Last edited: February 14, 2005

Legal Assaults Against States’ Anti-Sodomy Laws Multiply

Los Angeles Times, December 3, 1998
Times Mirror Square, Los Angeles, CA 90053
Fax: 213-237-7679 or 213-237-5319

By Claudia Kolker, Times Staff Writer

HOUSTON — When Roger Nance got mad at two male acquaintances, he also got mean, calling the Harris County sheriff with the false report of a crazed gunman in one of the ex-friends’ apartment.

As Nance likely guessed, the only thing deputies found were 55-year-old John Lawrence and 31-year-old Tyrone Garner, having sex. What Nance probably never imagined, though, was that the two actually would get arrested. Within days, what began as a personal spat became a statewide civil liberties case with national reverberations.

Charged with "homosexual conduct," a misdemeanor under a rarely used Texas law, Lawrence, a medical technician, and Garner, a shipyard worker, spent several hours in jail in September before posting $200 bond. Soon after, joining with civil liberties lawyers and national gay-rights activists, the pair launched a legal challenge of Texas’ 119-year-old anti-sodomy law. Pleading no contest last month, they were fined $125 and promptly appealed to county criminal court. (Nance, for his part, confessed to falsely reporting a crime and spent 15 days in jail.)

Lawrence and Garner’s case joins a growing wave of challenges to state anti-sodomy laws. Just last week, the Georgia Supreme Court struck down that state’s anti-sodomy statute on the grounds that it infringes upon the state’s constitutional protection of privacy.

The decision countered a landmark 1986 U.S. Supreme Court decision (Bowers vs. Hardwick) upholding Georgia anti-sodomy laws. Partly in response, gay rights activists focused on bringing cases on the state level, since state constitutions tend to have stronger privacy clauses.

The statutes under attack date back to Henry VIII, who in 1533 outlawed all anal sex if it involved at least one man. Only in the late 19th century did U.S. sodomy law include oral sex.

Thirteen states ban consensual oral and anal sex, regardless of sexual orientation; Arkansas, Kansas, Oklahoma, Missouri and Texas ban homosexual sodomy only. California repealed its ban in 1975.

The recent decision in Georgia delighted activists at the Lambda Legal Defense and Education Fund, lead counsel for Garner and Lawrence.

But the Rev. Lou Sheldon, chairman of Anaheim’s Traditional Values Coalition, criticized the ruling.

While the Georgia decision won’t influence other states directly, it does reflect a national trend, said David Cole, a constitutional law professor at the Georgetown University Law Center.

‘The Georgia Supreme Court is by no means a liberal body," he says. "The fact that they decided this case virtually unanimously, by a 6-1 vote, reflects a broader movement . . . that recognizes the protections for privacy override efforts by the community to dictate how consensual adults treat each other in private."

Meanwhile, activists are leading similar challenges in Louisiana, where sodomy is a felony, Arkansas and Maryland. These suits argue that anti-sodomy statutes brand gays as lawbreakers and expose them to discrimination in housing, work and custody rulings.

The Texas test case is distinctive, though, in that its subjects were arrested for consensual sex inside a private home. In fact, the incident likely wouldn’t have led to an arrest had it occurred in the city of Houston rather than its northeastern outskirts.

Even when arrests are made, prosecution is rare, says Houston lawyer David Jones, an attorney for Garner and Lawrence. Harris County Dist. Atty. John Holmes facilitated the challenge, however, by declaring that he was obliged to prosecute because there was adequate evidence. Nevertheless, defendants willing to appeal rather than sink into anonymity represent a rare breed, lawyers say.

Protected by legal and public relations representatives, Lawrence and Garner have spoken publicly only once, at their arraignment.

"I hope that the law changes," Garner said. "I feel like my civil rights were violated and I wasn’t doing anything wrong."

Last week, Garner ran afoul of the law again, arrested on suspicion of assaulting Nance, the informant, at a hotel. The charges were dropped the next day.

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