Last edited: February 14, 2005

Court May Review Texas Sodomy Law

Houston Chronicle, November 3, 2002
801 Texas Avenue, Houston, TX 77002
Fax: 713-220-6575

By Patty Reinert, Houston Chronicle Washington Bureau

WASHINGTON—Responding to a "weapons disturbance" tip one fall night in 1998, Harris County deputies burst into John Lawrence’s Pasadena apartment to find Lawrence having sex with another man.

The gun report was bogus. But police handcuffed Lawrence and his partner, Tyron Garner, and hauled them off to jail in their underwear.

The two men were charged with violating Texas’ Homosexual Conduct Law.

Passed in 1973, the little-known and rarely enforced law makes it a crime for people to engage in "deviate sexual intercourse," defined as oral or anal sex, with a person of the same gender.

Lawrence, then 55, and Garner, then 31, spent a night behind bars, pleaded no contest to the charges and paid a $200 fine.

The person who called police, an acquaintance of Garner’s, was convicted of filing a false police report. But Lawrence and Garner were left with a stigma. They decided to fight back.

Now, four years later, the U.S. Supreme Court is mulling whether to hear their case, and Lawrence and Garner, who were "outed" as gay when their police mugshots hit the press, have become a national symbol for gay and lesbian rights.

It takes four justices to accept a case; five to decide it. And the court’s recent demand that foot-dragging government lawyers file their response brief indicates the justices are seriously considering taking this one. Court watchers speculate that the court’s liberal bloc—Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Stephen Breyer—could decide before year’s end to push the case onto the court’s calendar.

If the case clears that hurdle, the court could use it to settle how far government can go in regulating something as private as consensual sex among adults, homosexual or heterosexual, in their own bedrooms.

"We’re not talking about having sex in public. We’re not talking about having sex with children. We’re not talking about prostitution," said Mitchell Katine, a Houston lawyer who represents Lawrence and Garner. "We are talking about what consenting adults do in the privacy of their homes. The government should not be involved in this."

Bill Delmore, a Houston assistant district attorney assigned to defend Texas’ sodomy law, concedes that his office got into the case "a little reluctantly."

In fact, Delmore said he had hoped that Lawrence and Garner’s case would simply get lost among the hundreds of petitions filed with the high court each year. He initially decided not to risk calling more attention to it by filing a response brief. He relied instead on the existing record in the case.

But then the court requested a brief.

Sodomy laws, which once existed in every U.S. state, have been thrown out in most. Nine states—Louisiana, Mississippi, Alabama, Florida, South Carolina, North Carolina, Virginia, Idaho and Utah—still consider sodomy a crime for heterosexuals as well as homosexuals. But laws in Texas and three other states—Kansas, Oklahoma and Missouri—specifically target only gay men and lesbians.

In Texas, sodomy once was outlawed for everybody. But the law was changed in 1973 so that it now applies only to same-sex couples. For them, engaging in oral or anal sex is a Class C misdemeanor, punishable by a maximum $500 fine; the same sex acts performed by opposite-sex couples are legal.

If the high court takes the Texas case, it would be the first time it considered the constitutionality of sodomy laws since it upheld Georgia’s in 1986. That law, which made sodomy by anyone a crime, has since been repealed.

Katine and his co-counsel, Ruth Harlow, of the New York-based Lamda Legal Defense and Education Fund, say Texas’ sodomy law is different from the law the court last reviewed because it singles out homosexuals for punishment, violating the 14th Amendment’s insistence on "equal protection of the laws."

"Our constitutional system does not accept different rules for different groups of people, simply based on the majority saying to the minority, ‘We don’t like you. We judge you to be morally inferior,’" Harlow said. "Barging into a gay couple’s bedroom is just as offensive as barging into a straight couple’s bedroom. None of us should be at risk of that."

And even if sodomy laws targeting homosexuals are nearly impossible to enforce, just allowing them to remain on the books sends a message that government condones treating gay people as criminals, Harlow said.

Katine, as well as other Houston lawyers who wrote a supporting "friend-of-the-court" brief for a group of gay rights activists, said the law has been cited in Texas by people trying to deny homosexuals jobs or housing, the right to meet in public libraries and schools, to adopt children, serve as foster parents, or gain custody of their own children. It also has been used by the opponents of gay and lesbian candidates running for public office, who sometimes try to paint homosexual candidates as lawbreakers.

Delmore said the district attorney’s office has focused not on whether Texas’ Homosexual Conduct Law should exist but whether it is unconstitutional.

"The answer (according to the Supreme Court’s previous decision) is no, so we’re stuck with it," he said. "The Legislature has decided it. We may not necessarily agree with it. We may not be enthusiastic about enforcing it or prosecuting it, but the district attorney doesn’t get to pick and choose which laws to defend."

In his brief to the Supreme Court, Delmore argued that state lawmakers, not judges, have the power to decide what behaviors should be outlawed in their own states. The court agreed with that assessment in 1986, he said, and nothing has changed since then to warrant reversing course.

"The Texas electorate evidently continues to believe that any sexual conduct between persons of the same sex is more ‘immoral and unacceptable’ than similar conduct occurring between persons of the opposite sex, and that belief is consistent with the traditional and historical view that homosexual activity is malum in se (inherently wicked or evil by its very nature)," Delmore wrote.

"Perhaps homosexual conduct is not now universally regarded with the same abhorrence it inspired at the time of the adoption of our federal Constitution," he added, "but any lag in legislative response to a mere change of public opinion" is no basis for finding that the Legislature didn’t have the authority to pass the law in the first place.

Gary Kreep, a lawyer with the California-based United States Justice Foundation, which filed a brief supporting the law on behalf of the anti-gay Pro Family Law Center, said he sees the case as an important states’ rights issue.

"The state can repeal the law anytime it dang well pleases," he said, noting that several attempts to get rid of the law failed in the Texas Legislature. "The issue is, the state can have the law it wants, and obviously Texans have decided they want this law."

Kreep said state legislatures can justify passing sodomy laws to protect their citizens from public health problems, including AIDS and other diseases that can be sexually transmitted.

"The states have a valid reason for outlawing this type of behavior," he said. "There’s clinic evidence that there is a higher instance of sexually transmitted diseases and AIDS in homosexual relationships than in the population at large.

"If you start saying you can’t have a law to try to protect people from certain types of activities, where does it stop?" he said. "Should anti-smoking laws be thrown out, too? What about laws that ban child pornography or wife beating?"

But Katine and Harlow argue that states’ rights are rightly limited by the U.S. Constitution, and that blaming gays for a public health problem doesn’t hold up scientifically and amounts to discrimination in and of itself.

And Harlow said allowing Texas’ law to remain on the books puts all people, including heterosexuals, at risk of more invasions of privacy.

"It’s very well accepted, both by the court and just by common sense, that the home is your castle," she said. " ... All we’re saying is, that notion applies to gay men and lesbian women the same as it applies to heterosexuals."

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