Last edited: February 14, 2005

Texas Men Post Bonds, Challenge State's Sodomy Law

New York Times News Service, November 20, 1998

By Steve Brewer, Houston Chronicle

HOUSTON -- Two men arrested for having sex in a private home will contest fines they received Friday, setting the stage for the first challenge to Texas' 119-year-old sodomy law in a criminal court. John Geddes Lawrence, 55, and Tyrone Garner, 31, pleaded no contest and were fined $125 each by Harris County Justice of the Peace Mike Parrot during a brief hearing. They refused to pay the fine and instead posted $332 appeal bonds.

The case will now go to a county criminal court-at-law.

"We believe the law is an outrageous intrusion into the private liberties of lesbian and gay Texans, and it's unconstitutional for this law to single out gays and criminalize their behavior,'' said Suzanne B. Goldberg, an attorney with the Lambda Legal Defense and Education Fund, Inc.

Goldberg's group, a national gay advocacy group, is working with local attorney Mitchell Katine on the pair's defense. They will file a motion in county court to quash the charges on constitutional grounds.

Depending on what happens there, the case could move to local appeals courts and eventually end up being heard by the Texas Court of Criminal Appeals.

"Certainly, this case could raise an issue that goes past the Texas Court of Criminal Appeals and to the U.S. Supreme Court, but that's a long way down the road and it's impossible to predict if that will happen at this point,'' Goldberg said.

On Sept. 17, two sheriff's deputies entered a private residence and allegedly found the men engaged in consensual sex. The two were then jailed for "deviant homosexual'' conduct -- a Class C misdemeanor punishable by a fine of up to $500.

Lawrence and Garner were jailed overnight and later released on bail.

The officers entered the apartment after a third man falsely reported an intruder on the premises with a gun. That man was later convicted of making a false report.

Lawrence and Garner couldn't reached for comment by the Chronicle after their court appearance. But Garner told The Associated Press that he felt his civil rights were violated, and Lawrence described the police raid as "sort of Gestapo.''

Gay activists have tried to have the 19th-century law, which was a felony until 1974, struck from the books for years. They see this case as a chance to mount a legal challenge to it.

Goldberg said that isn't the motive behind mounting such an aggressive defense in this case, but she would like to see that as the result.

"This 'homosexual conduct' law treats lesbians and gay men as second- class citizens,'' Goldberg said. "It stigmatizes them as law breakers and is used to discriminate against gays and lesbians in employment and housing.''

The Texas Supreme Court ruled in 1994 that it did not have the proper jurisdiction over a civil challenge to the state's sodomy law because the plaintiffs in that action had never been prosecuted under it. So there's never been a challenge to it in criminal court.

Harris County District Attorney John B. Holmes Jr., who supports enforcement of public lewdness laws, said any complaints about this statute should be made to lawmakers because they can change it, while his office is only doing its job.

The law is rarely enforced. Only a handful of such sodomy cases have been prosecuted in Harris County in the last three decades, prosecutors have said, and those have mostly been linked to homosexual conduct in public jails.

Similar cases have traditionally been linked to public performance of sex acts.

Holmes speculated that advocates for changing the law might have a hard time making their case to lawmakers.

"But I'm not so sure that they don't have a point, the critics of this law, but it's a point that ought to be addressed to the folks who make the law and not the people who enforce it,'' Holmes said.

And if there is a serious challenge to the law, Harris County Republican Party Chairman Gary Polland said gay rights groups might have a fight on their hands.

Polland, whose party's plank is supportive of sodomy laws already in place, said the law is not unconstitutional and should not be repealed.

"We think it would definitely send a wrong message and signal a continuing deterioration of morals in our society,'' Polland said Friday.

Polland said privacy is not a factor in the this case because the behavior became public when the police entered the residence.

"That's why I wonder if this case was a set-up, if it was set up as a challenge,'' Polland said. "The facts themselves sound suspicious.''

Nineteen states have sodomy laws barring consensual anal or oral sex, but Texas is one of only five states that have laws that specifically target same- sex partners, according to Lambda. The other states with similar laws are Arkansas, Kansas, Missouri and Oklahoma.

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