Now in Legal Rebels:
Posted Jun 01, 2012 06:00 am CDT
On Sept. 17, 1998, four Harris County officers bounded into John Lawrence’s Houston-area apartment in response to a call that a black male was inside “going crazy with a gun.” What they actually witnessed remains unclear, but two men were arrested and charged under a 1974 Texas homosexual sodomy law: a drunk and defiant Lawrence and his acquaintance, Tyron Garner.
In 1986, a bitterly worded 5-4 U.S. Supreme Court decision in Bowers v. Hardwick had upheld a Georgia law criminalizing all forms of sodomy. Though the 1816 statute made oral and anal sex equally illegal for heterosexual couples, the Bowers court endorsed the authority of state legislatures to outlaw homosexual conduct. “To hold that the act of homosexual sodomy is somehow protected as a fundamental right,” Chief Justice Warren Burger had written, “would be to cast aside millennia of moral teaching.”
But sensing a shift in public sensitivities, gay rights advocates saw a rare opportunity to cast aside Bowers. Urged to do so, Garner (left) and Lawrence (right) pleaded no contest, which focused their appeals on a right to private intimacy and the unequal application of the Texas law. In Lawrence v. Texas, a 6-3 majority overturned Bowers as an unworthy precedent. Wrote Justice Anthony M. Kennedy: “Bowers was not correct when it was decided, [and] is not correct today.” —Allen Pusey