TMQH: Lawrence v. Texas (2003)

Lawrence v. Texas (2003) functionally decriminalized gay life in the US by overturning the anti-sodomy statutes of 13 states, including Texas, but it was argued on similar grounds to Roe v. Wade, making its future tenuous. In this episode of TMQH, we bring you a run-down of the fascinating facts of the case and what we can do to ensure that it stays on the books.

Special shout out to You're Wrong About, who coincidentally also put out a two-part series this month on Lawrence v. Texas! This episode of TMQH was planned and produced prior to their episodes dropping, but if you listen to both our episode and theirs, you'll hear why both of us felt this was a necessary piece of history to address right now. Go give their episodes a listen if you want the full details of what happened the night of the arrest and how both John Lawrence and Tyron Garner were impacted by this case. You can find You're Wrong About on Spotify and Apple Podcasts.

Sources/Further Reading:
https://docs.google.com/document/d/1ChjBsfVbqs0ryLFYxZKttwANDjbCb1a4r8D7nPcgNrI/edit?usp=sharing

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Transcript

On September 17th, 1998, John Lawrence and Tyron Garner were arrested under Texas law 21-06, a sodomy statute. A little less than 5 years later, on June 26th 2003, they would win their case at the Supreme Court and functionally overturn all sodomy laws in the United States. Now, there's talk of this case potentially being overturned. This is why.

Prohibitions on sodomy have been around for hundreds of years in the U.S. Definitions varied, but the vast majority included, implicitly or explicitly, sexual contact between men, and more specifically anal sex. In 1998, 13 states in the US still had statutes prohibiting sodomy on their books, and even if arrests were rare, it effectively criminalized gay people and gay life, giving police broad authority to arrest and brutalize so-called sex criminals. 

The night of the arrest, John Lawrence and Tyron Garner were in Lawrence's apartment when the police broke in and arrested both of them, along with an acquaintance who also happened to be at the apartment that night. The police were responding to a false report from Robert Eubanks, Tyron's white off-and-on boyfriend, of a "black male going crazy with a gun,” referring to Tyron. The police claimed in their report that Lawrence and Garner were having sex when they broke in, but both men denied this, saying that they were just hanging out in the apartment. The reports from the different police officers at the scene that night varied wildly, casting even more doubt on the police officers’ story.

Lawrence and Garner would initially plead not guilty at their arraignment the next day, and were released pending a second arraignment. A clerk at the police station saw the report, and he and his boyfriend, a police officer, told their friend, a bartender at their favorite gay bar, of the arrest. That bartender was Lane Lewis, a local gay rights activist in Houston. 

Lewis, through his personal ties to attorneys Mitchell Katine and Ray Hill, would connect Lawrence and Garner to Lambda Legal, a gay legal organization. Lambda Legal decided to take up their case, which was seen as risky at the time, as it had only been 12 years since the Supreme Court case Bowers v. Hardwick, in which the Supreme Court (the high court)  affirmed the constitutionality of sodomy statutes. Lambda Legal saw the potential for this to be a test case to see if they could get Bowers overturned. 

Because sodomy charges were relatively rare at this time, they felt they had to take the chance on this case. Under the advice of Lambda Legal, Lawrence and Garner pled no contest to the charges, allowing them to both avoid any admission of guilt and appeal the decision on constitutional grounds. Both men agreed to take it up to the Supreme Court for the good of others, despite being private individuals with no history of activism or desire for the limelight. In fact, much of Lambda Legal's work was in media management of the case. They wanted the focus not on the two men but on the malfeasance of the police and the justice system. 

The case for unconstitutionality made by Lambda Legal was two-fold: first, that it was a violation of equality under the law, which is a part of the due process clause of the 14th amendment. They initially argued in state court that this was based on sex-based discrimination, but they decided to drop this argument for their filing at the Supreme Court because the idea that gay discrimination was a form of sex-based discrimination had not been broadly accepted by courts at the time. And so they argued that it failed the test of rational basis under the due process clause, meaning that the state had no rational reason for making private, consensual sex between same-sex adults illegal.

Their second argument was that the sodomy statute violated their clients’ right to privacy. This was rejected by the court in Bowers v Hardwick, but Lambda Legal reasoned that their interpretation in Bowers was inconsistent with the precedent set out in Griswold v. Connecticut and Roe v. Wade, the Supreme Court cases that legalized birth control and abortion, respectively. Their claims were rejected by the appellate Court in Texas and in 2002 they were granted writ of certiorari by the Supreme Court of the United States. Along with their due process and right to privacy arguments, they claimed that Bowers v. Hardwick was outdated and out of touch with Americans' views on gay people. After all, only 13 states had sodomy laws still on their books. And in 2003, in the midst of Pride month, the decision was handed down: they won. All sodomy statutes were now invalid in the eyes of the law, overturning Bowers v. Hardwick. The decision was made on substantive due process and right to privacy grounds, although notably, not on equal protection grounds. It was decided six to three with Justice Kennedy writing the majority opinion. Justice Scalia wrote a dissent and read it out loud in the courtroom, which was unusual. His dissent was vitriolic and homophobic, but ironically, it did in fact predict that this case would be used as a basis for why gay marriage should be legal in the United States. 

While this case was undoubtedly a victory for the lives of gay people, there was an issue that activists and legal scholars pointed out at the time. This decision overturned sodomy laws but it did not confer a positive right to private consensual gay sex acts, meaning that should it ever be overturned, there's little stopping legislators from putting sodomy statutes back on the books. Now, these laws are likely to be challenged under anti-discrimination statutes, but legal battles take years, and in the meantime the state would once again have legal grounds to harass, arrest, and criminalize gay people. And to be clear, there is talk of it being overturned. Justice Clarence Thomas also wrote a dissent in this case, which got less media attention than Scalia's, but both dissents challenged the right to privacy grounds set forth in this case. In the recent case Dobbs v. (Jackson), which overturned Roe v Wade, right to privacy was found to be an insufficient argument to protect abortion rights. 

Now, not all hope is lost, as to overturn Lawrence they would also need to invalidate the due process argument. But, if we can learn anything from Dobbs, it is that we cannot become complacent with settled law. We need more than just a ban of prohibition - we need affirmative rights to live our lives as queer people. I'll be carrying that with me when I vote in November, and I hope you will too.

Thank you for joining us for the fifth episode of This Month in Queer History. Take care, and join us next month for our sixth episode all about the history of anti-trans bathroom bills.