Talking Points on LAWRENCE v. TEXAS     2/25/2003
By Jan LaRue, Esq.

This case before the U.S. Supreme Court is about much more than same-sex sodomy.

BACKGROUND:

In this case, police officers responded to an anonymous phone call about a "crazy man with a gun." When the officers arrived on the scene, they were directed to an apartment with an unlocked door where police officers found two men engaged in sodomy. The men were arrested and plead "no contest" to charges of violating Texas Penal Code §§2106 and 21.01. § 21.06 states: "Homosexual Conduct: (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misdemeanor." Tex. Pen. Code § 21.01 states: "(1) 'Deviate sexual intercourse' means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object."

The men appealed their convictions as a violation of the Texas and U.S. Constitutions, claiming that the statute violates equal protection and privacy. The Texas Court of Appeals ruled against them, 41 S.W.2d 349 (Tex. App. 2001). They appealed to the U.S. Supreme Court, which will hear oral argument in the case on March 26 and issue a ruling by the end of June 2003. The men are also asking the Court to overturn its decision in Bowers v. Hardwick, a 1986 case in which the Court upheld Georgia's sodomy law against an equal protection challenge. The Court held that there is no fundamental constitutional right to engage in homosexual sodomy. The Georgia law criminalized both opposite-sex and same-sex sodomy. The Texas statute criminalizes only same-sex sodomy.

TALKING POINTS

· This case is about much more than same-sex sodomy. If a state cannot prohibit same-sex sodomy, the next case will argue that the states cannot prohibit same-sex marriage.

· The people of Texas have the right under the Tenth Amendment to the U.S. Constitution to enact and enforce these statutes. No court should strike down an otherwise constitutional law just because the court doesn't like the law. If the people of Texas don't want the laws, they can repeal or amend them.

· The statutes are directed at conduct pure and simple. They do not discriminate on the basis of sexual orientation, sex or "gender." They are enforceable against two women and two men regardless of their "orientation." Nothing in the record indicates the men would not have been arrested if the officers had thought they were heterosexuals. Nothing in the record indicates that at the time of the arrest, the officers knew that the men are homosexuals.

· Heterosexuals are known to experiment with "homosexual" conduct, especially when in prison, for example. Individuals who claim to be bisexual do so quite commonly.

· The statutes do not violate a fundamental right of privacy, which the Supreme Court has limited to "the home, the family, marriage, motherhood, procreation, and child rearing."

· Homosexuals are not a suspect class entitled to heightened protection under the 14th Amendment because homosexual conduct is not an immutable characteristic such as race, alienage or ancestry.

· Homosexuals who have tremendous political, cultural and economic power do not meet the criteria of a suspect class.

· If the Court were to grant suspect status on the basis of sexual conduct or orientation, it would open the door to other groups making the same claim based on their sexual "orientation," such as pedophilia.

· Protecting public health, safety and morals is what the Court would consider to be a "rational," if not "compelling," reason to prohibit "same-sex deviate" sexual intercourse.

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