Texas Sodomy Arrest Opens Legal Battle for Gay Activists
November 29, 1998
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By Paul Duggan, Washington Post Staff Writer
HOUSTON Rarely does a police officer witness violations of
Section 21.06 of the Texas criminal code, the section entitled "Homosexual
conduct." And almost never is an arrest made under the 119-year-old statute. So what
happened recently to John Lawrence and Tyrone Garner, in the supposed privacy of
Lawrence's bedroom, was highly unusual.
The two men were having sex when a Harris County sheriff's deputy walked into the
apartment on another matter, saw what they were doing and hauled them off to jail.
"In all candor, I don't believe we've ever made an arrest before under those
circumstances," said Capt. Don McWilliams, a sheriff's spokesman. But the law is the
law, he said. "We can't give our deputies a list of statutes we think they should
enforce and a list of statutes we want them to ignore."
The handcuffing of Lawrence and Garner that night did more than just satisfy the
deputy's obligation to enforce the law. It opened a new legal front in a long campaign by
gay activists across the country to do away with such statutes, which they contend are
Georgia's highest court issued a ruling Monday that struck down that state's law
against consensual sodomy, but statutes prohibiting the practice remain on the books in
Puerto Rico and 19 states, including Maryland and Virginia. Five of the states, including
Texas, limit the ban to same-sex couples. Now lawyers have seized on the Houston case as a
vehicle to again contest the legitimacy of the Texas statute, which has survived three
legal challenges since the early 1980s.
Among similar court challenges in four other states and in Puerto Rico, four are
lawsuits, including one in Maryland -- where a judge ruled last month that homosexual oral
sex is not illegal but refused to declare the sodomy statute unconstitutional. Only two
cases, in Minnesota and now Texas, stem from criminal charges. And as gay activists see
it, no case more vividly illustrates the threat such laws pose to privacy than the Sept.
17 arrests of Lawrence and Garner.
Answering what turned out to be a bogus report of a man behaving erratically with a
gun, Deputy Joseph Quinn arrived at an apartment building east of Houston about 10:30 p.m.
and met Roger Nance, 41, who had phoned in the complaint, authorities said.
Nance directed Quinn to apartment No. 833, Lawrence's apartment. The deputy entered
through the unlocked door with his weapon drawn. After finding no one with a gun, Quinn
later wrote in his report, he "observed [Lawrence] engaged in deviate sexual conduct,
namely, anal sex, with another man." Lawrence, 55, and Garner, 31, spent the rest of
the night behind bars before each was let out on $200 bail.
Nance's false report, for which he served 15 days in jail, stemmed from "a
personality dispute" between him and the two men, the sheriff's department said.
Lawrence and Garner pleaded no contest earlier this month to violating the anti-sodomy
statute and were fined $125 each by a justice of the peace. Now the stage is set for what
lawyers predict will be a long appeals process, one they hope will end with the state's
highest criminal appeals court invalidating the law as an infringement on privacy as
protected by Texas Constitution.
The arrests in some ways delighted gay activists. They said the case not only provides
a long-awaited legal platform to challenge the Texas law, but also has a public-awareness
benefit, offering facts that underscore their warnings about privacy. Here, they contend,
was an instance of government authority literally reaching under a person's blankets.
"You can't get more private than a bedroom," said Suzanne B. Goldberg, a
lawyer with the Lambda Legal Defense and Education Fund, which is representing the men.
In the other criminal case resulting in a legal challenge, a Minnesota bartender was
arrested for engaging in oral sex with a woman in the bar after closing time. Minnesota's
law, which applies to all couples, includes oral sex in the definition of sodomy, as does
the Texas law. But in Minnesota, police witnessed the offense after the fact, while
viewing a videotape from the bar's security camera during an unrelated investigation.
The Texas case "should really show the public how invasive these laws can
be," said Michael Adams, a lawyer with the American Civil Liberties Union's National
Gay and Lesbian Task Force, which is handling the Minnesota appeal. "It shows that
the police really do intrude into the home. And the fact that people have to live in fear
of that is terrible."
Goldberg said Lawrence, who works in medical technology, and Garner, a shipping clerk,
did not want to be interviewed. McWilliams said Quinn also has declined to comment on the
As they have in other states, conservative groups voiced support for the Texas law on
Cathie Adams, president of the Eagle Forum's Texas chapter, said the law banning
same-sex sodomy helps maintain a distinction between traditional couples and those
"who practice homosexuality," which she called "unnatural and
In addition to citing privacy concerns, activists have complained that such laws often
are used as a pretext for discriminating against homosexuals in employment, child custody
and other matters.
In one earlier, unsuccessful challenge to the Texas law, for example, an openly lesbian
job applicant sued the Dallas Police Department for refusing to hire her. The department
said it could not employ her because it presumed she was routinely violating the law in
private, by the nature of her homosexuality. The city now has an ordinance barring job
discrimination based on sexual orientation.
Wyatt Roberts, chairman of the American Family Association of Texas, said he favors
retaining the Texas statute so it can be used as it was in Dallas.
Homosexuality "speaks for a person's character," Roberts said, and ought to
be a legal basis for denying homosexuals child custody and certain jobs. "I think
most people in Texas respect a person's right to privacy," he said, "while at
the same time they think homosexuality should be discouraged."
In an earlier challenge to the now-defunct Georgia law, which banned sodomy by all
couples, the U.S. Supreme Court upheld the statute in 1986 in a case that focused on the
privacy issue. The court said the U.S. Constitution "does not confer a fundamental
right upon homosexuals to engage in sodomy."
But the ruling noted that state courts may strike down such laws if they are found to
violate privacy protections that are guaranteed or implicit in state constitutions.
That was the basis for the Georgia Supreme Court's ruling this week, one that gay
activists hope will be repeated in the other state courts. In addition to the cases in
Texas, Minnesota, Maryland and Puerto Rico, challenges are pending in state courts in
Arkansas and Louisiana.
Citing the U.S. Constitution's equal-protection clause, activists said they also may
eventually begin federal court challenges to the Texas, Arkansas, Oklahoma, Kansas and
Missouri anti-sodomy laws, which apply to same- sex couples but not heterosexuals.
In a federal lawsuit challenging the Texas law on privacy grounds in the early 1980s, a
gay man prevailed in U.S. District Court in Dallas. But a federal appeals court reversed
the ruling and upheld the statute in 1985, and a year later the U.S. Supreme Court decided
the Georgia case.
Two state court challenges to the law, including the case involving the Dallas police
force, were dismissed in 1994 by the Texas Supreme Court, which ruled that the legitimacy
of a criminal statute in Texas cannot be contested through a lawsuit, that the challenge
must arise from a criminal case.
Activists have waited four years for such a case. Now they have it.
Five states prohibit consensual sodomy among same-sex couples only; 14 states plus
Puerto Rico prohibit consensual sodomy among all couples.
States with laws prohibiting consentual sodomy among all couples: Virginia, Maryland*,
Idaho, Utah, Arizona, Minnesota*, Louisiana*, Mississippi, Alabama, Florida South
Carolina, North Carolina, Massachusetts, Michigan, Puerto Rico*
States with laws prohibiting consensual sodomy among same-sex couples only: Oklahoma,
Texas*, Kansas, Arkansas*, Missouri
* States facing legal challenge.
NOTES: In some jurisdictions, oral sex is included in the definition of
sodomy. In the most recently decided case, the Georgia Supreme Court struck down Georgia's
anti-sodomy statute on Nov. 23, ruling that it violated privacy rights guaranteed by the
SOURCE: The Lambda Legal Defense and Education Fund, and the American
Civil Liberties Union's National Gay and Lesbian Task Force of the American Civil
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