JUNE 23, 2003
In the next two weeks, the Supreme Court will rule, in Lawrence v. Texas, on the constitutionality of Texas's law criminalizing consensual homosexual sodomy. The case involves the arrests and convictions of John Lawrence and Tyron Garner, who were discovered having sex in Lawrence's bedroom when police responded to a false report by a neighbor that a man was "going crazy" in the apartment. The two men were arrested, convicted, fined, and jailed. If, as anticipated, the Supremes overturn the Texas law, their ruling would invalidate four anti-sodomy laws punishing same-sex behavior, or 13 such laws outlawing same- and opposite-sex behavior, depending on the grounds on which they rule.
Most observers describe the case's primary impact as symbolic and political, rather than legal: After all, sodomy laws are almost never enforced. (The exception is in cases of sexual abuse and assault where the government cannot meet the standard for proving rape.) A decision striking down the law "would be an important symbolic victory for gay activists, but it would not change the lives of most gay people, because these laws, however noxious in theory, are rarely enforced," explained The Economist. USA Today concurs that the ruling "holds great symbolic value, if not practical consequence, both for gay people and for conservative family and religious groups."
But, in fact, the legal impact of the ruling could be far-reaching. For, even if sodomy laws are rarely enforced, they are frequently invoked in civil cases, particularly parental custody and discrimination ones, whether over equal employment opportunities or equal access to school facilities. Sodomy laws, in other words, actually matter a lot--and overturning them could mean toppling an entire edifice of anti-gay law.
Sodomy laws loom large in family-law matters and especially in custody and visitation cases. They are frequently invoked to paint gay parents as criminals who cannot provide good homes for children, even in cases where the evidence is clear that the child prefers--or is safer--living with the gay parent. For instance, in 1998, an Alabama trial court awarded custody of two young children to a man described as a violent alcoholic who had beaten his wife and threatened to kill his kids--all to avoid placing the children in a home headed by the lesbian mother and her partner. When the mother appealed, the Alabama Supreme Court approved the order, noting, "The conduct inherent in lesbianism is illegal in Alabama." The mother, "therefore, is continually engaging in conduct that violates the criminal law of this state. Exposing her children to ... a lifestyle ... that is illegal under the laws of this state ... could greatly traumatize them." Last year, the Alabama Supreme Court again invoked its anti-sodomy law to deny a lesbian custody over her children--even though the appellate court had ruled that the father abused his children by slapping them on two occasions and whipping them on another.
In a 1993 custody case in Virginia, a trial judge allowed a child's grandmother to prevail over his natural mother--a radical move under Virginia law--because his mother is a lesbian. The judge stated, "I will tell you first that the mother's conduct is illegal. It is a Class 6 felony in the Commonwealth of Virginia. ... And it is the opinion of this Court that the [mother's] conduct renders her an unfit parent. However, I also must recognize, and do recognize, that there is a presumption in the law in favor of the custody being with the natural parent. And I then ask myself, are [the mother's] circumstances of unfitness ... of such an extraordinary nature as to rebut this presumption. My answer to this is yes." The mother appealed all the way to the Virginia Supreme Court, which approved the ruling, noting, "Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth; thus, that conduct is another important consideration in determining custody."
Courts have even applied this reasoning in states where sodomy is not illegal. In 1985, for example, a Pennsylvania appellate court affirmed a trial-court order refusing a lesbian mother expanded custody of her two children. Though the court noted that gay sex was not against the law in Pennsylvania, it worried that "permitting the [mother] the freedom to travel could clearly place the children in a situation with the mother and [her partner], where the adults could be subject to arrest and prosecution for deviant sexual behavior." Rather than follow Pennsylvania law, then, the court bowed to "the national bias ... to favor the non-homosexual parent in a custody case." Similarly, in 1999, the Supreme Court of Mississippi upheld a lower-court custody judgment selecting a mother whose new husband was a convicted felon, wife-beater, and abuser of drugs and alcohol instead of the natural father, who was gay and lived in California, which had repealed its sodomy law in 1975. The court explained its ruling by noting that the "fact that the [father] and his `life partner' engage in sexual activity which include both oral and anal intercourse is repugnant to this Court as constituting a felony act under the laws of this state."
If the Supreme Court overturns Lawrence v. Texas, will it deny state courts the legal rationale for discriminating against gay parents? There is evidence that it will. In April, an Arkansas appellate court ruled that a lesbian mother could have custody of her children despite the fact that prior case law clearly established that "illicit sexual conduct on the part of the custodial parent is detrimental to the children." But, because Arkansas's sodomy law had been struck down nine months earlier, the court reversed course and awarded custody to the lesbian. "Either way," says Tamara Lange, a staff attorney with the American Civil Liberties Union's Lesbian & Gay Rights Project, "courts look to a sodomy law's existence or demise in determining whether gay or lesbian people should have custody of their kids."
Sodomy laws have also been invoked in employment-discrimination cases. After the Supreme Court upheld Georgia's sodomy law in the 1986 case Bowers v. Hardwick, the Court of Appeals for the District of Columbia Circuit noted that "it is hardly open to a lower court to conclude that state-sponsored [job] discrimination against [gays and lesbians] is invidious. After all, there can be hardly more palpable discrimination against a class than making the conduct that defines the class criminal." In other words, if a state can criminalize gay sexual conduct, it can certainly commit lesser evils, such as denying gay people a job.
Lawyer Robin Shahar found this out when she tried to challenge a decision by her boss, Georgia Attorney General Michael Bowers (the same Bowers from Bowers v. Hardwick), to fire her when he found out that she is a lesbian. Shahar had worked for the attorney general's office for a summer during law school and, upon graduation, had accepted a permanent job offer. But Bowers revoked the offer when he learned of her upcoming commitment ceremony because, as he saw it, having a lesbian on staff would disrupt the office's ability to prosecute the state's anti-sodomy law. After a federal trial judge upheld Bowers's termination of Shahar, the ruling was affirmed by the full Court of Appeals for the Eleventh Circuit. "We acknowledge that some reasonable persons may suspect that having a Staff Attorney who is part of a same-sex `marriage' is the same thing as having a Staff Attorney who violates the State's law against homosexual sodomy. So, we accept that Shahar's participation in a same-sex `wedding' and `marriage' could undermine confidence about the Attorney General's commitment to enforce the State's law against homosexual sodomy."
Similarly, numerous law enforcement organizations around the country, with blessings from the courts, have refused to hire gay and lesbian applicants or have fired them based on their purported criminal identity. In 1993, the Chicago Tribune reported the story of a San Francisco FBI applicant who described "an amazingly humiliating inquisition" by two agents who wanted to know if she had ever engaged in oral sex with another woman. "After she acknowledged that she had, [the agents] told her it would be hard for the FBI to hire her because it would not be able to transfer her to ... states with sodomy laws."
Outside the purview of the courts, sodomy laws have been invoked in state legislatures as rationales for killing legislation that would protect gays from discrimination or extend to them benefits available to heterosexuals. In 1991, Utah legislators successfully staved off an amendment that would include gays and lesbians in a hate-crimes bill by noting the apparent contradiction of offering legal protection to a group of people who were outlaws under the criminal law. As State Representative Merrill Nelson argued on the floor of the Utah House of Representatives, "As you know, homosexuality--sodomy--is prohibited under Utah law, so the effect of granting special protection ... to homosexuals would be contradictory under Utah law." Kansas's sodomy law was invoked in a successful effort to prevent the Topeka Human Relations Commission from studying the issue of discrimination against gays and lesbians. And Arizona legislators successfully invoked similar arguments to prevent the passage of laws protecting victims of same-sex domestic violence. "For those of us who are opposed to that type of lifestyle," argued Republican State Senator David Petersen, "the mere fact that you start to break down the laws [against sodomy] on the books and say that it's OK is a step in the wrong direction."
Sodomy laws have been invoked to stop gays and lesbians from even meeting each other on university campuses. In a seminal 1977 case, Gay Lib v. The University of Missouri, students sued the university for violating First Amendment rights of speech and association after university administrators refused to recognize a gay organization. The university argued that public meetings would likely result in increased sodomy, which violated Missouri law. "[W]herever you have a convocation of homosexuals," explained Charles Socarides, a psychiatrist hired by the university, "you are going to have increased homosexual activities, which, of course, includes sodomy." The university lost the case and appealed it all the way to the U.S. Supreme Court, which refused to hear the challenge. Chief Justice William Rehnquist (then an associate justice) dissented from the Court's decision not to hear the case. As he saw it, "The University merely refused to recognize an organization whose activities were found to be likely to incite a violation of a valid state criminal statute. ... From the point of view of the University, ... the question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measles sufferers be quarantined."
But, if such efforts have failed at the universities, they have proved very effective at the high school level, where sodomy laws have been invoked to limit discussion of homosexuality and to prevent gay organizations from forming. Under Alabama statutory law, for example, any course materials or instruction in public schools relating to sex education must emphasize, "in a factual matter and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state." Texas law governing "Education Programs for Minors" contains a similar requirement that "[t]he materials in the education programs intended for persons younger than 18 years of age must ... state that homosexual conduct is not an acceptable lifestyle and is a criminal offense." Legislatures and school boards have also stymied the formation of high school gay-straight alliances ("GSAs"), which exist in nearly 2,000 high schools across 46 states and the District of Columbia. This year, a 17-year-old junior at Klein High School in Harris County, Texas, tried to start a GSA after she was pushed into a wall of lockers by a group of boys and called a "faggot." The school district responded to her request for a GSA by banning all school groups that promote criminal behavior. Utah similarly tried to stamp out GSAs by permitting its local schools to ban all clubs that promote illegal behavior.
Sodomy laws, in short, have a ripple effect throughout U.S. case law. In 1999, Texas's sodomy law was approvingly cited by a state court in imposing the death penalty. The defendant was convicted of capital murder, and the state referred to a 1971 sodomy conviction to argue that he posed a future danger to society. (His capital sentence was eventually thrown out by a federal judge on the grounds that his lawyer, Joe Cannon, slept during substantial portions of the trial.) In 1991, one Georgia court even voided the sale of a house between two lesbians, reasoning that, because criminal acts of sodomy had likely been committed in the house, the two women could not enter into a contract to sell it. (The Georgia Supreme Court reversed this ruling in 1992.) Texas courts have also ruled that the mere accusation that a person is gay is a presumptively defamatory statement because it imputes "the commission of the crime of sodomy which is a penal offense in Texas." And the Missouri Supreme Court in 1985 suspended its law regarding spousal testimonial privilege in one case because one of the spouses turned out to be gay.
Such cases highlight the enormous importance of Lawrence v. Texas. Should the Supreme Court overturn Texas's sodomy law, it will provide protection not only for the unlucky few who find themselves prosecuted for consensual sex but for the many more who face legal discrimination justified by such laws. And that will be a welcome change indeed.
Joseph Landau, former TNR assistant managing editor, is a lawyer living in New York and an associate at Cleary, Gottlieb, Steen & Hamilton.