Last edited: January 01, 2005

Ruling on Sodomy Law Shows Texas Court is Blind to Sex

San Antonio Express News, March 30, 2001
Box 2171, San Antonio, TX 78297-2171
Fax: 210-351-7372

By M. Greenberg, San Antonio Express-News,

The Texas 14th Court of Appeals defended the finest traditions of our great state when it upheld the Texas sodomy law in a March 5 ruling.

The decision, on a 7-2 vote, has many positive implications that all Texans would applaud.

For example, the court recognized that the mere dry words of the Texas and U.S. constitutions should bow to the superior moral and legal authority of the Texas Legislature, which is universally recognized as the wisest and most honorable deliberative body in the history of the world.

Now, I know some observers over in Houston, where the court is based, claim that local Republican officials pressured the all-Republican court to affirm the sodomy law for political reasons.

In the words of columnist James J. Kilpatrick, "Tish-tush."

Um, on second thought, better make that just plain "tish." I want to stay on the right side of the law.

Anyway, in his concurring opinion, Justice Leslie Brock Yates alluded to the charges of political hanky-panky.

He understandably expressed dismay with the accusers for not "crediting the members of this court with the integrity to carry out their duties in strict accordance with the Texas Code of Judicial Conduct and with careful consideration of the legal issues."

Indeed, every line of the majority opinion, by Justice J. Harvey Hudson, gives evidence of sober, objective, scholarly examination of the entrails of a pig slaughtered by the seventh son of a seventh son at midnight under a full moon, in accordance with the highest standards of Texas jurisprudence.

By way of background, I should explain that the law in question makes certain intimate contact illegal between two men or two women, but legal between a man and a woman.

The court was hearing an appeal of the conviction of two Houston men who were entertaining each other in the privacy of an apartment when the police busted in and arrested them.

The men claimed that the Texas law violates the state and federal constitutions by discriminating on the basis of sex.

The dissenting opinion by Justice John Sharp Anderson agreed with them, but his opinion was so simple-minded that you sort of have to wonder how he got through law school.

For example, Anderson cited the equal protection clause of the 14th Amendment to the U.S. Constitution, which says that no state may "deny to any person within its jurisdiction the equal protection of the laws."

Anderson interpreted that to mean that Texas isn’t allowed to deny to any person within its jurisdiction the equal protection of the laws.

Sheesh. That’s the sort of thinking you’d expect from a Yankee.

Anderson gave an example to show how he thought the state law treated the sexes differently, in violation of the 14th Amendment and the Texas Equal Rights Amendment:

Suppose, he wrote, Bob and Alice lawfully enjoy each other’s company. Then Alice meets Cathy, and the two women do the same things that Bob and Alice had done a little earlier.

Now Alice is breaking the law, but the only difference is that she’s making contact with a woman instead of a man -- like, say, with one of the Texas Legislature’s male members (so to speak), as God intended.

But the court majority wisely understood that the law doesn’t discriminate on the basis of sex because it applies equally to men having sex with men and to women having sex with women.

It’s like that old law against interracial marriage. It was a crime for a white person to marry a black person, but also for a black person to marry a white person, so everyone was treated equally and everything was hunky-dory.

Gee, whatever happened to that law?

Well, I’m sure the 14th Court of Appeals will reinstate it just as soon the opportunity arises.

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