The Not-So-Hidden Message in State’s Sodomy Law
American-Statesman, July 17, 2002
Box 670, Austin, TX 78767
By Ann Rostow, Special to the American-Statesman
With any luck—hell, even without any luck—the Texas sodomy law is on
its way to history’s unmarked scrap heap of discarded statutes. On Tuesday,
Lambda Legal Defense and Education Fund, the gay community’s civil rights
lawyers, petitioned the U.S. Supreme Court to hear the appeal of Lawrence
and Garner v. Texas. Not only will the court accept the case, but it will
kick the pants off Texas in the process. Just watch.
A Hollywood script writer could not have come up with a starker scenario
than the case at hand. Two Houston men, alone in their bedroom, suddenly find
the police barging through their house looking for a burglar. The police didn’t
find any burglars, but they arrested John Lawrence and Tyron Garner and tossed
the men in jail for 24 hours. The men were arrested under a law that outlaws
sexual intimacy between same-sex life partners.
Texas is one of four states that criminalizes just gay sex, while another
nine [sic: ten] states have sodomy laws that apply to everyone. These nine are
bad enough, as witnessed by the many state supreme courts that have drawn the
conclusion that private, consensual, adult, noncommercial sex is none of the
government’s business. But the foursome of Texas, Oklahoma, Missouri and
Kansas goes further, recognizing the privacy rights of heterosexuals, but
excluding gay couples from those protections. Up until this month, Arkansas
had the same perverse policy, but the state supreme court struck the Arkansas
sodomy statute on both privacy and equal protection grounds July 5.
The case presents some of the worst facts, under one of the worst laws, but
there’s more. One of the reasons that the High Court is likely to accept
review lies in the behavior of the Texas courts. Instead of ruling on the
constitutionality of the law, the two courts of final appeal in Texas have
closed their eyes, put their hands over their heads, and ducked. There is no
actual opinion in Lawrence and Garner v. Texas to appeal. Instead,
Lambda is appealing a non-decision.
Last April, after doing nothing for a year, the Texas Court of Criminal
Appeals declined, without explanation, to hear the case. A few years earlier,
in a different sodomy case, the Texas Supreme Court ruled that it lacked
jurisdiction in the matter. Sodomy, said the justices, is really something for
the Court of Criminal Appeals to handle.
By abandoning its responsibility to clarify important constitutional issues
on behalf of Texans, the Lone Star justice system has left the state’s gay
community in limbo. It takes four justices to agree to hear a case, and those
four are easy to identify: John Paul Stevens, Ruth Bader Ginsburg, David
Souter and Stephen Breyer. It takes five or more to win a case, so add Sandra
Day O’Connor and Anthony Kennedy. This group, not coincidentally, comprises
the 6-3 majority in Romer v. Evans, the 1996 opinion that articulated a
simple idea: The state may not discriminate against gays and lesbians (or any
other identifiable group) based on hostility alone.
Regardless of how Texas pretties up its rationale, there is no way to
disguise the underlying basis of the state sodomy law. We don’t really like
gay couples here in Texas.
The court rejected that excuse six years ago, and they’ll reject it
- Rostow is managing editor of The Texas Triangle.
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