Texas Court Upholds Conviction of Two Men for Consensual Sex at Home
March 16, 2001
By Colin Wocznicki
Pledging to appeal, Lambda Legal Defense and Education Fund criticized a
ruling from a Texas Court of Appeals Thursday that upheld the states
"Homosexual Conduct" law and reinstated the conviction of two
Houston men for having sex in the privacy of one mans home.
"The government does not belong in peoples bedrooms policing
consensual adult intimacy, nor can it have one rule for gay people and another
one, granting more freedom, for non-gay people," said Lambda Legal
Director Ruth E. Harlow.
Harlow, who argued the case before the Texas court, said, "The State
here condemns lesbian and gay couples in a way that the Constitution does not
Assisted by Lambda Cooperating Attorney Mitchell Katine of the Houston law
firm Williams, Birnberg & Anderson, Lambda said it will continue to
challenge Texas criminal ban on sexual relations between people of the same
Lambda argues that the Texas law poses stark problems of inequality that
conflict with the basic constitutional right to equal protection and is
contrary to the right to privacy that all Texans enjoy.
In a dissent, two justices on the Fourteenth Circuit Court of Appeals
emphasized that "Equal protection simply requires that the majority apply
its values even-handedly."
Rejecting the only asserted justification for the law, the dissent stressed
that, "It makes no sense for the State to contend that morals are
preserved by criminalizing homosexual sodomy while supporting sodomy by
heterosexual couples, including unmarried persons."
The case began September 17, 1998, when sheriffs deputies, responding to
a false report of an armed intruder, entered a private Houston apartment where
they found the pair having sex.
Both men were arrested and jailed for over 24 hours before being released
on $200 bond each. A county criminal court convicted John Lawrence and Tyron
Garner of a Class C misdemeanor, which carries up to a $500 fine. Lambda
appealed on their behalf.
Last June, a panel of the appeals court held that the statute violates the
Equal Rights Amendment of the Texas Constitution because it punished only
certain couples for oral or anal sex without adequate justification. Texas has
had a sodomy law since 1860, but decriminalized such activities by
different-sex partners in 1974.
On motion by the state, the entire appeals court reheard the case, ruling
7-2 to overturn the panels ruling.
Said Harlow, "Contrary to this decision, the courts role is to
protect individual liberties when the legislature and prosecutors have
overstepped." She said that Lambda would petition for review in the Texas
Court of Criminal Appeals.
Katine added, "Its a sad day in Texas when our courts do not rise
to the occasion of having to enforce vital constitutional principles."
Texas now is one of only four states, along with Arkansas, Kansas and
Oklahoma, that prohibit consensual sex acts between same-sex partners only.
Lambda recently argued its legal challenge to the Arkansas law, Picado v.
Jegley. Twelve other states still prohibit consensual oral and anal sex
between different- and same-sex partners alike, despite the nationwide trend
toward abolishing such invasive criminal laws.
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