Last edited: December 08, 2004

Texas Sex Bust Sparks Challenge

PlanetOut, November 7, 1998

The outrageous arrest of 2 gay men for having sex at home is just what the legal strategist ordered to remedy the Texas sodomy law.

The 119-year-old law that makes homosexual oral and anal sex a misdemeanor worthy of a maximum $500 fine in Texas will be put to the test by two men who were arrested in the apartment of one of them. Houston police officers were responding to what turned out to be a false report of an armed robbery September 17, when they came upon Tyrone Garner and John Geddes Lawrence engaged in sex. The pair were taken to jail and later released on $200 bail. Now Garner and Lawrence plan to challenge the law with exactly the kind of case state gay and lesbian activists have been waiting for.

Prosecutions for private consensual sex acts are so rare that the laws are difficult to challenge, although their impact is frequently felt when they are cited in regards to other issues, such as discrimination, employment and adoption. Texas activists tried to raise a civil challenge to the sodomy law in 1994, but the state Supreme Court ruled that it did not have jurisdiction in the case because the plaintiffs had not been prosecuted under the sodomy law. In fact, only two or three sodomy cases have been prosecuted over the last 30 years in the state, and all those involved sex acts that took place in public jails in view of witnesses. Ironicaly, the infrequent enforcement of sodomy laws has also been used to justify leaving them on the books. Attorney for Garner and Lawrence Mitchell Katine, can now say, "For all those people who have said over the years that this statute is never enforced need to realize that that's not true."

So Texas activists, while outraged about the circumstances of the case, are enthusiastic about its potential. "We certainly hope to move this forward, and we'd love to see it move all the way up the ladder and be declared unconstitutional," said Houston Gay and Lesbian Political Caucus president Clarence Bagby. "We need to get this [sodomy law] off the books." Harris County District Attorney John B. Holmes Jr. agrees with the strategy. Although he intends to prosecute Garner and Lawrence under the presumption that the law is constitutional, he said, "But I've always said that the best way to get rid of a bad law is to enforce it."

That wasn't the way it worked out in the infamous Georgia case of "Bowers v. Hardwick," in which the U.S. Supreme Court in 1986 upheld that state's sodomy law, however. "Bowers" began much like the current Texas case, when police discovered Michael Hardwick engaged in sex with another man in his own bedroom, after the officers had entered the house in connection with an unrelated investigation of Hardwick's roommate. In the end, former Georgia state Attorney General Michael Bowers successfully defended the right of states to regulate private sexual conduct.

Garner and Lawrence are set to be arraigned before Justice of the Peace Mike Parrott on November 20. Their case must go through the county court and into the criminal court system before the constitutional issues can be argued.

The call that led to the arrest of the two Houston gay men came from Roger David Nance. Harris County Sheriff's Department officers responded to his report of an armed man in an apartment complex, and he directed them to the apartment where Garner and Lawrence were found. Nance pleaded no contest and served 15 days in jail for filing a false police report. David Jones, an attorney for the two men, cited Nance's motive as a "personality conflict between the caller and the people in the apartment."

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