Last edited: February 14, 2005

Attorneys In Sodomy Case Awaiting State’s Strategy

First document to lay out state’s defense of ‘homosexual conduct’ statute is due at state appeals court by July 7

Dallas Voice, June 18, 1999
3000 Carlisle, Suite 200 Dallas, Texas 75204

By Dennis Vercher

Attorneys for two Harris County men challenging the Texas sodomy law say the state’s defense of the statute will become apparent only when county attorneys file papers with a Texas appeals court.

The state’s brief must be filed by July 7, said Suzanne Goldberg, an attorney for Lambda Legal Defense and Education Fund. The New York-based litigating foundation has assumed the lead role in presenting constitutional arguments against the sodomy law.

"The state hasn’t offered any defense for the law yet, so we don’t know what they will argue," Goldberg said. The Lambda staff attorney spoke with a reporter during a visit to Dallas last week, where she addressed a gay attorneys group and conducted a continuing education class for lawyers.

Goldberg’s brief, previously filed with the appeals court, contends that the law violates gays’ and lesbians’ rights to privacy and equal protection.

The statute, Sec. 21.06 of the Texas Penal Code, outlaws oral and anal sex between members of the same gender. Those convicted of the Class C misdemeanor are subject to a fine of up to $500.

The plaintiffs, Tyrone Garner, 31, and John Geddes Lawrence, 55, were arrested last September after a disgruntled friend summoned authorities to Lawrence’s northeast Harris County apartment. The friend told sheriff’s deputies that an armed man was inside. But when deputies entered, they discovered Garner and Lawrence engaged in anal sex.

The men were charged with violating the sodomy statute. They pleaded no contest before a Harris County justice of the peace on Nov. 20 and were assessed fines of $125 each. The men appealed the case to a county court. There, they also pleaded no contest and appealed, moving the case to the Court of Appeals for the 14th Judicial District.

At the appeals court

Goldberg declined to speculate when the appeals court would schedule oral arguments. But she said the case should move more swiftly than a previous challenge to the law.

That case, Morales v. Texas, was filed in 1990 and ended in 1994 when the Texas Supreme Court, after hearing oral arguments, ruled that it had no jurisdiction over the constitutionality of a criminal statute.

In Texas, the state Supreme Court ordinarily hears appeals of civil matters. The Court of Criminal Appeals, an independent body, is the state’s highest court of appeals in criminal matters.

The Court of Criminal Appeals would not take the Morales case because none of the five plaintiffs in the 1990 case had been charged with violating the law.

That’s why gay activists are enthusiastic about the current appeal, which does involve plaintiffs convicted of violating the statute. Jurisdictional arguments and the right of the plaintiffs to press the appeal should not be an issue in this case, attorneys said.

But the case may not end in the Texas courts. In her brief, Goldberg also contends that the sodomy law violates both the Texas Constitution and the U.S. Constitution. If the plaintiffs receive an adverse ruling from Texas appeals courts, they retain the option of filing an appeal with the U.S. Supreme Court.

In Bowers v. Hardwick, a 1986 decision appealed from Georgia, justices upheld the Georgia sodomy law. The ruling is the U.S. Supreme Court’s standing precedent affirming the right of states to pass laws regulating private, consensual sexual behavior involving same-gender participants.

Now, more than a decade later, Goldberg believes the high court might be willing to revise its views - particularly given its 1997 decision striking down a Colorado measure forbidding the passage of gay rights laws.

That decision, in Romer v. Evans, "lays the groundwork for decisions in other cases, that gay people deserve to be treated equally," Goldberg said. "There is nothing in the Supreme Court’s jurisprudence that suggests we wouldn’t win this case if we have to take it that far."

Goldberg said she hopes the case will be resolved favorably in the Texas courts.

Still, she added, Lambda is likely to pursue an appeal to the U.S. Supreme Court if necessary.

"I can’t say for definite at this point, but we would probably take the case as far as it needs to go to get a positive outcome," she said.

Other cases

Last month, Goldberg participated in oral arguments before the Arkansas Supreme Court by nine plaintiffs seeking to strike down the state sodomy law there. As in Texas, the Arkansas law applies only to acts of sodomy between persons of the same gender.

But the Arkansas appeal was different, she said, because arguments were limited to whether the plaintiffs had the right to file suit in the first place. None of the nine had been accused of violating the law. Instead, they argued that the existence of the law fostered discrimination and hate crimes.

"You can’t predict the outcome of a case after oral arguments, but I felt that we got a fair hearing," Goldberg said.

The state has asked the Arkansas justices to dismiss the case.

In response, Goldberg said, "We argued that the plaintiffs live under the constant threat of prosecution. . . . In addition, we argued that by subjecting gay people to an unequal rule, our clients are harmed. It stigmatizes gay people as criminals, and that’s an injury."

Lambda is also providing technical assistance to sodomy law challenges advancing in state courts in Louisiana and Virginia, Goldberg said.

"Challenging sodomy laws is one of our top priorities," she said. "We’re honored to be joining our Texas cooperating attorney [Mitchell Katine of Houston] to do that here."

Other services

Besides arguing "test" cases in state and federal courts, Lambda also provides a range of assistance to gay and lesbian people needing legal help, Goldberg explained.

"Every case is not a test case, but even when we don’t get involved directly representing a client, we have a lot of resources to offer," she said. "We sometimes write briefs or offer strategic assistance. We also can connect people to organizations and lawyers who can assist them."

The organization also provides legal assistance to attorneys representing clients with HIV-related claims, Goldberg said.

The staff attorney said she personally is involved in many cases seeking asylum for gays and lesbians facing persecution in other countries.

Lambda is interested in providing greater support throughout Texas, she added.

On a personal note, Goldberg is pregnant with her second child, which she and partner Paula Ettlebrick expect in September. The couple have a 2-year-old son for whom Goldberg is also the birth mother.

Despite her impending maternity leave, Goldberg expects to be back at work to participate in oral arguments on the sodomy law challenge at the Texas appeals court, she said.

Persons seeking Lambda’s assistance may contact the organization at 212-809-8585, or visit the organization’s website at

[Home] [News] [Texas]