Was high court gay rights ruling a setup?
By George McEvoy
Palm Beach Post Columnist
Saturday, August 13, 2005
A landmark U.S. Supreme Court ruling in 2003 - one that struck down anti-sodomy laws and opened the way to same-sex marriages - may have been based on a case that was staged.
If so, the legality of the high court's decision could be in question.
The issue seems extremely timely, considering the controversy that has broken out over the disclosure that President Bush's Supreme Court nominee, Judge John G. Roberts Jr., once advised a gay group in a court action on a pro bono, or free, basis.
Former Houston criminal court Judge Janice Law explores this explosive legal issue in her book, Sex Appealed... Was the Supreme Court Fooled? published by Eakin Press of Austin, Texas.
BEST SELLER--Author Rick Bragg, left, chats with Janice Law at the Southern Kentucky Book Fest where both were featured authors in April, 2006. Bragg, a former NY Times reporter, won a Pulitzer Prize in 1996 for feature writing.
Judge Law is a former Fort Lauderdale newspaper reporter. After studying law at Nova University, she became an assistant state attorney in Broward and elsewhere in Florida, and an assistant U.S. attorney in Miami-Dade County and in Houston before becoming a judge.
In the interest of full disclosure, I am proud to say here that she and I worked together on a Fort Lauderdale newspaper and that we've been close friends for many years. But, friends or not, I still would recommend this book to anyone interested in our justice system.
But this is no dusty study of the courts. It is a gripping tale of how the case known in U.S. Supreme Court archives as Lawrence vs. Texas started out as a Class C misdemeanor and wove its way through a maze of sex, jealousy, betrayal, raw ambition, political maneuvering and a murder that remains unsolved to this day.
Texas Penal Code Section 21.06 had been on the books for years, but nobody ever had been arrested under its authority. If anyone had been convicted of violating the statute, the most it called for was a small fine.
But a gay group tried to get it overturned in 1994, claiming it deprived them of certain employer benefits if they lived together and that it made it difficult for them to adopt children. A Texas appeals court replied that the gay group would have to wait until someone was arrested for violating the statute, and then attack its constitutionality.
So, on the night of Sept. 17, 1998, Houston's Harris County deputies on patrol got a message that a man with a gun was firing the weapon at a certain address. Proceeding there and receiving no answer when they called out who they were, the deputies drew their pistols and cautiously entered the apartment.
Instead of someone with a gun, they encountered a man calmly talking on a phone in the kitchen. Then they opened the bedroom door and were stunned to see two men engaged in a sex act. What really shocked the officers, however, was the fact that the two men kept right on performing the sex act even after the deputies identified themselves and ordered them to stop. Finally, the deputies had to push and pull the two men apart. No gun or sign of shooting ever was found.
So, the gays had their arrest. Whether it was staged still is open to question. The defendants and their lawyers - high-profile Ivy Leaguers from New York - had their arrest, had their route to an appeal.
When it finally did reach the U.S. Supreme Court, the justices voted 6-3 to overturn a 17-year precedent and throw out the Texas statute as violating the constitutional right to privacy.
Those who voted to overturn the statute were Justices Stephen Breyer, Sandra Day O'Connor, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens. Justice Kennedy wrote the majority decision.
Those voting to uphold the Texas law were Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.
Judge Law asks the question, "Was the highest court in America fooled big-time?" And she wonders whether this wasn't "a grandiose, legal-world intellectual heist equivalent to the Great Train Robbery."
I always knew my friend Janice was a crackerjack reporter and writer. With Sex Appealed, she has outdone herself.