Experts say high court’s ruling in Lawrence v. Texas — handed down 10 years ago next week — paved way for 2 marriage equality cases


FIVE-YEAR FIGHT  | Attorney Mitchell Katine, far right, says he didn’t believe it when a Houston activist called in September 1998 and said two men had been arrested in one of their homes and charged with sodomy. Katine is shown a few months later outside the courthouse with his clients, Tyrone Garner, far left, and John Lawrence, center. The Supreme Court finally decided the case in 2003. (Associated Press)

DAVID TAFFET  |  Staff Writer

When Houston attorney Mitchell Katine received a call in September 1998 about two gay men arrested in one of their homes and charged with sodomy, he thought the caller had it wrong.

No one is charged with sodomy in his own home, Katine said to himself. But the call came from Houston activist Lane Lewis, whose friend was a gay clerk in the court processing the charge.

“I didn’t believe it was real,” Katine said.

“Let me send you the paperwork,” Lewis told him.

Katine couldn’t believe what he read.
Police received a call about “a black male going crazy with a gun” in John Lawrence’s apartment.

When police broke in, Lawrence and Tyrone Garner were on the couch watching TV, according to Lawrence’s account.

According to one of the officer’s account, Garner and Lawrence were having sex and didn’t stop even after the officers were in the bedroom watching them for several minutes.

“I wasn’t in the apartment, so I don’t know,” Katine said.

Although police found no disturbance going on, they arrested Lawrence and Garner under the state sodomy law.

“Police officers really treated them roughly,” Katine said. “They dragged them down the stairs and didn’t let them get dressed.”

Lawrence and Garner were long-time friends. Garner and his boyfriend, Robert Eubanks, were moving to a new apartment. Lawrence was helping them move furniture. Garner and Eubanks had a fight that evening, and Garner stayed at Lawrence’s apartment.

To get back at Garner, Eubanks called the police to report a disturbance. He later spent two weeks in jail for filing a false police report.

Garner and Lawrence initially pleaded not guilty.

“Lawyers knew the significance of what we could do with this,” Katine said.

So the two men changed their plea to “no contest” and the case turned into a challenge of the sodomy law.

June 26 marks the 10th anniversary of the U.S. Supreme Court’s decision that struck down all remaining sodomy laws in the U.S. And experts say the court’s decision in Lawrence v. Texas set the stage for challenges to the Defense of Marriage Act and Proposition 8 that will be decided next week, possibly on the same date as Lawrence.

“We wouldn’t be at this stage if that case hadn’t occurred,” Katine said of Lawrence.

In his decision, Justice Anthony Kennedy wrote that Lawrence and Gardner were 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,” he wrote. “The Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

Lawrence v. Texas struck down Bowers v. Hardwick, a similar case decided by the high court 1986 that upheld sodomy laws.

At the time, the Supreme Court chose to hear Hardwick rather than a similar case from Dallas. In Baker v. Wade, Judge Jerry Buchmeyer struck down 21.06, the Texas sodomy law, in 1982. The Hardwick decision reinstated the law until the Lawrence case.

While rarely used to arrest anyone, the sodomy law, officially known as the Homosexual Conduct law, did have consequences. Lawrence and Garner were the first people charged with sodomy in years — but 21.06 criminalized all gays and lesbians.

In 1985, Bill Nelson was forced off the Dallas Civil Service Review Adjunct Board after the city attorney told the Dallas City Council that gay members of decision-making boards who did not obey Texas anti-sodomy laws could not serve.

In 1989, Mica England, a lesbian who applied to be a Dallas police officer, was also treated as a criminal. She was disqualified because applicants had to sign an affidavit saying they would violate no Texas laws. England sued and won in 1993, but was denied employment on the DPD for other reasons.

Ken Upton Jr., a supervising senior staff attorney in Lambda Legal’s Dallas office, called the Lawrence decision freeing for a lot of courts.

“It was like breaking a logjam,” he said.

The decision has had broad implications directly leading to marriage equality laws but has been used in many narrower decisions as well. Upton credited the Lawrence case for court decisions in employment and custody disputes.

He said the 1995 Romer v. Evans case that struck down Colorado’s Amendment 2 — which prevented cities and counties from recognizing gays and lesbians as a protected class — laid the groundwork for Lawrence. “How do you square that when you’re still criminalizing them,” he said. “Lawrence broke that tension.”

Upton said one shortfall of the Lawrence decision was that the sodomy laws were so unconstitutional, the court didn’t have to do much analysis. There was simply no legitimate purpose served by the sodomy laws. So the decision added little guidance for courts on other matters.

But Upton said the Lawrence case led directly to the beginning of marriage equality. The Massachusetts Supreme Judicial Court waited until after the Lawrence decision to issue its Goodridge decision legalizing same-sex marriage in Massachusetts in 2004.

While the Defense of Marriage Act has been on the books since 1996, Upton believes it reached the Supreme Court rather quickly.

From 1996, when the law was enacted, until 2004, marriage was not legal in any state. Only after Massachusetts began marrying same-sex couples could lawsuits begin.

Upton said before reaching a court, cases have to exhaust all administrative remedies. In a tax case, such as the challenge to DOMA that is expected to be decided by the Supreme Court next week, the IRS ruling would then be challenged in a trial court and appealed to a district court before heading to the Supreme Court.

Katine and Upton both expect positive decisions restoring marriage equality to California and declaring DOMA unconstitutional. And both credit Lawrence with laying the groundwork.

Katine also credits Garner and Lawrence personally. Both became heroes to the LGBT community.

After their arrest, Katine said, they remained angry for quite awhile over how the police treated them.

But once the case was decided, they were proud of their contribution.

He said after the Supreme Court ruled, Lawrence and Garner were recognized around town and people often bought them drinks at the bars. He said they never received any hate mail or threatening phone calls. Police would even congratulate them.

“It made them proud, these non-political, non-activist, working-class gay guys could leave a legacy for the gay community,” Katine said.

Despite being declared unconstitutional, 21.06 remains on the books. Rep. Garnet Coleman has introduced legislation to remove the law from the books each session since the 2003 decision. This year, a Senate version of the bill made it out of committee but did not make it to the floor for a vote.
Lambda Legal will celebrate the 10-year anniversary of the decision at its Landmark Dinner on Aug. 10 at Hotel Palomar in Dallas. On June 28, it will host a breakfast in Downtown Houston at the Houston Center Club on Caroline Street.

None of the principles in the case are still alive to mark the anniversary. Eubanks was beaten to death in 2000 at age 42. The case was never solved. Garner died of meningitis in 2006 at age 39. Lawrence died in 2011 at age 68 of a heart condition.

This article appeared in the Dallas Voice print edition June 21, 2013.