News Release

January 16, 2003

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Cato Institute to File Amicus Brief in Texas Sodomy Case
Supreme Court to consider whether states can ban consensual same-sex act

WASHINGTON -- Constitutional law scholars at the Cato Institute are today filing an Amicus Curiae brief for the United States Supreme Court's consideration in Lawrence v. The State of Texas, to be argued later this term.

The Lawrence case raises the question whether Texas's Homosexual Conduct Law -- which criminalizes consensual same-sex sodomy, even when conducted in the privacy of one's home -- violates the 14th Amendment of the Constitution. Cato's brief, drafted by William Eskridge, John A. Garver Professor of Law at the Yale Law School, argues that the Texas statute violates the three main provisions of section 1 of the amendment: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause.

"By singling out only homosexual sodomy," said Roger Pilon, Cato's vice president for legal affairs, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick, the 1986 decision that upheld, under the Due Process Clause, a Georgia statute that criminalized homosexual conduct. That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans."

As an alternative, Cato's brief also asks the Court to revisit the long-ignored Privileges or Immunities Clause, which was meant by the framers of the 14th Amendment to be the principal safeguard for liberty against state actions. "The time has come," said Pilon, "to revive the first principles of the 14th Amendment."