Legal Assaults Against States’ Anti-Sodomy Laws Multiply
Los Angeles Times,
December 3, 1998
Times Mirror Square, Los Angeles, CA 90053
Fax: 213-237-7679 or 213-237-5319
Email: letters@latimes.com
By Claudia Kolker, Times Staff Writer
HOUSTON — When Roger Nance got mad at two male acquaintances, he
also got mean, calling the Harris County sheriff with the false report of a crazed gunman
in one of the ex-friends’ apartment.
As Nance likely guessed, the only thing deputies found were 55-year-old John Lawrence
and 31-year-old Tyrone Garner, having sex. What Nance probably never imagined, though, was
that the two actually would get arrested. Within days, what began as a personal spat
became a statewide civil liberties case with national reverberations.
Charged with "homosexual conduct," a misdemeanor under a rarely used Texas
law, Lawrence, a medical technician, and Garner, a shipyard worker, spent several hours in
jail in September before posting $200 bond. Soon after, joining with civil liberties
lawyers and national gay-rights activists, the pair launched a legal challenge of
Texas’ 119-year-old anti-sodomy law. Pleading no contest last month, they were fined
$125 and promptly appealed to county criminal court. (Nance, for his part, confessed to
falsely reporting a crime and spent 15 days in jail.)
Lawrence and Garner’s case joins a growing wave of challenges to state anti-sodomy
laws. Just last week, the Georgia Supreme Court struck down that state’s anti-sodomy
statute on the grounds that it infringes upon the state’s constitutional protection
of privacy.
The decision countered a landmark 1986 U.S. Supreme Court decision (Bowers vs.
Hardwick) upholding Georgia anti-sodomy laws. Partly in response, gay rights activists
focused on bringing cases on the state level, since state constitutions tend to have
stronger privacy clauses.
The statutes under attack date back to Henry VIII, who in 1533 outlawed all anal sex if
it involved at least one man. Only in the late 19th century did U.S. sodomy law include
oral sex.
Thirteen states ban consensual oral and anal sex, regardless of sexual orientation;
Arkansas, Kansas, Oklahoma, Missouri and Texas ban homosexual sodomy only. California
repealed its ban in 1975.
The recent decision in Georgia delighted activists at the Lambda Legal Defense and
Education Fund, lead counsel for Garner and Lawrence.
But the Rev. Lou Sheldon, chairman of Anaheim’s Traditional Values Coalition,
criticized the ruling.
While the Georgia decision won’t influence other states directly, it does reflect
a national trend, said David Cole, a constitutional law professor at the Georgetown
University Law Center.
‘The Georgia Supreme Court is by no means a liberal body," he says. "The
fact that they decided this case virtually unanimously, by a 6-1 vote, reflects a broader
movement . . . that recognizes the protections for privacy override efforts by the
community to dictate how consensual adults treat each other in private."
Meanwhile, activists are leading similar challenges in Louisiana, where sodomy is a
felony, Arkansas and Maryland. These suits argue that anti-sodomy statutes brand gays as
lawbreakers and expose them to discrimination in housing, work and custody rulings.
The Texas test case is distinctive, though, in that its subjects were arrested for
consensual sex inside a private home. In fact, the incident likely wouldn’t have led
to an arrest had it occurred in the city of Houston rather than its northeastern
outskirts.
Even when arrests are made, prosecution is rare, says Houston lawyer David Jones, an
attorney for Garner and Lawrence. Harris County Dist. Atty. John Holmes facilitated the
challenge, however, by declaring that he was obliged to prosecute because there was
adequate evidence. Nevertheless, defendants willing to appeal rather than sink into
anonymity represent a rare breed, lawyers say.
Protected by legal and public relations representatives, Lawrence and Garner have
spoken publicly only once, at their arraignment.
"I hope that the law changes," Garner said. "I feel like my civil rights
were violated and I wasn’t doing anything wrong."
Last week, Garner ran afoul of the law again, arrested on suspicion of assaulting
Nance, the informant, at a hotel. The charges were dropped the next day.
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