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Lawrence and Garner v. Texas exhausted the Lone Star State's appellate process for criminal cases last April, when it was spurned by the Texas Court of Criminal Appeals. On December 2, however, the US Supreme Court put the case on its docket. The outcome may determine the constitutionality of sodomy laws in 14 US states and Puerto Rico.

This potential legal milestone began with a vengeful prank. On September 17, 1998, police burst into the bedroom where John Geddes Lawrence and Tyron Garner were quietly having sex. A neighbor had phoned in a tip that an armed intruder had entered Lawrence's Pasadena, Texas, home and was "going crazy." No such disturbance had taken place. But Lawrence, 55, and Garner, 31, were led away in handcuffs and jailed overnight. Prosecuted for "moral turpitude" under a 119-year-old statute, they entered pleas of nolo contendere. A justice of the peace fined them each $125 plus court costs.

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Determined to fight back, the two men filed an appeal intended to challenge the Texas "Homosexual Conduct Law." The state decriminalized oral and anal sex between heterosexual partners in 1974, but the 1879 anti-sodomy provisions still apply to homosexual activity, even between consenting adults in private. State and national gay rights organizations have targeted the law for years. Meanwhile, theocratic proponents of "Defense of Marriage" legislation have fought to preserve the status quo.

Under Texas law, "deviant sexual intercourse" is a Class C misdemeanor punished with a maximum fine of $500. The penalty is light, but its continued presence on the books means all gay Texans hold diminished legal standing. In cases involving employment, housing, and family law, the existence of a sodomy statute is a license to discriminate. In many states, a sodomy conviction from anywhere can be a ticket to the sex- offender registry­ or, when the defendant is not a citizen, out of the country.

Kansas, Oklahoma, and Missouri also retain sodomy laws that only apply to gay and lesbian sex. (Until last July, when the state supreme court struck down the statute, so did Arkansas.) Consensual sodomy regardless of sexual orientation is banned in ten states: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah, Virginia, and Michigan (except Wayne County). The prohibition frequently extends to straight married couples. The Puerto Rican sodomy law, now the object of an ACLU lawsuit, applies to all sexual orientations, but treats gay men and lesbians with particular stringency.

Statutory definitions of sodomy typically allude to "abnormal" intercourse or "crimes against nature." In some states, those crimes are explicitly described as oral and anal sex. Several states specify bestiality as well. Repression of sexual conduct by stern legal means is an old tradition; each of the 13 original United States had sodomy laws that imposed the death penalty. Although such laws have lost much of their power and severity, oral and anal sex remain felonious in several states, including Virginia and the Carolinas.

Exorcising demons

The laws have roots in the cultural myth of the sodomite as the definitive evil "other"­ alien, subversive, and threatening to socioeconomic order. As Jonathan Dollimore notes in Sexual Dissidence, "other kinds of transgression­ political, religious­ are not only loosely associated with the sexual deviant, but 'condensed' in the very definition of deviance." Sodomy laws incubate belief in witches. Those who find the imagined threat of witches politically useful­ the activists and politicians of the Christian Right, for example­ prefer that sodomy laws remain in place.

In 1986, the Christian Right was gratified by the Supreme Court's ruling in Bowers v. Hardwick, which upheld the sodomy statute of the State of Georgia. In Courting Justice: Gay Men and Lesbians v. the Supreme Court, Joyce Murdoch and Deb Price call the Bowers ruling "gay Americans' most devastating legal setback of the 20th century." Lawrence and Garner v. Texas offers the court an opportunity to right that wrong.

Like the Texas case, Bowers v. Hardwick began when a police patrolman entered an Atlanta bartender's apartment and discovered him performing fellatio on another man in the privacy of his bedroom­ a violation of state law that theoretically could mean a prison term of 20 years. Hardwick's sex partner, a married schoolteacher, quietly pleaded guilty and receded into the background, but Hardwick pushed the case all the way through the appellate process.

The unfortunate result was a 5-4 decision on the side of Georgia Attorney General Michael J. Bowers, who had cited Biblical passages in arguing that sodomy was too heinous to be protected on any grounds. The court echoed the position it had taken in 1976, when it upheld both Virginia's "Crimes Against Nature" law and its counterpart in North Carolina. The Bowers ruling had the effect of reaffirming the second-class citizenship status of gay and lesbian Americans.

Writing for the majority, Justice Byron White maintained that at the heart of Bowers v. Hardwick was the question of whether the US constitution gave "a fundamental right to homosexuals to engage in consensual sodomy," an idea he dismissed as "at best, facetious." White's views were shared by Chief Justice Warren Burger, William Rehnquist, and Sandra Day O'Connor. Because sodomy laws were rarely enforced, Justice Lewis Powell called the suit "frivolous," and joined the majority after wavering briefly. (Later, in retirement, Justice Powell conceded that his vote in Bowers was a mistake.)

Minority votes were cast by Harry Blackmun, Thurgood Marshall, William Brennan, and John Paul Stevens. In his spirited dissent, Blackmun, who believed that the privacy principle established in Roe v. Wade should apply to sexual conduct, wrote that "depriving individuals of their intimate relationships poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do." Stevens added that "selective application must be supported by... something more substantial than a habitual dislike for, or ignorance about, the disfavored group."

Archaic laws waning

Twelve years later, days after Lawrence and Garner were fined, the Georgia Supreme Court struck down the state's sodomy law. By that time, many of the 24 states that had sodomy laws in 1986 had dropped those provisions through legislative repeal or judicial invalidation. In a December 2 press release issued by Lambda Legal Defense, which is representing Lawrence and Garner, Legal Director Ruth Harrows observed, "Society's knowledge about gay people... has increased exponentially since in 1986, and we believe a more informed view of constitutional protections for gay people can now prevail."

Three participants in the Bowers v. Hardwick decision remain on the high court: Stevens, Rehnquist, and O'Connor. Only John Paul Stevens can be counted on to oppose the Texas sodomy statute. Rehnquist, who succeeded Warren Burger as Chief Justice, is indefatigably right-wing. O'Connor is not so predictable. Although she voted with the majority in Bowers v. Hardwick, she also voted to overturn Colorado's discriminatory Amendment 2 in Romer v. Evans. But wary activists recall that in 1998, with O'Connor's concurrence, the Supreme Court sidestepped Cincinnati's similar Issue 3, which removed sexual orientation from the city's anti-discrimination ordinance. The move seemed to indicate a drift away from the equal-protection principles that governed the Romer decision.

Attorneys for Lambda Legal contend that Texas's Homosexual Conduct Law violates (a) the constitutional guarantee of equal protection for all citizens, and (b) the constitutional right to privacy. Attorneys for the State of Texas insist that Bowers v. Hardwick settled the matter, and argue that homosexual conduct is inherently less acceptable than similar conduct among heterosexuals. Oral arguments in Lawrence and Garner will be presented during the Supreme Court's 2003 spring session.

Justices Clarence Thomas and Antonin Scalia are expected to join Rehnquist in siding with the State of Texas; Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer are expected to join Stevens on the side of gay rights. Justice O'Connor may be unresponsive to the idea that gay sex merits protection by right of privacy, but may support equal protection for gay individuals. The other possible swing vote is sometime civil libertarian Anthony Kennedy, a Reagan appointee who ruled against gay rights at least five time during his previous career as a federal appellate judge.

While civil rights for gay Americans gain constitutional footholds, the concept of a right to privacy appears to be eroding in the age of the Department of Homeland Security and the USA Patriot Act. If Lawrence and Garner prevail at all, it will probably be on equal-protection grounds­ a result that will preserve sodomy laws in states where no one, regardless of sexual orientation, can legally suck or fuck. But in the evolving world of 21st-century American jurisprudence, any outcome is possible.