Trachtman and Simon File Brief in Historic Gay Rights Case

Kramer Levin has filed an amicus brief in Lawrence v. Texas, the potentially historic gay rights case now pending in the U.S. Supreme Court. Lawrence concerns the constitutionality of Texas's Homosexual Conduct Law, which criminalizes certain consensual sexual conduct only between same-sex partners. The Court is being asked to overrule Bowers v. Hardwick, the 1986 decision holding that the right to privacy did not extend to the intimate lives of gay people, or in the alternative to strike down the sodomy law on basic equal protection grounds. While Texas has defended the law purely as an expression of local morality, right wing organizations (including one that filed an amicus brief in opposition to certiorari) have attempted to justify the law as a "public health" measure aimed at controlling the spread of HIV/AIDS. Our brief, prepared by partner Jeff Trachtman and associate Norm Simon, with valuable input from associates Eric Shimanoff and Michael Sternhell, responds to this argument on behalf of a consortium of mainstream public health and AIDS organizations. The brief argues that (1) the Court should not entertain a purported rationale that the State itself has not embraced, (2) the law is so grossly over and underinclusive in the types of conduct it proscribes that it cannot be taken seriously as a public health measure, and (3) the law, in actual effect, undermines legitimate AIDS prevention efforts and inflicts harm on lesbians and gay men.