Sodomy Appeal May go to Supreme Court
PlanetOut.com Network, April 18, 2002
By Ann Rostow
SUMMARY: A challenge to the Texas sodomy law by
plaintiffs Tyron Garner and John Lawrence may go to the Supreme Court.
The Texas Court of Criminal Appeals declined on Wednesday to hear the
appeal of a 1998 sodomy case involving two Houston men, arrested in their own
home for having sex, so now the case may be headed for the U.S. Supreme Court.
Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund,
expressed shock at the decision, telling the Gay.com/PlanetOut.com Network
that Lambda is "very likely" to appeal the case to the U.S. Supreme
Court, but will make a final decision in the coming days.
On Sept. 17, 1998, Tyron Garner and John Lawrence were thrown in jail for
24 hours on a misdemeanor charge of deviate sexual intercourse, after police
entered their home while responding to a false burglary tip called in by an
From the start, legal experts felt the case seemed tailor-made to contest
the 140-year-old Texas sodomy law, which was revised in 1974 to criminalize
homosexual sex only.
After several lower court hearings, the case went before the 14th District
Court of Appeals, which covers 14 counties around Houston. In June of 2000, a
divided three-judge panel struck down the law, ruling that it
unconstitutionally discriminated on the basis of sex, violating the state’s
Equal Rights Amendment.
But the following March, the full court reversed that decision, and Lambda
Legal Defense appealed to the Court of Criminal Appeals that April. The Court
did nothing for a year, before deciding not to take the case without comment
The refusal to hear the case puts Texas in a quandary. In the mid-1990s,
the state Supreme Court heard a sodomy appeal but avoided taking a stand by
ruling that the question of sodomy belonged in the criminal courts of Texas.
The nine justices on the Court of Criminal Appeals are the final arbiters of
Texas criminal law, and their inaction leaves the constitutional status of the
Texas law in limbo.
"We’re shocked that they refused to hear the case," said Harlow
on Thursday. "It’s very sad that they wouldn’t even hear our
arguments, and it’s troubling because we were appealing to the only one of
the two high courts that was in a position to review the serious
constitutional claims we were making about the statute. And they just said
Harlow said that Lambda, which is lead counsel in the case, is now looking
"very closely" at asking the U.S. Supreme Court to review the
federal constitutional questions at stake. The high court has not addressed
the issue of sodomy laws since it upheld Georgia’s sodomy statute in the 5-4
Bowers v. Hardwick ruling, a decision that has haunted gay rights
litigation for the last 17 years.
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