Lawrence Case Could Pave the Way for

Special Class Status for Homosexuals

On March 26, 2003 the U.S. Supreme Court heard oral arguments on whether Texas’ anti-sodomy statute violates the U.S. Constitution in a case entitled Lawrence v. Texas (case number 02-102) which could have far-reaching implications.

Homosexual activists are hoping that the high court will essentially overturn its 1986 decision, Bowers v. Hardwick, when it ruled 5-4 that there is no constitutional right to sodomy. They're pinning their hopes on the Fourteenth Amendment, which guarantees equal protection under the law, and an expanded right to privacy derived from the high court’s divisive abortion rulings. The pro-homosexual friend-of-the-court briefs challenge the Texas law for banning oral and anal sodomy between homosexuals but not for heterosexual couples, chalking it up to “animus” and “prejudice” against homosexuals as a class of people.

Texas law prohibits “deviate sexual intercourse” between people of the same sex. It is one of four sodomy laws in the United States that ban homosexual sodomy. Nine other states ban sodomy in general.

The Lawrence case stemmed from the arrest and conviction of John Lawrence, 55, and Tyron Garner, 31, for engaging in sodomy in their home on the night of September 17, 1998. Police had arrived at Lawrence’s apartment after answering a prank burglary call from a neighbor. They were fined $200 each.

Pro-family groups argued that if the law is overturned, it will pave the way for legalizing “homosexual marriages” and opening the flood gates to a host of other pro-homosexual legislation.

Arguing for Texas was Harris County District Attorney Charles Rosenthal. Arguing against the Texas sodomy law was a homosexual activist organization, the Lambda Legal Foundation. That group is using the courts to try to overturn marriage laws nationwide.

Comments of those present

Jan LaRue, chief counsel for Concerned Women for America (CWA), who filed an amicus brief for CWA and attended the Supreme Court oral arguments offered this assessment of the proceedings: "Victory in this case depends on two justices, Sandra Day O'Connor and Anthony Kennedy. Both were noticeably quiet during oral arguments. Each asked a question related to the Court's 1986 decision in Bowers v. Hardwick, which upheld a Georgia statute that applied to both opposite-sex and same-sex sodomy. The Court ruled that there is no fundamental constitutional right to engage in sodomy. The petitioners here are asking the Court to overrule Bowers, which it is unlikely to do. The crux of the case rests on the equal protection challenge because the Texas statute criminalizes only same-sex sodomy. O'Connor asked whether a statute that covered both would violate equal protection. The Court has to be convinced that there is a rational basis for the statute. The briefs on our side gave them several. We need to pray that O'Connor and Kennedy will read those briefs."

LaRue dismissed the homosexual lobby’s equal protection argument in the amicus brief she authored for CWA: "The Texas statutes at issue do not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The statutes are facially neutral in that they prohibit same-sex deviate sexual intercourse. They criminalize conduct, not status. The statutes do not discriminate on the basis of sexual orientation or sex (gender) because they apply equally to two women or two men regardless of their orientation. Even if the statutes discriminated on the basis of sexual orientation, for equal protection purposes, sexual orientation is not entitled to anything more than rational basis scrutiny. Rational basis scrutiny means that the defendants need only show that legislators had a rational basis for enacting the law."

LaRue’s amicus brief for CWA makes the following arguments, among others:

· The statutes are directed at conduct and do not discriminate on the basis of sexual orientation, sex or “gender.”

· The statutes do not violate a fundamental right of privacy or discriminate against a suspect class with 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 a rational, if not compelling, reason to prohibit same-sex deviant sexual intercourse.

A rebuttal brief by the homosexual lawyers’ group Lambda Legal Defense and Education Fund argued that there was no rational basis for treating homosexual sodomy different from heterosexual sodomy. “[T]he law expressly treats identical conduct differently depending on who is engaging in it,” stated the Lambda Legal reply. “There is no permissible justification for that classification, even under the most deferential equal protection review.”

But Glen Lavy, a Harvard-educated lawyer with the Arizona-based Alliance Defense Fund (ADF), which coordinated the pro-family briefs, found a clear rational justification for the Texas law in the many health risks linked especially to homosexual sex acts. In a brief on behalf of thousands of Christian doctors, Lavy wrote: "Texas has a legitimate interest in regulating public health, and the CDC [Centers for Disease Control and Prevention] has identified sexually transmitted diseases (STDs) as a public health problem. Sodomy is an efficient method of transmitting STDs. And, regardless of the reason, same-sex sodomy is far more effective in spreading STDs than opposite-sex sodomy. Multiple studies have estimated that 40 percent or more of men who practice anal sex acquire STDs. In fact, same-sex sodomy has resulted in the transformation of diseases previously transmitted only through fecally contaminated food and water into sexually caused diseases -- primarily among those who practice same-sex sodomy.

The issue under rational-basis review is not whether Texas should be concerned about opposite-sex sodomy, but whether it is reasonable to believe that same-sex sodomy is a distinct public health problem, which it clearly is."

Lavy’s brief on the health risks associated with homosexual behavior is available, along with 15 other pro-family amici, on the ADF web site (www.alliancedefensefund.org). The pro-homosexual amici are available on Lambda Legal’s website (www.lambdalegal.org). Two conservative-minded libertarian groups, the Cato Institute and Clint Bolick’s Institute for Justice, filed briefs in support of striking down the Texas sodomy law. So did the Log Cabin Republicans, a homosexual group, and the Republican Unity Coalition, an organization that hopes to make homosexuality a “non-issue” in the GOP.

Matt Staver, president and general counsel of the Florida-based Liberty Counsel, wrote in another amicus brief that stated, “The issue in this case is not the persecution of a political minority. It is the right and duty of states to regulate conduct deemed harmful to society.”

Most Supreme Court watchers agree with LaRue and believe the key swing votes on the Lawrence case are Justice O’Connor, who many expect to retire during President Bush’s first term, and Justice Kennedy. In 1996, Kennedy and O’Connor alienated social conservatives by joining the 6-3 decision striking down Colorado’s Amendment 2, which would have invalidated and prohibited laws based on “sexual orientation” in the state.

“The petitioners are claiming that states have no right to enact moral laws and they want the Court to reverse its 1986 ruling in Bowers v. Hardwick, which held that there is no constitutional right to engage in homosexual sodomy,” LaRue said. “What Justice [Byron] White said then is still true: To claim that homosexual sodomy is a fundamental constitutional right, ‘implicit in the concept of ordered liberty,’ is ‘at best facetious.’ It doesn’t take a genius in legal warfare to understand how an adverse ruling on either of those issues impacts the defense of marriage,” LaRue concluded.

Jordan Lorence, an ADF attorney who is probably the most experienced pro-family litigator in the nation on the homosexual issue, said, “Advocates of homosexual behavior would like to use this case to advance their agenda. They want to legalize same-sex marriage, to lift restrictions on homosexual conduct in the military, to legalize adoption by same sex couples, and to restrict free speech rights of individuals who have faith-based objections to endorsing, funding, or supporting homosexual behavior.”

Robert Knight, director of the Culture and Family Institute, an affiliate of CWA, said there is no doubt homosexual legal activists would use a victory in the Lawrence case to advance their number one goal: homosexual marriage. “Marriage transcends even civil law. It was instituted by God, and the law has recognized its uniqueness and protected marital intimacy as sacred. Such attempts to steal the moral capital of marriage and apply it to other sexual relationships cheapens marriage and undermines societal protection for this irreplaceable institution,” Knight said.

Knight, one of the draftsmen of the federal Defense of Marriage Act, continued, “Ruling for sodomy would encourage a highly dangerous act that is linked to the spread of HIV and other diseases. It could also remove another roadblock to homosexual activism in schools and radically undermine the morale of our armed forces, where sodomy is currently banned.”

Lambda Legal dismissed the marriage argument as a “chimera” in its reply brief.

Jonathan Turley, a specialist on privacy law at George Washington University (who was widely quoted during the 2000 presidential election fiasco), said the Supreme Court rarely reverses itself. But Turley told the Atlanta Journal-Constitution that many in his field would love to see Bowers v. Hardwick overturned. “If you were to take a poll of constitutional scholars on their top 10 worst decisions of the modern era, the vast majority would have this case on their list,” he said.

Mike Farris, Chairman and General Counsel of the Home School Legal Defense Association, who watched the arguments, was blunt in his assessment of the arguments. "The state of Texas' arguments were ill-prepared," Farris said. "The first question from a clear friend of our position, Justice Scalia, was, 'I don't understand your argument at all; what are you talking about?'" Farris, who is also president of Patrick Henry College in Purcellville, Va., hopes the justices will lean heavily on prepared arguments handed in earlier.
Alan Sears, president of the ADF, shared the assessment that the Texas attorney had done poorly in defending the law. Sears also said the Court also seemed to ignore centuries of fact and legal precedent. "Throughout the argument, several justices acted like they were unaware of the most basic legal precepts," Sears said. "They forgot that the states have always had, and continue to have, general police powers to regulate the 'health, safety and morals' of their citizens. That includes the definition of marriage and limits on their sexual behavior such as the prohibition of sibling marriage, acts of pedophilia, polygamy and incest."
Sears added: "They also forgot that the Constitution does not make the Supreme Court a 'super legislature' to revise each section of the criminal code not currently in vogue in Hollywood and the media."
Kelly Shackelford, executive director of the Liberty Legal Institute, said he does not think the Court will hand homosexual activists a grand slam. "My feeling is that they won't do that," Shackelford said. "But I think very clearly they're leaning heavily in the direction of striking down the Texas sodomy law, saying that it discriminates against same-sex sodomy."
Jordan Lorence, a vice president at the ADF, expects the high court to reaffirm a 1986 case where it ruled there was no constitutional right to commit sodomy. But he said the decision in this case may weaken the future ability to write laws that restrict homosexual activity. "I think it was a sad day for the republic that this question is even before the court. People need to be praying for the Supreme Court to come to the right decision and not give constitutional protection to homosexual activity," Lorence said.

Publisher's Comment
The Supreme Court's decision in the Lawrence v. Texas Case is expected by the end of June. We need to fervently pray for wisdom for the justices of the U.S. Supreme Court, that the will of the Court might reflect God's Holy Will, and that they will decide in favor of Texas. Information contained in the above article was supplied by Concerned Women for America and Focus on the Family.