This article has been published with the
permission of attorney Mitchell Katine. Visit Mitchell Katine online at http://gaymarriagelawyers.com/Texas.htm
Lawrence and Garner attorney Mitchell Katine reflects on the
case that changed America and the day of the landmark decision
On the morning of June 26, I was sitting at my desk,
surrounded by television cameras and newspaper reporters as we waited for one of
the most significant U.S. Supreme Court decisions in the last hundred years.
Earlier that Thursday morning, I had called Lambda Legal in New York to request
that they contact me as soon as they heard anything. I knew I would receive the
news of the decision within a few minutes of its release, but I didn’t know if
it would come by e-mail, telephone, or some other means.
Almost five years before, John Lawrence and Tyron Garner
contacted me after their arrest. I immediately knew that this case was unique
because sheriff’s deputies arrested two consenting adults for having sex in
the privacy of their home on the sole charge of violating Texas Penal Code §
21.06, otherwise known as the Homosexual Conduct Law.
Since September 1998, I have had the opportunity to get
to know John Lawrence and Tyron Garner on a personal level and to observe the
transformation of this case from a local justice of the peace court case to a
case that held extreme significance for gay and lesbian people throughout the
John and Tyron are extraordinary and regular guys at the
same time. Throughout the years that this case worked its way through the
courts, John and Tyron allowed their lawyers to proceed with the case in the
manner necessary to succeed while at the same time seeking no personal gain or
Regardless of the risks of going forward, John and Tyron
were willing to go all the way based on the knowledge that they were doing the
right thing and based on the hope that the Supreme Court would rule likewise.
Had the Supreme Court not taken the case, or if the ultimate decision was not in
their favor, they both would have had this criminal conviction on their records
for the rest of their lives.
I realized from the beginning that the facts of this
case were compelling and the law in this case was unjust. However, there have
been many important cases the Supreme Court has received but has declined to
consider. This could have been that type of case. Nevertheless, we received word
in early December of last year that the Court accepted the Lawrence v. State of
Texas case and that we were all going to Washington, D.C.
The Supreme Court set March 26 as the day the case was
to be heard. Oral arguments for John and Tyron’s case were to be presented by
Paul Smith, a gay attorney with a Washington, D.C., law firm, who had already
argued several cases before the Court. Months before the announcement, I applied
for a special license and became admitted as an attorney before the Court. I
obtained this license in anticipation of going to the Supreme Court and being
able to sit in a special section close to the Justices reserved for attorneys
licensed by the Court. Although Tyron was not able to attend oral arguments, I
was privileged to travel with John.
John and I flew to Washington, D.C., together, and I
think that we were in awe throughout the entire trip. Neither John nor I had
ever been to the Supreme Court and did not know what to expect on our first
There is limited seating at the Supreme Court, so if you
want to get a seat, you must get there early and wait in line. The sun had not
yet come up when I arrived at the Supreme Court building, but I was greeted by a
line of law students who had slept in line for the past two days. I visited with
a few who had their sleeping bags and breakfast in hand and discussed the oral
arguments and issues of the case.
Later, in the courtroom, I was struck by the way in
which the Justices questioned Paul Smith and Harris County District Attorney
Chuck Rosenthal. Many of their questions were from a practical perspective,
dealing with various items such as gay adoptions and adultery. It was clear to
me that the Justices were expressing their opinions out of a reflection of their
thinking and legal analysis. Justice Scalia’s questioning made his opposition
to homosexuals clear, while some of the other Justices expressed their dismay at
government intrusion into the home. There were moments of laughter and
astonishment based on the various questions by the Justices. At the end of the
day, I think that everyone on our side of the case could not help but feel that
Paul Smith had made an excellent presentation.
Nevertheless, it was difficult to try to predict the
outcome of the case due to the potential misinterpretation of some of the
questioning. Between March 26 and the day that the decision was rendered on June
26, I never assumed that the case was a definite win, and always held in reserve
the possibility that it could have been a total loss. Had we lost this case, the
impact on me personally would have been devastating.
I have been in a relationship with my partner, Walter,
for almost four years, and we have adopted two babies together. My partner and I
try to present a very positive, healthy, and loving atmosphere in front of the
children, and it is important to us that our children learn to be honest and
law-abiding citizens. However, to proceed as gay men in parenting these
children, and simultaneously being considered criminals by the state of Texas
would have been a very difficult challenge. If there was a law that classified
us as criminals based on our relationship, how could we teach our children to
respect the law?
These thoughts passed through my mind as I sat at my
desk. At 9:12 a.m., the first word of the decision came from my 67-year-old
mother, Loni, who lives with my father in a retirement community in Fort
Lauderdale, Florida. My mother was watching MSNBC and hearing the news report,
she picked up the telephone and called me. As the television cameras were
rolling and the reporters hung on to every move and word that I said, I heard my
mother say, “You won, son. You won.”
Throughout the morning, I received additional reports as
they were released to the media and soon learned that the Supreme Court had made
a decision that was greater than my highest hopes. Little did I anticipate that
the forthcoming decision would go much further than simply releasing John and
Tyron from the wrongful conviction.
Throughout my legal career, which began in 1985, I have
seen the Supreme Court case of Bowers v. Hardwick used over and over in many
different cases to discriminate against gay and lesbian people, as well as
heterosexual people, engaged in private activities in their home. One of the
three questions presented to the Supreme Court in Lawrence v. State of Texas was
whether Bowers v. Hardwick should be overruled. This was the broadest and
boldest action the Court could have taken, and therefore, I felt was the least
likely for it to do.
There are special considerations for the Supreme Court
to overrule one of its prior decisions. In this case, the Court explained that
many of the historical statements used to support the prior Bowers opinion were
wrong and provided examples of how many states have abolished their own sodomy
statutes. Hence, when I learned that the Court had overruled Bowers, my
excitement as to the future possibilities was immeasurable.
The Lawrence majority opinion, written by Justice
Kennedy, contains many strong statements reaffirming the right to privacy and
the rights of gay and lesbian people as included in the Constitution’s
“This, as a general rule, should counsel against
attempts by the State, or a court, to define the meaning of the relationship or
to set its boundaries absent injury to a person or abuse of an institution the
law protects. It suffices for us to acknowledge that adults may choose to enter
upon this relationship in the confines of their homes and their own private
lives and still retain their dignity as free persons. When sexuality finds overt
expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring. The liberty protected by the
Constitution allows homosexual persons the right to make this choice.”
For the Supreme Court to recognize that sexual practices
engaged in by persons who have adopted a “homosexual lifestyle” come under
the right to liberty under the due-process clause is truly a historic moment in
the development of the nation. In concluding the opinion, Justice Kennedy makes
it clear that the Constitution is evolving and that each person can invoke the
principles of the Constitution in their own search for greater freedom.
Now that the case is over and Bowers v. Hardwick is a
part of history and can no longer be used against gay and lesbian people, we
must look to the future and the work that is left to be done to achieve true
equality as people in America.
Public opinion needs to be the focus of our work. In
order to achieve success in the end, we will need to persuade public opinion
that gay and lesbian people are not seeking special rights but only equal
rights. In all survey reports that I saw, the numbers confirmed that public
opinion regarding gay and lesbian people have improved. The Lawrence decision is
a step in the right direction that may be used to achieve some, if not all, of
the rights that are needed. With regards to marriage, I certainly believe that
gay and lesbian people should have the same right to marry as their heterosexual
John and Tyron are truly the heroes in this story, and
Lambda Legal is the fighting force behind the ultimate achievement. When John
and Tyron called me in 1998, it was the right time for the right case. The world
feels like a different place since 1998. I am certainly happy to say that it
feels like a safer and friendlier place.
Personally, the response to the Lawrence decision has
been tremendous. I have received hundreds of e-mails and calls from people I
know and people I don’t know. I have received bouquets of flowers
congratulating me on the case. I have received telephone calls and personal
greetings from people who were weeping and explained that they have been waiting
for this day their entire lives. John and Tyron are thrilled by the decision
and, I believe, now truly appreciate the significance of this case, which began
with such unfortunate circumstances and has ended with such glory.
My children, Sebrina and Sebastian, are not yet one year
old. However, I am saving the newspaper clippings and television reports for
them. When they are old enough to understand what has gone on during the first
few months of their lives, I will be able to show them that I had a small part
in helping make Texas and the entire country a free place for them to live and
Mitchell Katine, an attorney with Williams, Birnberg
& Anderson L.L.P, reflected on the prospects for the Lawrence case for our
March 2002 issue [“Making History”]. Josef Molnar worked with Katine on that
essay and this one.
article has been published with the permission of attorney Mitchell Katine.
Visit Mitchell Katine online at http://gaymarriagelawyers.com/Texas.htm