Judging Sex: From Bowers v. Hardwick to Lawrence v. Texas

Posted on June 24, 2013 by Tori

Tyron Garner, left, and John Lawrence, right, react to the decision in Lawrence v. Texas. Image: Metro Weekly

This week, two related Supreme Court cases both mark anniversaries.

Twenty-seven years ago (and yes, I totally had to get out my calculator for that one), on June 30, 1986, the Supreme Court issued its opinion in Bowers v. Hardwick. In it, the court concluded, “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” That is, even though previous courts had established and upheld a constitutional right to privacy when it came to some matters of sexual health — such as in Griswold v. Connecticut and Roe v. Wade — states were free to enact laws that made it illegal for people to engage in “homosexual sodomy” — basically, outlawing same-sex couples from having oral or anal sex.

June 26 is the 10th anniversary of Lawrence v. Texas, which struck down sodomy laws nationwide.

On its way to the Supreme Court, the relevant appeals court held that laws that discriminated against same-sex couples’ consensual sexual activities violated an individual’s “fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.” However, other courts of appeals had issued rulings in conflict with that sentiment. When the Supreme Court issued its ruling in Bowers, it explicitly rejected that same-sex sexual activity fell under the same constitutional right to privacy:

No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.

However, another date in June — the 26th, to be specific — marks the 10th anniversary of a different case involving gay rights: Lawrence v. Texas. That ruling reversed and overturned the court’s decision in Bowers.

So in those 17 years between Bowers and Lawrence, what changed? Continue reading →

International Day Against Homophobia & Transphobia

Posted on May 16, 2013 by Tori

IDAHO.

That’s tomorrow — May 17.

The International Day Against Homophobia and Transphobia.

Homophobia and transphobia — or rather, anti-gay and anti-trans thoughts, words, and actions — are deeply rooted in many cultures, including inside the United States. In reality, they need far more than one day of discussion and recognition. One day is not enough.

When I started thinking about this post, I thought of all the ways such sentiments show up in everyday life. It’s so much that I couldn’t possibly write everything. Then I thought some more — this was when Arizona SB1432, the “show your papers to pee” bill, was topping my newsfeeds — and it occurred to me how very much of this discrimination has been coded into law, is being encoded into law even now.

Even then, I had to narrow my search parameters — to the United States, to the relatively recent past. Otherwise, it’s just too much.

And even then, a lot of the bias remains in what’s not covered — people and situations for which the law does not provide. For groups of people who are still discriminated against, harassed, threatened, assaulted, killed by individual citizens or private organizations — this lack of necessary legislation still causes active harm.

This first set examines a number of laws — some national, some state — and Supreme Court rulings from the recent past.

1960 — Is as good a place to start as any. This is because in 1960, every state in the United States maintained laws against sodomy. Illinois was the first state to repeal its statute in 1961; Arizona followed suit 40 years later.

1967 — In Boutilier v. Immigration and Naturalization Service, the United States Supreme Court held that gay folk were included under those “afflicted with psychopathic personality.” They could thus be refused admission — or deported — simply for being gay. This remained in effect until immigration law was reformed in 1990. Continue reading →

Book Club: Flagrant Conduct

Posted on September 17, 2012 by Matt

Although books have shaped much of my political thinking, until recently I never did much reading about LGBTQ equality. My own reasoning made me an ally, so I wasn’t as well versed as I could have been. That’s why I never knew the full importance and the unlikely history of the 2003 Supreme Court decision in Lawrence v. Texas — the landmark case that put sodomy laws on trial — until I picked up Dale Carpenter’s recently published history of the case, Flagrant Conduct: The Story of Lawrence v. Texas (W. W. Norton, 2012).

Sodomy laws gave police leverage to harass members of the LGBTQ community.

Flagrant Conduct tells the story of two men who were arrested for what they didn’t even know was a crime. They could have paid fines to put the incident behind them quietly, but activists and legal counsel convinced them to take their case all the way to the Supreme Court. Although they were strangers to activism, the two men agreed to use their case to defeat an unfair law. Five years later, the two men and their attorneys won a high-stakes victory in a conservative Supreme Court.

The arrest of John Lawrence and Tyron Garner in Houston on September 17, 1998 — 14 years ago today — was the event that led to Lawrence v. Texas. That night, deputies responded to a 911 call reporting that a man was “going crazy with a gun” in Lawrence’s apartment. The deputies who arrived never encountered a man with a gun, but they arrested Lawrence and Garner for engaging in, as the offense report put it, “deviate sexual intercourse[,] namely anal sex.” The two men were charged with violating the state’s “Homosexual Conduct” law, Section 21.06 of the Texas Penal Code. The law, which criminalized same-sex sexual intimacy, was put in place when Texas revised its sex laws in 1973, giving more sexual freedoms to heterosexuals but fewer to gays and lesbians. Continue reading →