Last edited: February 14, 2005


Anti-Sodomy Law Challenged

Texas Presents Unique Test Case

Law News Network, November 9, 1999

Nathan Koppel
Email: nkoppel@amlaw.com

In a packed Houston courtroom Nov. 3, the Lambda Legal Defense and Education Fund took aim at Texas’ 119-year old anti-sodomy law, arguing the time has come to declare it unconstitutional.

Titled the "Homosexual Conduct Law," Texas Penal Code 21.06 penalizes oral or anal sex between same-sex couples as a Class C misdemeanor, which carries up to a $500 fine but no jail term.

If the 14th Court of Appeals does not overturn 21.06 in Lawrence and Garner v. State, Texas will remain one of only four states, along with Kansas, Oklahoma and Arkansas, with an anti-sodomy law targeted exclusively at gays. Twelve other states have such laws, but they extend to same-sex and different-sex partners.

At press time, an Arkansas Circuit Court was considering a constitutional challenge to the state’s anti-sodomy law, which is also being advanced by New York City-based Lambda.

The Texas case is unique in that it involves an arrest. According to appellate briefs, Houston police officers arrested John Geddes Lawrence, 56, and Tyron Garner, 32, in 1998 for allegedly engaging in anal sex. Lawrence and Garner pled no contest to the charges.

In other challenges to anti-sodomy laws, including the one in Arkansas, petitioners have filed civil suits proactively, triggering a procedural defense that the suits are not ripe for adjudication since the law has not been enforced against the plaintiffs.

Citing such a procedural defect, the Texas Supreme Court in 1994 held in State v. Morales that it had no jurisdiction to address whether 21.06 is unconstitutional.

While the issue is now squarely before the 14th Court, the Harris County District Attorney’s Office, which is defending the state, has asked the court to show restraint.

"The Legislature is the public policy establisher for the community. It is up to the Legislature to decide what is against the law," says District Attorney John B. Holmes Jr.

In its appellate brief, the state notes that the Legislature in 1974 altered 21.06 so that it would apply only to gays, instead of gays and heterosexuals as it had previously done. This recent activity shows the Legislature continues to believe same-sex sexual conduct is "immoral and unacceptable," the state argues in its brief.

To the contrary, says state Rep. Debra Danburg, D-Houston, the Legislature is merely incapable of sticking its neck out to spare gays from the anti-sodomy law.

"I have filed legislation to repeal 21.06 on a number of occasions and because of the relative controversy, I have been unable to even so much as get a hearing," she says.

But a lack of legislative will does not empower courts to second-guess 21.06, says Lino Graglia, a constitutional law professor at the University of Texas School of Law.

"It doesn’t change the fact that the Legislature must decide issues of social policy," he adds.

STRICT OR RATIONAL?

Arguing first, Ruth Harlow, Lambda’s managing attorney, sketched out her constitutional attack: Section 21.06 violates the 14th Amendment’s equal protection clause because it treats gays differently than heterosexuals, she argued, and it violates the Texas Constitution’s right to privacy.

According to briefs, the defendants were arrested in Lawrence’s apartment; police had entered the apartment to investigate a reported disturbance.

If the Texas right to privacy stands for anything, Harlow said, it must protect "private sexual intimacy by consenting adults."

The panel consisted of Chief Justice Paul C. Murphy and Justices J. Harvey Hudson and John S. Anderson, all Republicans.

The judges’ questions to Harlow focused on what legal standard the court should use in assessing the constitutional viability of 21.06.

The state argues the anti-sodomy law passes muster because there is a "rational basis" for the law, namely the discouragement of immoral behavior and the promotion of family values.

On Nov. 3, though, Harlow said the court should apply a more exacting "strict scrutiny" and strike down the law, because it does not serve a "compelling government interest."

While a legislature can consider social mores in passing laws, she said, "mores [alone] aren’t enough to justify discriminatory classifications."

"Family values," she added, also do not furnish a compelling interest but are merely repackaged "majoritarian moral sentiment."

William J. Delmore III, an assistant Harris County DA, argued the state’s case.

He was also deluged with standard-of-review questions.

Murphy wanted to know what evidence the state has introduced to meet a strict-scrutiny standard.

"There is no evidence on the record," Delmore conceded, "to support a compelling need for this legislation."

He argued, though, that the rational-basis test is applicable because 21.06 does not implicate a fundamental constitutional right.

"Is there a fundamental right to engage in homosexual conduct? I believe there is not," he said.

And the court, he added, does not have the authority to challenge the purported rational basis for 21.06: discouraging immorality.

"Throughout history, there has been a historical, cultural and religious consensus that homosexual conduct is immoral," he said. "Only a majority of the electorate can determine whether that morality has changed."

After the arguments, Houston lawyer Mitchell Katine, who is assisting Lambda, said his clients will take their fight to the U.S. Supreme Court if need be.

"The reaction to this by most people that we speak to is that they can’t believe [the arrest] really occurred," Katine says. "That is one reason it is so important that we go forward. . . The sexual conduct of gays and lesbian people every day and every night in this city is criminalized by the presence of this statute on the books."


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