Last edited: February 14, 2005

Conduct Law Unfair To Gays, Attorney Says

Houston Chronicle, November 4, 1999
801 Texas Avenue, Houston, TX, 77002
Fax 713-220-6575

 By Steve Brewer, Staff

Texas’ homosexual-conduct law unfairly targets gay people and invades their privacy, an attorney for two men challenging the law argued Wednesday to appeals court judges.

But Harris County Assistant District Attorney Bill Delmore countered that lawmakers have the power to ban certain behaviors and the law does not single out homosexuals, only homosexual acts.

The arguments before the three-judge panel of the 14th Court of Appeals were the first big step in the challenge to the law started by John Geddes Lawrence, 56, and Tyrone Garner, 32.

In September 1998, police entered Lawrence’s home and found the men engaging in consensual sex. They were charged with "deviant homosexual conduct," a Class C misdemeanor.

The officers entered the home after a third man falsely reported an armed intruder was there.

The men pleaded no contest in a justice of the peace court and later in a Harris County Criminal Court-at-Law so they could challenge the law, which is the first such appeal to come out of a Texas criminal court.

Lawrence and Garner, who were in the courtroom Wednesday, have vowed to take the case to the Texas Court of Criminal Appeals and, if necessary, to the U.S. Supreme Court.

The appeals courtroom was packed with law students and other observers.

Paul Murphy, chief justice of the 14th Court of Appeals, was joined by judges John Anderson and J. Harvey Hudson on the panel.

Representing the men were their local lawyer, Mitchell Katine, and Ruth Harlow, an attorney with the Lambda Legal Defense and Education Fund Inc., a gay rights advocacy group.

Harlow argued that the law violates privacy rights and is unconstitutional, discriminatory and "criminalizes" homosexual behavior for which heterosexuals would not be jailed.

She stressed that because the law singles out homosexual acts, it singles out gays and therefore violates the equal-protection clauses in the U.S. Constitution and the Texas Constitution.

The law also violates the right to privacy in the home and in the decisions people make in their intimate relationships, Harlow said.

Lawrence and Garner don’t contend that the entrance police made into Lawrence’s home was illegal, but they say the officers should have left when they saw there was no armed intruder and that the sex the men were engaged in was consensual.

Harlow asked the panel to declare the law unconstitutional and vacate the convictions of her clients.

Delmore countered that the courts have held that federal and state equal-protection clauses do not apply to homosexuals because they do not have special, legally recognized status.

Delmore said homosexual acts are not protected by the federal or state constitutions and that since they have always been deemed inappropriate by Texas law, then enforcing the law does not violate privacy. If moral standards change, he said, the Legislature is the place to change the law, not the courts.

Besides, the law does not single out gays, Delmore said, because it also applies to bisexuals or heterosexuals who engage in homosexual acts.

Harlow scoffed at that, likening it to passing a law against Catholics going to Mass and then arguing that it didn’t target Catholics.

According to Lambda, only Texas, Kansas, Oklahoma and Arkansas specifically outlaw homosexual behavior. Twelve states ban certain sex acts between same and different-sex partners.

Harlow said courts have struck down "sodomy laws" in Tennessee, Georgia, Louisiana and Montana based on privacy concerns, and similar laws in Kentucky and Maryland were stricken based on equal-protection grounds.

The law is rarely enforced in Texas, where such a statute has been on the books in one form or another for about 120 years. In 1973, lawmakers essentially took heterosexual couples out of the equation and said it was OK for them to engage in certain sex acts that were illegal for homosexuals to practice.

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