The case was brought by two Texas men convicted of having same-sex intercourse. Though not scheduled, argument should be heard in March in early April. Specifically, the Texas men are asking the high court to decide whether their convictions under Texas's "Homosexual Conduct" law -- "which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples -- violate the 14th Amendment guarantee of equal protection under the laws."
They also challenge whether their convictions violate their constitutional privacy rights. The Supreme Court last ruled in 1986's Bowers vs. Hardwick that homosexual conduct was not protected by the Constitution. The men are asking the justices to reverse that precedent."In this case, the full power of the criminal law was brought to bear against petitioners John Lawrence and Tyron Garner," the men told the Supreme Court in a brief, "who were arrested, held in custody, convicted and punished for engaging in consensual sexual intimacy in the privacy of one of their homes."
The Texas law banning same-sex intercourse is unlike the laws against "sodomy"--usually defined to include anal and oral sex, whatever the gender of the practitioners. Instead, the Texas law singles out homosexual couples but does not target heterosexuals, the men told the Supreme Court.
Sheriff's deputies entered Lawrence's home late in the evening of Sept. 17, 1998, to investigate what turned out to be a false report of a "weapon disturbance." "There, they intruded on Lawrence and Garner having sex," the men's petition said.
After being convicted in a justice of the peace court, the men filed motions to suppress the charges on the grounds that the law is unconstitutional. When those motions failed, the men pleaded no contest, were found guilty and paid $200 fines, plus court costs.
Though a three-judge panel of the state Court of Appeals reversed the men's convictions under the Texas Equal Rights Amendment, the full appeals court reversed. In unsuccessfully asking the Supreme Court not to review the case, Harris County District Attorney Charles Rosenthal Jr. told the justices in a brief that there was no violation of a "fundamental right."
Rosenthal pointed out that the Supreme Court itself said there was no such right when it ruled in Bowers in 1986. "In light of the fact that homosexual anal sodomy was viewed as criminal behavior under state law and the common law for a period of centuries," Rosenthal said, "that conduct could not conceivably have achieved the status of a 'fundamental right' in the brief period of 16 years since Bowers was decided."
The justices agreed Monday to hear the case in a one-sentence order.
