewis F. Powell Jr., who subsequently expressed regret for his vote--upheld traditional antisodomy statutes.

Only 13 states and Puerto Rico still criminalize any private, consensual, adult sex. Nine of those--Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, and Virginia--retain old-fashioned antisodomy statutes that ostensibly apply to gays and straights alike. But four others--Texas, Kansas, Missouri, and Oklahoma--apply their criminal penalties only to same-sex conduct. Texas altered its law in 1974 to decriminalize heterosexual sodomy, and local prosecutors energetically defend the state's prosecution of Lawrence and Garner. "There is plainly a rational distinction to be made between heterosexual and homosexual conduct," they argue.

Lawrence and Garner's lawyers, led by Ruth E. Harlow of the Lambda Legal Defense and Education Fund, strongly disagree. "Petitioner Lawrence would not be guilty of a criminal offense if Petitioner Garner were a woman rather than a man (and vice versa)," Harlow noted in Lambda's first petition to the Supreme Court.

When the justices agreed early last December that they would hear the case, many observers said the court would not take up the issue unless a majority of the justices was ready to void the Texas law. But while five votes are necessary to win, as few as four votes can suffice to accept a case, according to the rules that govern the justices' private deliberations. …


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