Gay and Lesbian Rights

Most gay men and lesbians remained in the closet until the modern movement for equality because homosexual behavior has been a crime throughout U.S. history. Homosexual activity includes anal sex and oral sex, which have been labeled SODOMY. Criminal laws against sodomy date from the colonial period, when a conviction for a "crime against nature" could lead to a death sentence. Although few if any people have ever been executed for sodomy, the penalties for this crime have remained heavy, and the act is as of 2003 classified as a felony in states that have sodomy statutes (Arkansas, however, classified sodomy as a Class A misdemeanor).

Advocates of gay and lesbian rights have made the repeal of sodomy statutes a leading goal. Twenty-seven states have repealed these statutes, usually as part of a general revision of the criminal code and with the recognition that heterosexuals as well as homosexuals engage in oral and anal sex.

The Supreme Court has found that state laws prohibiting homosexual sodomy are not unconstitutional. In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the Court upheld the Georgia sodomy statute (Ga. Code Ann. § 16-6-2 [1984]). Michael Hard-wick was arrested and charged with committing sodomy with a consenting male adult in the privacy of his home. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court, seeking a declaration that the statute was unconstitutional.

The Court rejected the argument that previous decisions such as the Court's rulings on ABORTION and contraception had created a right of privacy that extends to homosexual activity. The Court also rejected the argument that a fundamental right to engage in homosexual activity can be found in the DUE PROCESS CLAUSES of the Fifth and Fourteenth Amendments. To the argument that homosexual activity should be protected when it occurs in the privacy of a home, Justice BYRON R. WHITE, writing for the majority, said that "otherwise illegal conduct is not always immunized whenever it occurs in the home." For example, the possession of drugs or stolen goods is not protected because it occurs at home.

Hardwick was a setback to the gay and lesbian rights movement, as it allowed opponents to argue that it was absurd to grant CIVIL RIGHTS to persons who engage in criminal acts.

In December 2002, the Supreme Court agreed to reconsider the constitutionality of sodomy laws. As of 2003, 14 states still have active sodomy laws. In four of these states, including Texas, these sodomy laws apply only to homosexual conduct.

In 1998, John Lawrence and Tyron Garner were convicted on charges of sodomy under Tex. Pen. Code § 21.06 (Vernon 2003). Officers, responding to a false report that the two men had possession of illegal weapons, entered an apartment and found the men engaged in sex. Upon conviction for sodomy, they were each fined $200. They appealed their convictions to a Texas appellate court, which found that the sodomy law did not violate either the U.S. or the Texas constitutions. LAWRENCE V. TEXAS, 41 S.W.3d 349 (Tex. App. 2001). The Texas Court of Criminal Appeals denied a petition for discretionary review, but the U.S. Supreme Court granted certiorari. In June 2003 the Court reversed the judgment of the lower court. Justice Kennedy, writing the majority opinion, stated: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Thus the Court overruled Bowers v. Hardwick.