Historians File Amicus Brief in Sodomy Case
A group of 10 historians led by University of Chicago Professor George Chauncey have filed an amici curiae brief with the U.S. Supreme Court on behalf of John Lawrence and Tyron Gardner, two men charged under a Texas anti-sodomy law whose case is now pending before the Court. According to Chauncey, the historians’ brief filed in Lawrence and Gardner v. Texas (case no. 2-102) seeks to “correct the misunderstanding of the history of sodomy through the years and places Texas law in context of anti-gay discrimination in the 20th century.”
The case goes back some number of years. In 1998, two gay men, John Lawrence and Tyron Gardner, were arrested in a Houston-area apartment by police officers responding to a false report of an armed intruder. After entering the apartment, the officers arrested the two, who were having sex. Both men were charged under the Texas’ “homosexual conduct” law and fined $200.
Lawrence and Gardner sued. After at first being found guilty, their lower court convictions were overturned. In addition, a 3-judge panel of the 14th Court of Appeals struck down the Texas sodomy law they had been charged under, maintaining that it violated constitutional equal protection guarantees. However, the 14th Court then heard the case, found that the existing law “advances a legitimate state interest, namely, pre serving public morals,” and upheld the statute, thereby reinstating the state ban on homosexual sodomy. Lawrence and Gardner appealed the Court of Appeals decision to the highest court in Texas for criminal matters, the Texas Court of Criminal Appeals, which refused to hear the case. As a last resort, the defendants petitioned the U.S. Supreme Court. On 2 December 2002, the Court agreed to hear the appeal.
At issue is the constitutionality of the Texas law that criminalizes “deviate sexual intercourse with another individual of the same sex” though the ruling is expected to have broader ramifications. Similar anti-sodomy laws are currently in force in several states. According to Susan Sommer of the Lambda Legal Defense Fund, the organization handling the case for the plaintiffs, the Court’s decision is expected to grapple with the issue of whether sexual conduct between consenting adults should be treated differently whether it is a homosexual or heterosexual sex act, and whether such state laws such as the Texas law are constitutional and should apply to adults in the privacy of their own homes.
In past decisions, the Supreme Court has struggled with how much protection the Constitution offers in the bedroom. In one previous 1986 case—Bowers v. Hardwick—the Court upheld a Georgia law that criminalized all acts of sodomy, including those engaged in by married couples. According to Chauncey, “the Court misconstrued that law and described it in their opinion as if it only applied to homosexual conduct.” The Lawrence case differs in that it actually does apply specifically to homosexual conduct. Chauncey believes that the Court agreed to hear the case in part at least, “to resolve some of the inherent conflicts in the Court’s previous decisions.”
The historians’ three-part brief seeks to advance several points: first, that the Bowers v. Hardwick case rests on a fundamental misapprehension of the history of sodomy laws; second, that discrimination on the basis of homosexual status was an unprecedented development of the 20th century and does not have the endorsement of millennia of moral teaching; and third, that tolerance toward homosexuals has increased, resulting in acceptance by many, if not all, mainstream institutions. The historian’s briefs also reference additional briefs filed on behalf of the plaintiffs by The Cato Institute and the American Civil Liberties Union (ACLU).
Arguments are to be heard in late March or early April and a decision is expected by summer.
Supreme Court Rules on Eldred Case
An 15 January 2003 the U.S. Supreme Court ruled on the Eldred v. Ashcroft copyright case and issued a landmark 7 to 2 ruling upholding the Sonny Bono Copyright Term Extension Act. Enacted by Congress in 1998, this measure added 20 years to existing copyright protection. The case centered on Eric Eldred, an online book publisher who sought to post on the Internet the texts of works whose copyrights would have expired if the extension had not been enacted. He sued unsuccessfully in a U.S. District Court and lost again on appeal at the U.S. Court of Appeals for the D.C. Circuit. But early last year, the Supreme Court agreed to hear the case. In anticipation of this, a coalition of publishers, librarians, historians, archivists, and professors of law and economics affiliated with a number of colleges, as well as organizations with interests in intellectual property rights, submitted amici curiae briefs on behalf of Eldred.
Writing for the majority, Justice Ruth Bader Ginsburg stated that Congress had acted within its authority when it extended the length of copyrights on creative works to 70 years after the creator’s death (up from 50 years) and for 95 years (up from 75 years) for works created for corporations. The majority found that Article I, Section 8 of the Constitution grants Congress the authority to confer copyrights for “limited times” and that the Sonny Bono extension indeed was limited. Furthermore, Ginsburg stated the law did not violate the First Amendment as argued by critics.
Justices Stephen G. Breyer and John Paul Stevens, however, dissented from the majority. Stevens concluded that the court was “failing to protect the public interest in free access to the products of inventive and artistic genius.”
Lawrence Lessig, the Stanford University law professor who argued the case before the Court, stated, “If there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has.” Jack Valenti, president and CEO of the Motion Picture Association of America was pleased with the decision, stating “that the Court has reaffirmed the absolute authority of Congress to set copyright terms.”
