Texas Sex Bust Sparks Challenge
PlanetOut,
November 7, 1998
The outrageous arrest of 2 gay men for having sex at home is just what the legal
strategist ordered to remedy the Texas sodomy law.
The 119-year-old law that makes homosexual oral and anal sex a misdemeanor worthy of a
maximum $500 fine in Texas will be put to the test by two men who were arrested in the
apartment of one of them. Houston police officers were responding to what turned out to be
a false report of an armed robbery September 17, when they came upon Tyrone Garner and
John Geddes Lawrence engaged in sex. The pair were taken to jail and later released on
$200 bail. Now Garner and Lawrence plan to challenge the law with exactly the kind of case
state gay and lesbian activists have been waiting for.
Prosecutions for private consensual sex acts are so rare that the laws are difficult to
challenge, although their impact is frequently felt when they are cited in regards to
other issues, such as discrimination, employment and adoption. Texas activists tried to
raise a civil challenge to the sodomy law in 1994, but the state Supreme Court ruled that
it did not have jurisdiction in the case because the plaintiffs had not been prosecuted
under the sodomy law. In fact, only two or three sodomy cases have been prosecuted over
the last 30 years in the state, and all those involved sex acts that took place in public
jails in view of witnesses. Ironicaly, the infrequent enforcement of sodomy laws has also
been used to justify leaving them on the books. Attorney for Garner and Lawrence Mitchell
Katine, can now say, "For all those people who have said over the years that this
statute is never enforced need to realize that that's not true."
So Texas activists, while outraged about the circumstances of the case, are
enthusiastic about its potential. "We certainly hope to move this forward, and we'd
love to see it move all the way up the ladder and be declared unconstitutional," said
Houston Gay and Lesbian Political Caucus president Clarence Bagby. "We need to get
this [sodomy law] off the books." Harris County District Attorney John B. Holmes Jr.
agrees with the strategy. Although he intends to prosecute Garner and Lawrence under the
presumption that the law is constitutional, he said, "But I've always said that the
best way to get rid of a bad law is to enforce it."
That wasn't the way it worked out in the infamous Georgia case of "Bowers v.
Hardwick," in which the U.S. Supreme Court in 1986 upheld that state's sodomy law,
however. "Bowers" began much like the current Texas case, when police discovered
Michael Hardwick engaged in sex with another man in his own bedroom, after the officers
had entered the house in connection with an unrelated investigation of Hardwick's
roommate. In the end, former Georgia state Attorney General Michael Bowers successfully
defended the right of states to regulate private sexual conduct.
Garner and Lawrence are set to be arraigned before Justice of the Peace Mike Parrott on
November 20. Their case must go through the county court and into the criminal court
system before the constitutional issues can be argued.
The call that led to the arrest of the two Houston gay men came from Roger David Nance.
Harris County Sheriff's Department officers responded to his report of an armed man in an
apartment complex, and he directed them to the apartment where Garner and Lawrence were
found. Nance pleaded no contest and served 15 days in jail for filing a false police
report. David Jones, an attorney for the two men, cited Nance's motive as a
"personality conflict between the caller and the people in the apartment."
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