Last edited: December 18, 2004

The Not-So-Hidden Message in State’s Sodomy Law

Austin American-Statesman, July 17, 2002
Box 670, Austin, TX 78767
Fax: 512-912-5927

By Ann Rostow, Special to the American-Statesman

With any luck—hell, even without any luck—the Texas sodomy law is on its way to history’s unmarked scrap heap of discarded statutes. On Tuesday, Lambda Legal Defense and Education Fund, the gay community’s civil rights lawyers, petitioned the U.S. Supreme Court to hear the appeal of Lawrence and Garner v. Texas. Not only will the court accept the case, but it will kick the pants off Texas in the process. Just watch.

A Hollywood script writer could not have come up with a starker scenario than the case at hand. Two Houston men, alone in their bedroom, suddenly find the police barging through their house looking for a burglar. The police didn’t find any burglars, but they arrested John Lawrence and Tyron Garner and tossed the men in jail for 24 hours. The men were arrested under a law that outlaws sexual intimacy between same-sex life partners.

Texas is one of four states that criminalizes just gay sex, while another nine [sic: ten] states have sodomy laws that apply to everyone. These nine are bad enough, as witnessed by the many state supreme courts that have drawn the conclusion that private, consensual, adult, noncommercial sex is none of the government’s business. But the foursome of Texas, Oklahoma, Missouri and Kansas goes further, recognizing the privacy rights of heterosexuals, but excluding gay couples from those protections. Up until this month, Arkansas had the same perverse policy, but the state supreme court struck the Arkansas sodomy statute on both privacy and equal protection grounds July 5.

The case presents some of the worst facts, under one of the worst laws, but there’s more. One of the reasons that the High Court is likely to accept review lies in the behavior of the Texas courts. Instead of ruling on the constitutionality of the law, the two courts of final appeal in Texas have closed their eyes, put their hands over their heads, and ducked. There is no actual opinion in Lawrence and Garner v. Texas to appeal. Instead, Lambda is appealing a non-decision.

Last April, after doing nothing for a year, the Texas Court of Criminal Appeals declined, without explanation, to hear the case. A few years earlier, in a different sodomy case, the Texas Supreme Court ruled that it lacked jurisdiction in the matter. Sodomy, said the justices, is really something for the Court of Criminal Appeals to handle.

By abandoning its responsibility to clarify important constitutional issues on behalf of Texans, the Lone Star justice system has left the state’s gay community in limbo. It takes four justices to agree to hear a case, and those four are easy to identify: John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer. It takes five or more to win a case, so add Sandra Day O’Connor and Anthony Kennedy. This group, not coincidentally, comprises the 6-3 majority in Romer v. Evans, the 1996 opinion that articulated a simple idea: The state may not discriminate against gays and lesbians (or any other identifiable group) based on hostility alone.

Regardless of how Texas pretties up its rationale, there is no way to disguise the underlying basis of the state sodomy law. We don’t really like gay couples here in Texas.

The court rejected that excuse six years ago, and they’ll reject it again.

  • Rostow is managing editor of The Texas Triangle.

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