Last edited: February 14, 2005

Georgia Court's Ruling Bolsters Sodomy Case

Challenge to state law aided, expert says

Dallas Morning News, November 24, 1998
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Associated Press

HOUSTON -- The Georgia Supreme Court's decision to throw out that state's anti-sodomy law could bolster a challenge to the Texas statute that is beginning to wind through the court system, a constitutional-law expert said Monday.

"There's no reason why Texas can't rely on Georgia for its reasoning," said Neil McCabe, a constitutional law professor at South Texas College of Law. "State courts are big on that -- they look around and see what other states have done.

"And you're not talking about some liberal state with a Supreme Court that's gay- and lesbian-friendly. You're talking about a state in the heart of the conservative South."

Voting 6-1, the Georgia court found its state's sodomy law "manifestly infringes upon a constitutional provision . . . which guarantees to the citizens of Georgia the right of privacy."

The ruling came in the case of a man who was convicted of sodomizing his 17-year-old niece in 1996.

The decision was issued three days after two Houston men caught having sex in a private home pleaded no contest to sodomy charges and then appealed the case, initiating a legal challenge to the 119-year-old Texas law that bars homosexual intercourse.

John Geddes Lawrence, 55, and Tyrone Garner, 31, were arrested on charges of engaging in homosexual conduct, a misdemeanor, on Sept. 17 when deputies found the two in Mr. Lawrence's apartment engaged in consensual sex. The deputies were responding to a false report of an armed intruder.

Mr. McCabe said the Georgia decision would strengthen arguments that the Texas law should be tossed out.

He noted that the Georgia court, in its opinion, cited a 1992 Texas appeals court decision finding the sodomy law unconstitutional. That ruling eventually was overturned by the Texas Supreme Court, which said the lower court did not have proper jurisdiction.

"The Georgia case expressly relies on the earlier Texas case," he said. "If they can rely on Texas, I don't see why Texas can't rely on them."

Mitchell Katine, a lawyer for the Houston men, said their appeal primarily would attack the fact that the Texas law makes sodomy illegal only for same-sex couples, not heterosexuals. But the privacy issue also will come into play, and the Georgia decision "strengthens the privacy arguments in our case," he said.

Suzanne Goldberg, another defense attorney in the Texas case, agreed.

"The Georgia decision helps illustrate how laws like Texas' homosexual- conduct law infringe upon the privacy rights of lesbians and gay men," she said. "I think it should provide additional reinforcement for a proper decision striking down the law in this case."

But Harris County Assistant District Attorney Brett Ligon, who is prosecuting the Texas case, said it was too soon to determine what effect -- if any -- the Georgia case would have.

"It's not binding on state law, and it's not binding on the Texas Court of Criminal Appeals," Mr. Ligon said of the Georgia ruling. "It doesn't mean anything."

Texas' sodomy law makes homosexual oral and anal sex a Class C misdemeanor, punishable by a fine of up to $500. Because police rarely catch someone performing a homosexual act, officials say, few cases are prosecuted.

Gay activists have long argued that the law is used to justify discrimination. But with no defendant in a criminal case, efforts to remove the law have met with mixed success.

The Houston case, which originated in a justice of the peace court, has been appealed to a county criminal court. It could eventually reach the Texas Court of Criminal Appeals and, possibly, the U.S. Supreme Court.

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