Last edited: January 04, 2005

Time for Texas to Let Go of Archaic Anti-Sodomy Law

Houston Chronicle, March 20, 2001
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An appellate court has reactivated Texas’ sodomy law by reversing a ruling by a smaller panel of the same court that managed to understand that it is a violation of the Constitution’s equal protection clause when laws apply differently to different groups of people.

The 14th Court of Appeals, whose members all are Republicans, took up the case under pressure from some Republican Party activists. A three-judge panel of the same court had ruled in June that the sodomy law violated the Texas Constitution’s Equal Rights Amendment.

The case stems from the arrest in 1998 of two Houston men for having sex. In reviewing the earlier decision, the full court ruled 7-2 that the Texas law barring certain sex acts between homosexuals does not violate equal rights provisions, even though the law does not apply to heterosexuals. This decision is legally binding on the 14-county area, including Harris, over which the 14th Court of Appeals has jurisdiction.

In a stunning display of weak argument, Justice J. Harvey Hudson said the court’s decision came of its unwillingness to "[usurp] the role of the Legislature." Hudson should remember that his job as a judge is to exert himself when the Legislature writes laws contrary to the Constitution.

The fact that he wrote in the opinion that homosexual sex is "widely perceived to be destructive and immoral" is evidence of the judge’s personal view, as such intimate encounters also are widely perceived in our society to be no one else’s business.

Lawyers for the two men plan to appeal the case to the Texas Court of Criminal Appeals, which may decide not to hear it. The next step would be the U.S. Supreme Court, which also may decide not to take it up.

State lawmakers could make this costly court battle unnecessary by passing legislation by State Rep. Debra Danburg, D-Houston, to overturn Texas’ archaic sodomy law, a continuing embarrassment to this great state.

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