Last edited: February 14, 2005

Texas Sodomy Arrest Opens Legal Battle for Gay Activists

Washington Post, November 29, 1998
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By Paul Duggan, Washington Post Staff Writer

HOUSTON — Rarely does a police officer witness violations of Section 21.06 of the Texas criminal code, the section entitled "Homosexual conduct." And almost never is an arrest made under the 119-year-old statute. So what happened recently to John Lawrence and Tyrone Garner, in the supposed privacy of Lawrence's bedroom, was highly unusual.

The two men were having sex when a Harris County sheriff's deputy walked into the apartment on another matter, saw what they were doing and hauled them off to jail.

"In all candor, I don't believe we've ever made an arrest before under those circumstances," said Capt. Don McWilliams, a sheriff's spokesman. But the law is the law, he said. "We can't give our deputies a list of statutes we think they should enforce and a list of statutes we want them to ignore."

The handcuffing of Lawrence and Garner that night did more than just satisfy the deputy's obligation to enforce the law. It opened a new legal front in a long campaign by gay activists across the country to do away with such statutes, which they contend are unconstitutional.

Georgia's highest court issued a ruling Monday that struck down that state's law against consensual sodomy, but statutes prohibiting the practice remain on the books in Puerto Rico and 19 states, including Maryland and Virginia. Five of the states, including Texas, limit the ban to same-sex couples. Now lawyers have seized on the Houston case as a vehicle to again contest the legitimacy of the Texas statute, which has survived three legal challenges since the early 1980s.

Among similar court challenges in four other states and in Puerto Rico, four are lawsuits, including one in Maryland -- where a judge ruled last month that homosexual oral sex is not illegal but refused to declare the sodomy statute unconstitutional. Only two cases, in Minnesota and now Texas, stem from criminal charges. And as gay activists see it, no case more vividly illustrates the threat such laws pose to privacy than the Sept. 17 arrests of Lawrence and Garner.

Answering what turned out to be a bogus report of a man behaving erratically with a gun, Deputy Joseph Quinn arrived at an apartment building east of Houston about 10:30 p.m. and met Roger Nance, 41, who had phoned in the complaint, authorities said.

Nance directed Quinn to apartment No. 833, Lawrence's apartment. The deputy entered through the unlocked door with his weapon drawn. After finding no one with a gun, Quinn later wrote in his report, he "observed [Lawrence] engaged in deviate sexual conduct, namely, anal sex, with another man." Lawrence, 55, and Garner, 31, spent the rest of the night behind bars before each was let out on $200 bail.

Nance's false report, for which he served 15 days in jail, stemmed from "a personality dispute" between him and the two men, the sheriff's department said.

Lawrence and Garner pleaded no contest earlier this month to violating the anti-sodomy statute and were fined $125 each by a justice of the peace. Now the stage is set for what lawyers predict will be a long appeals process, one they hope will end with the state's highest criminal appeals court invalidating the law as an infringement on privacy as protected by Texas Constitution.

The arrests in some ways delighted gay activists. They said the case not only provides a long-awaited legal platform to challenge the Texas law, but also has a public-awareness benefit, offering facts that underscore their warnings about privacy. Here, they contend, was an instance of government authority literally reaching under a person's blankets.

"You can't get more private than a bedroom," said Suzanne B. Goldberg, a lawyer with the Lambda Legal Defense and Education Fund, which is representing the men.

In the other criminal case resulting in a legal challenge, a Minnesota bartender was arrested for engaging in oral sex with a woman in the bar after closing time. Minnesota's law, which applies to all couples, includes oral sex in the definition of sodomy, as does the Texas law. But in Minnesota, police witnessed the offense after the fact, while viewing a videotape from the bar's security camera during an unrelated investigation.

The Texas case "should really show the public how invasive these laws can be," said Michael Adams, a lawyer with the American Civil Liberties Union's National Gay and Lesbian Task Force, which is handling the Minnesota appeal. "It shows that the police really do intrude into the home. And the fact that people have to live in fear of that is terrible."

Goldberg said Lawrence, who works in medical technology, and Garner, a shipping clerk, did not want to be interviewed. McWilliams said Quinn also has declined to comment on the arrests.

As they have in other states, conservative groups voiced support for the Texas law on moral grounds.

Cathie Adams, president of the Eagle Forum's Texas chapter, said the law banning same-sex sodomy helps maintain a distinction between traditional couples and those "who practice homosexuality," which she called "unnatural and unhealthy."

In addition to citing privacy concerns, activists have complained that such laws often are used as a pretext for discriminating against homosexuals in employment, child custody and other matters.

In one earlier, unsuccessful challenge to the Texas law, for example, an openly lesbian job applicant sued the Dallas Police Department for refusing to hire her. The department said it could not employ her because it presumed she was routinely violating the law in private, by the nature of her homosexuality. The city now has an ordinance barring job discrimination based on sexual orientation.

Wyatt Roberts, chairman of the American Family Association of Texas, said he favors retaining the Texas statute so it can be used as it was in Dallas.

Homosexuality "speaks for a person's character," Roberts said, and ought to be a legal basis for denying homosexuals child custody and certain jobs. "I think most people in Texas respect a person's right to privacy," he said, "while at the same time they think homosexuality should be discouraged."

In an earlier challenge to the now-defunct Georgia law, which banned sodomy by all couples, the U.S. Supreme Court upheld the statute in 1986 in a case that focused on the privacy issue. The court said the U.S. Constitution "does not confer a fundamental right upon homosexuals to engage in sodomy."

But the ruling noted that state courts may strike down such laws if they are found to violate privacy protections that are guaranteed or implicit in state constitutions.

That was the basis for the Georgia Supreme Court's ruling this week, one that gay activists hope will be repeated in the other state courts. In addition to the cases in Texas, Minnesota, Maryland and Puerto Rico, challenges are pending in state courts in Arkansas and Louisiana.

Citing the U.S. Constitution's equal-protection clause, activists said they also may eventually begin federal court challenges to the Texas, Arkansas, Oklahoma, Kansas and Missouri anti-sodomy laws, which apply to same- sex couples but not heterosexuals.

In a federal lawsuit challenging the Texas law on privacy grounds in the early 1980s, a gay man prevailed in U.S. District Court in Dallas. But a federal appeals court reversed the ruling and upheld the statute in 1985, and a year later the U.S. Supreme Court decided the Georgia case.

Two state court challenges to the law, including the case involving the Dallas police force, were dismissed in 1994 by the Texas Supreme Court, which ruled that the legitimacy of a criminal statute in Texas cannot be contested through a lawsuit, that the challenge must arise from a criminal case.

Activists have waited four years for such a case. Now they have it.

Sodomy Laws

Five states prohibit consensual sodomy among same-sex couples only; 14 states plus Puerto Rico prohibit consensual sodomy among all couples.

States with laws prohibiting consentual sodomy among all couples: Virginia, Maryland*, Idaho, Utah, Arizona, Minnesota*, Louisiana*, Mississippi, Alabama, Florida South Carolina, North Carolina, Massachusetts, Michigan, Puerto Rico*

States with laws prohibiting consensual sodomy among same-sex couples only: Oklahoma, Texas*, Kansas, Arkansas*, Missouri

* States facing legal challenge.

NOTES: In some jurisdictions, oral sex is included in the definition of sodomy. In the most recently decided case, the Georgia Supreme Court struck down Georgia's anti-sodomy statute on Nov. 23, ruling that it violated privacy rights guaranteed by the state constitution.

SOURCE: The Lambda Legal Defense and Education Fund, and the American Civil Liberties Union's National Gay and Lesbian Task Force of the American Civil Liberties Union

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