Before we get hung up in the nuts and bolts of Lawrence v. Texas, let's be clear: There are two kinds of homophobia, at least in Texas. The first is a hatred of all things homosexual. That's bad. The other involves a certain fondness for gay people—an acceptance that they are A-OK, so long as they don't commit any of those sex acts they're inclined toward. This sort of Will & Grace ("gays are so cute, but don't show me what they do in bed") homophobia seems not only to be defensible according to the state of Texas; it also appears to be the lynchpin of their argument in today's long-awaited gay sodomy case.
The facts of Lawrenceare straightforward and mostly undisputed: Texas police entered the apartment of Houston resident John Lawrence in response to a neighbor's fabricated claim that a man in there with a gun was "going crazy." What the cops actually found was Lawrence and Tyron Garner having anal sex, for which they were promptly arrested under a Texas law prohibiting "deviate sexual behavior" (i.e., oral or anal sex) between persons of the same gender.
Pause here to consider that bestiality is not considered "deviate" under Texas law.
Lawrence and Garner were jailed, prosecuted, and fined over $200 each. They challenged the law, arguing that it violated the 14th Amendment's promise of privacy in intimate sexual matters and its guarantee of equal protection under the law. They prevailed in the Court of Appeals for the 14th District of Texas, but lost, 7-2, when the court reheard the case en banc. So they appealed to Texas' highest appellate court, which declined to hear it, and on to the U.S. Supreme Court, where their argument was heard this morning.
Lawrence and Garner have two possible routes to invalidating the Texas law, and today they press both. The "fundamental rights" argument tracks a line of contraception and abortion cases holding that certain intimate, private, family-related choices may be protected from state interference. This was the basis of Roe v. Wade. The "equal protection" argument holds that states can't promulgate laws discriminating against certain classes of people unless there is some "rational basis" for the law and a "legitimate government purpose" behind it. Since the Supreme Court decided their last homosexual sodomy case, Bowers v. Hardwick, in 1986 on the grounds that the first theory (privacy and fundamental rights) didn't apply to gay sodomy, they could overturn the Texas law on equal protection grounds without throwing out the Bowers precedent.So confusing is the argument, as it pings back and forth between due process and equal protection analysis, that at some point Justice Antonin Scalia asks Paul Smith, who represents Lawrence and Garner, to raise his left hand while arguing one track and his right while arguing the other.
Chief Justice William Rehnquist immediately challenges Smith on the claim that there is some longstanding privacy right to commit gay sodomy. This was the basis of the Bowers decision—a decision in which Rehnquist was in the majority. "The right has to have been recognized for a long time," he argues. Smith responds that laws banning homosexual conduct didn't even exist until the 19th century. Scalia argues that sodomy laws have been on the books from the beginning of the republic, they just included heterosexual and married couples.
"It's conceded by the state of Texas that married couples can't be regulated in their private sexual decisions," says Smith. To which Scalia rejoins, "They may have conceded it, but I haven't."
Scalia insists that a liberty interest (under the fundamental-rights theory) needs to be "deeply rooted in tradition," and the mere fact that some of those state anti-gay laws have since been repealed doesn't guarantee a fundamental right. He suggests that even if all states had "repealed their laws against flagpole-sitting," there would not necessarily be a fundamental right to flagpole-sit.
(Flagpole-sitting is not a crime in Texas, by the way, unless said pole has been very strategically placed on your partner's anatomy.)
Smith explains that fundamental rights are understood to apply to decisions about "sexual relations in the home" and decisions about "procreation and non-procreation." Rehnquist interjects that the laws at issue have little to do with "non-procreation." Smith says these laws say "you can't have sexual activity at all" if you are gay and Scalia objects: "They just say you can't have sexual intimacy with a person of the same sex." See? No problem. Homosexuals remain perfectly at liberty to have heterosexual sex in Texas.