On behalf of his clients, lawyer Mitchell Katine fought Texas' anti-sodomy laws - and won. But much remains to be done for gay rights.
As a lawyer for more than 15 years, Mitchell Katine had received a lot of weird, baseless calls. This was not one of them.
In 1998, an activist in Houston's gay community called Katine and asked him if he would be interested in taking the case of two men, John Lawrence and Tyron Garner, charged with violating Texas' Homosexual Conduct Statute by having sex in the privacy of their own home. "I get a lot of crazy calls; I didn't think it was true," Katine recalls.
Katine asked for a police report, which detailed how Harris County Police, responding to a call that "an armed man was going crazy," invaded a house at John Lawrence's address. When police entered the home, there was no gun-wielding man, just Lawrence and Garner having sex.
Police arrested the men on charges of violating the state's Homosexual Conduct Statute, which criminalized sex between two men or two women.
Katine took the case all the way to the U.S. Supreme Court as a member of the men's legal team. He will speak on "The Downfall of Sodomy and the Future of Gay America" at Trinity University next week.
After pleading no contest, Lawrence and Garner were convicted of the Class C misdemeanor and paid a $200 fine. But with the conviction on their record, the men would have been required to register as sex offenders, forbidden to work some jobs. "They were criminals under the statute," says Katine. "I explained to them that this wouldn't be typical, that we needed to agree with the facts of the case, but that we would challenge the statute. There was a big risk that we would not be successful."
Several appeals later, in 2003, the U.S. Supreme Court reversed its 1986 decision, Bowers v. Harwick, and found in a 6-3 decision Texas' and all states' sodomy laws to be unconstitutional. Thirteen states still had anti-sodomy laws on the books, including four that limited the laws to gays.
Within a year of the Supreme Court decision, two state courts allowed same-sex marriage, Katine says, but other courts are still trying to bypass the ruling or interpret it in regards to gay marriage, adoption, or foster parenting. "Florida courts are upholding the ban saying it doesn't think it applies. Courts are trying to determine what the Supreme Court was trying to say. There are things we will get clarity on."
The Bush administration supports a constitutional amendment prohibiting gay marriage, a move Katine compares to the past attempt to ban interracial marriage in the Constitution.
In Texas, gay and lesbian rights could take a beating in the next legislative session, which starts in January. During the 2003 session, the legislature tried unsuccessfully to prohibit gays and lesbians from serving as foster parents.
"We're not looking for expanded rights, just equal rights," Katine says. "But I'm anticipating many legislators would like to stop second-parent adoption." Katine and his partner used second-parent adoption with their two children, who are from Guatemala.
Ironically, although the Supreme Court struck down Texas' statute, it lingers in the state code. "It could take five or 10 years before someone has the courage to pass a bill taking it off the books," Katine says. •
By Lisa Sorg