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HOUSTON – John Lawrence and Tyron Garner could be called accidental activists.
More than four years ago, police burst into Lawrence’s apartment sent there by a bogus report of an armed intruder to find the two men engaged in consensual sex. The pair was jailed overnight and charged with breaking Texas’ Homosexual Conduct Law, which bans oral and anal sex between people of the same gender.
These days Lawrence and Garner keep a low profile, but their case challenging the Texas statute and by extension, sodomy laws in 12 other states has made it all the way to the U.S. Supreme Court.
Gay-rights activists regard Wednesday’s arguments as one of the most important legal challenges for decades: In 1986, the high court upheld a now-defunct sodomy law in Georgia. To the Texas government and its allies, the case is about the right of states to promote the moral standards of their communities.
“It’s one more battle, one more step,” said Annise Parker, the only openly gay member of the Houston City Council. “I think there will be a huge celebration if we win it.”
The men’s arrest in September 1998 attracted relatively little attention, and they declined through attorneys to be interviewed. But from the start, they felt their arrest was unfair.
Garner said in court in 1998 that he hoped the law would change and, “I feel like my civil rights were violated and I wasn’t doing anything wrong.” Lawrence called his arrest “sort of Gestapo.”
But once they pleaded no contest and each paid $200 fines, Lawrence and Garner faded out of public view.
“These are people who were arrested in their bedroom,” said Patricia Logue, an attorney with the Lambda Legal Defense & Education Fund, which has handled the case since early on. “They never chose to have that invasion of privacy. This is something they believe in, of course, but it’s not a battle they chose.”
Logue and the men’s other attorneys contend the Texas law is unconstitutional for two reasons: it authorizes impermissible intrusion into citizens’ private lives and it violates the Equal Protection Clause by criminalizing certain behavior only for same-sex couples, not for heterosexuals.
But William Delmore III, an assistant district attorney in Harris County, said the high court should leave it to Texas lawmakers and other state legislatures to tackle the issue.
“We feel pretty comfortable that while legislatures are free to repeal statutes of this kind – and that’s a completely appropriate exercise of democracy – legislatures should remain free to act on principles of morality and retain statutes that are intended to public morality,” Delmore said.
He contends the Texas sodomy law doesn’t target gays and lesbians the way segregation laws targeted racial minorities before the high court intervened in 1954 to strike down the “separate but equal” precedent.
“As long as we continue to believe that gambling, prostitution and private drug use should remain subject to governmental regulation and prohibition, I think we’re still considering morality an appropriate basis for governmental action,” he said.
But many gays and lesbians feel there are singled out for discrimination in employment, custody and adoption when sodomy laws allow them to be labeled habitual criminals.
Texan Connie Moore, a lesbian who runs a small law practice with her partner, is outraged by the statute. The idea that she could be considered a criminal “because I loved a ‘her’ instead of ‘him'” just doesn’t cut it, she said.
As recently as 1960, every state had a sodomy law. In 37 states, the statutes have been repealed by lawmakers or blocked by state courts.
Of the 13 states with sodomy laws, four – Texas, Kansas, Oklahoma and Missouri – prohibit “deviate sexual intercourse,” or oral and anal sex, between same-sex couples. The other nine ban consensual sodomy for everyone: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.
Various groups have filed briefs with the high court either supporting or opposing the Texas law.
Supporters include several states with sodomy laws on the books and conservative groups, including the American Center for Law and Justice, which is affiliated with the Rev. Pat Robertson; Focus on the Family; and the Family Research Council.
“For homosexual activists, this case is their Supreme Court Super Bowl – the next step in their pursuit of same-sex marriage,” said Jan LaRue of Concerned Women for America, which joined those filing briefs supporting the Texas law.
Opponents include the American Bar Association, historians, the NOW Legal Defense and Education Fund and libertarian organizations, such as the Cato Institute and the Institute of Justice.
A brief filed by the Human Rights Campaign and other gay-rights groups evoked Mark Bingham, a gay man believed to have been among passengers who fought terrorists aboard United Flight 93 before it crashed in a Pennsylvania field on Sept. 11, 2001.
“To his country, Mark Bingham is a hero; in Texas, he is a criminal,” the brief said.