Attorneys In Sodomy Case Awaiting States Strategy
First document to lay out states defense of homosexual conduct
statute is due at state appeals court by July 7
June 18, 1999
3000 Carlisle, Suite 200 Dallas, Texas 75204
By Dennis Vercher
Attorneys for two Harris County men challenging the Texas sodomy law say the
states defense of the statute will become apparent only when county attorneys file
papers with a Texas appeals court.
The states brief must be filed by July 7, said Suzanne Goldberg, an attorney for
Lambda Legal Defense and Education Fund. The New York-based litigating foundation has
assumed the lead role in presenting constitutional arguments against the sodomy law.
"The state hasnt offered any defense for the law yet, so we dont know
what they will argue," Goldberg said. The Lambda staff attorney spoke with a reporter
during a visit to Dallas last week, where she addressed a gay attorneys group and
conducted a continuing education class for lawyers.
Goldbergs brief, previously filed with the appeals court, contends that the law
violates gays and lesbians rights to privacy and equal protection.
The statute, Sec. 21.06 of the Texas Penal Code, outlaws oral and anal sex between
members of the same gender. Those convicted of the Class C misdemeanor are subject to a
fine of up to $500.
The plaintiffs, Tyrone Garner, 31, and John Geddes Lawrence, 55, were arrested last
September after a disgruntled friend summoned authorities to Lawrences northeast
Harris County apartment. The friend told sheriffs deputies that an armed man was
inside. But when deputies entered, they discovered Garner and Lawrence engaged in anal
The men were charged with violating the sodomy statute. They pleaded no contest before
a Harris County justice of the peace on Nov. 20 and were assessed fines of $125 each. The
men appealed the case to a county court. There, they also pleaded no contest and appealed,
moving the case to the Court of Appeals for the 14th Judicial District.
At the appeals court
Goldberg declined to speculate when the appeals court would schedule oral arguments.
But she said the case should move more swiftly than a previous challenge to the law.
That case, Morales v. Texas, was filed in 1990 and ended in 1994 when the Texas Supreme
Court, after hearing oral arguments, ruled that it had no jurisdiction over the
constitutionality of a criminal statute.
In Texas, the state Supreme Court ordinarily hears appeals of civil matters. The Court
of Criminal Appeals, an independent body, is the states highest court of appeals in
The Court of Criminal Appeals would not take the Morales case because none of the five
plaintiffs in the 1990 case had been charged with violating the law.
Thats why gay activists are enthusiastic about the current appeal, which does
involve plaintiffs convicted of violating the statute. Jurisdictional arguments and the
right of the plaintiffs to press the appeal should not be an issue in this case, attorneys
But the case may not end in the Texas courts. In her brief, Goldberg also contends that
the sodomy law violates both the Texas Constitution and the U.S. Constitution. If the
plaintiffs receive an adverse ruling from Texas appeals courts, they retain the option of
filing an appeal with the U.S. Supreme Court.
In Bowers v. Hardwick, a 1986 decision appealed from Georgia, justices upheld the
Georgia sodomy law. The ruling is the U.S. Supreme Courts standing precedent
affirming the right of states to pass laws regulating private, consensual sexual behavior
involving same-gender participants.
Now, more than a decade later, Goldberg believes the high court might be willing to
revise its views - particularly given its 1997 decision striking down a Colorado measure
forbidding the passage of gay rights laws.
That decision, in Romer v. Evans, "lays the groundwork for decisions in other
cases, that gay people deserve to be treated equally," Goldberg said. "There is
nothing in the Supreme Courts jurisprudence that suggests we wouldnt win this
case if we have to take it that far."
Goldberg said she hopes the case will be resolved favorably in the Texas courts.
Still, she added, Lambda is likely to pursue an appeal to the U.S. Supreme Court if
"I cant say for definite at this point, but we would probably take the case
as far as it needs to go to get a positive outcome," she said.
Last month, Goldberg participated in oral arguments before the Arkansas Supreme Court
by nine plaintiffs seeking to strike down the state sodomy law there. As in Texas, the
Arkansas law applies only to acts of sodomy between persons of the same gender.
But the Arkansas appeal was different, she said, because arguments were limited to
whether the plaintiffs had the right to file suit in the first place. None of the nine had
been accused of violating the law. Instead, they argued that the existence of the law
fostered discrimination and hate crimes.
"You cant predict the outcome of a case after oral arguments, but I felt
that we got a fair hearing," Goldberg said.
The state has asked the Arkansas justices to dismiss the case.
In response, Goldberg said, "We argued that the plaintiffs live under the constant
threat of prosecution. . . . In addition, we argued that by subjecting gay people to an
unequal rule, our clients are harmed. It stigmatizes gay people as criminals, and
thats an injury."
Lambda is also providing technical assistance to sodomy law challenges advancing in
state courts in Louisiana and Virginia, Goldberg said.
"Challenging sodomy laws is one of our top priorities," she said.
"Were honored to be joining our Texas cooperating attorney [Mitchell Katine of
Houston] to do that here."
Besides arguing "test" cases in state and federal courts, Lambda also
provides a range of assistance to gay and lesbian people needing legal help, Goldberg
"Every case is not a test case, but even when we dont get involved directly
representing a client, we have a lot of resources to offer," she said. "We
sometimes write briefs or offer strategic assistance. We also can connect people to
organizations and lawyers who can assist them."
The organization also provides legal assistance to attorneys representing clients with
HIV-related claims, Goldberg said.
The staff attorney said she personally is involved in many cases seeking asylum for
gays and lesbians facing persecution in other countries.
Lambda is interested in providing greater support throughout Texas, she added.
On a personal note, Goldberg is pregnant with her second child, which she and partner
Paula Ettlebrick expect in September. The couple have a 2-year-old son for whom Goldberg
is also the birth mother.
Despite her impending maternity leave, Goldberg expects to be back at work to
participate in oral arguments on the sodomy law challenge at the Texas appeals court, she
Persons seeking Lambdas assistance may contact the organization at 212-809-8585,
or visit the organizations website at www.lambdalegal.org.
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