Texas Ban on Gay Sex Faces New Legal Fight
Activists hope high court will call sodomy law unconstitutional
American-Statesman, July 22, 2002
Box 670, Austin, TX 78767
By David Pasztor, American-Statesman Staff
Its very name—the "homosexual conduct" law—is considered an
affront by most Texas gays and lesbians. But the title itself is merely a
symbolic target for the rage homosexuals feel toward a statute that makes
their sexual lifestyle a crime.
Now, for the fourth time in more than 20 years, gay rights advocates have
launched a major challenge to the law, last week asking the U.S. Supreme Court
to find it unconstitutional.
Three times before they have tried to wipe the statute from the books, and
three times they have failed. Gay rights lawyers hope the legal currents
finally may be turning their way.
"This law is unique in being among a very small minority of state laws
that single out only the conduct of gay people," said Susan Sommer, an
attorney with the New York office of the Lambda Legal Defense and Education
Fund. "It hurts people because it has, since its inception, been used as
a justification for all manner of discrimination against gay men and lesbian
Although most states had anti-sodomy statutes at some point in their
histories, and about a dozen still do, Texas and Kansas remain the only two
with laws specifically prohibiting homosexual acts.
The Texas statute, passed in 1973 when a more general sodomy law was
revised, made it a Class C misdemeanor for adults of the same sex to engage in
"deviate sexual intercourse," specifically defined as oral or anal
sex, even between consenting adults in the privacy of their own homes. The
same acts between heterosexuals are legal, unless performed in public, with a
minor or without consent.
That distinction, gay rights advocates say, makes the Texas law
discriminatory against gays.
"If the majority is going to impose its moral values on the minority,
it has to impose them on itself," Sommer said. "It can’t say, ‘It’s
immoral when you do it, but not immoral when I do it.’"
But persuading a top appeals court to consider the constitutional question
has been difficult. Gay rights lawyers have won some battles in previous legal
efforts but have always lost the war. All three of the ultimate courts with
the power to strike down the law—the Texas Supreme Court, the Texas Court of
Criminal Appeals and the U.S. Supreme Court—have rebuffed past efforts to
directly address the question of whether the statute is an unconstitutional
infringement on privacy and equal protection of the law.
In part, the earlier cases have failed because the argument was
theoretical. Appeals courts often want to see that someone has actually been
prosecuted under a law before they accept a case. The Texas sodomy law’s
supporters were able to point out, correctly, that no one had been arrested
for violating the statute.
That is no longer true.
The Houston case
In 1998, sheriff’s deputies raided the Houston home of John Lawrence,
answering a call about a reported "weapons disturbance" that later
proved to be false. Inside, the officers found Lawrence and Tyron Garner
having sex. The two men were arrested, taken to jail and released the next
Charged with violating the homosexual conduct law, the men ultimately
pleaded no contest. Each was fined $200, plus $141.25 in court costs. Their
appeal to the U.S. Supreme Court, filed Tuesday, is the case gay rights
advocates hope will finally compel a high court to specifically address
"If the court (agrees to hear the appeal), this case presents front
and center the question of whether it’s constitutional," Sommer said.
But Kelly Shackelford, chief counsel for the Liberty Legal Institute, which
supports the sodomy statute, said he thinks it is unlikely the nation’s high
court will agree to take the case.
"I think (the Houston case) is a fairly weak legal argument,"
Sommer, however, is hoping for a break in a long chain of legal
The first serious challenge to the law came in 1979, when Dallas teacher
Don Baker persuaded a federal judge in Dallas to rule the law
unconstitutional. That ruling was reversed by the 5th U.S. Circuit Court of
Appeals, and the U.S. Supreme Court declined to hear Baker’s appeal.
In 1989, five gay men and women filed another lawsuit in state court
challenging the law. A state district judge struck down the law, and a state
appeals court agreed it was unconstitutional. But when then-Attorney General
Dan Morales appealed to the state’s two highest courts, both balked. The
Court of Criminal Appeals decided it had no jurisdiction in the case, and the
state Supreme Court decided the same thing, leaving the question unresolved.
Meanwhile, on a third legal front, Mica England, who is lesbian, sued the
City of Dallas in 1990 after she was denied a job with the Police Department.
Her case cut to the very heart of what critics say is the danger of the
homosexual conduct statute. By admitting she was a lesbian, England
effectively admitted she was a criminal, and the department refused to hire
A trial court found the department’s policy illegal but did not throw out
the statute itself, and the Texas Supreme Court again declined to hear an
appeal that might have settled the issue. The city eventually settled with
England for $73,000, but the underlying legal question remained unanswered.
The statute’s critics hope to gain some momentum from an Arkansas Supreme
Court decision earlier this month throwing out that state’s sodomy statute.
Although the case doesn’t directly compare to Texas law, Sommer said it
reflects a growing will by courts to strike down such laws.
If the U.S. Supreme Court does decide to take on the Texas appeal, it will
revisit a question last addressed in a 1986 Georgia case. Then, the court
decided 5-4 that Georgia could outlaw certain sexual acts, even if they were
performed in private by consenting adults.
Shackelford said the public has an interest in outlawing homosexual
behavior, both for moral and public health reasons, and that he sees no
indication that the court will reverse itself now.
"It’s been addressed by the Supreme Court," Shackelford said.
"They basically said the people can decide what kind of conduct is moral
and what’s not."
Harris County District Attorney Chuck Rosenthal, whose office prosecuted
Lawrence and Garner, said he plans to defend the state law if the Supreme
Court agrees to hear the case. Although it is not unusual for the state
attorney general to assist in defending state statutes, Rosenthal said he has
not asked John Cornyn, the current attorney general and Republican candidate
for U.S. Senate, for help.
The two men seeking to replace Cornyn—one of whom will be in office if
the case is ever argued before the high court—disagree on how it should be
Republican attorney general candidate Greg Abbott said he would
"vigorously" defend the statute if called upon to do so. Democratic
candidate Kirk Watson said he thinks the Harris County district attorney
should deal with the appeal.
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