Last edited: December 06, 2004

Texas Court Rules Against State’s Ban on Gay Sex

Reuters, June 8, 2000

By Andrew Kelly

HOUSTON — A Texas appeals court on Thursday declared the state’s ban on homosexual conduct a violation of the Texas constitution and overturned the conviction of two Houston men arrested in their own bedroom in September 1998.

John Lawrence and Tyrone Garner, who spent a night in jail after their arrest, were each fined $200 under the Texas sodomy law which prohibits oral and anal sex between same-sex partners.

But the 14th Court of Appeals quashed their convictions, ruling that the law discriminated against homosexuals because heterosexual couples were free to engage in the same activities.

The Harris County District Attorney’s office said it would probably ask for a review of the case by the Texas Court of Criminal Appeals, the state’s highest court in criminal matters.

In a 2-to-1 majority opinion, the 14th Court of Appeals said the sodomy law was at odds with the 1972 equal rights amendment to the Texas constitution, which guarantees equality under the law, regardless of sex, race, color, creed or national origin.

"The simple fact is, the same behavior is criminal for some but not for others, based solely on the sex of the individuals who engage in the behavior," Justice John Anderson wrote.

"In other words, the sex of the individual is the sole determinant of the criminality of the conduct."

Justice Harvey Hudson issued a dissenting opinion in which he said he did not believe the equal rights amendment was intended to decriminalize homosexual conduct.

The state has the responsibility to preserve public morals and homosexual conduct "represents a gross deviation from historic perceptions of morality," Hudson said.

Sodomy laws, outlawing anal and oral sex, were once in force across all 50 U.S. states but have been repealed or struck down by courts in a growing number of states starting in the 1960s.

Today 12 states have sodomy laws that apply to both heterosexual and homosexual couples — Alabama, Arizona, Florida, Idaho, Louisiana, Michigan, Massachusetts, Minnesota, North Carolina, South Carolina, Utah and Virginia.

In addition to Texas three states have sodomy laws that apply only to homosexual couples — Arkansas, Kansas and Oklahoma.

Suzanne Goldberg, an attorney with Lambda Legal Defense, a homosexual rights organization which has supported Lawrence and Garner, described Thursday’s ruling as a "tremendous victory" in line with a national trend to abolish "archaic" sodomy laws.

"The decision means that Texas can no longer treat its lesbian and gay citizens like criminals because of their consensual sexual intimacy," Goldberg told Reuters.

Texas has had a sodomy law since 1860 but amended it in 1974 so that it applied only to same-sex partners. Prosecutions had been rare in recent years.

In a brief submitted to the 14th Court of Appeals last year, seeking to uphold the conviction against the two Houston men, state attorneys said the sodomy law was intended to discourage "immoral conduct" and promote "family values."

Harris County Assistant District Attorney Bill Delmore said the state would probably apply for a review of the case by the Texas Court of Criminal Appeals.

"We probably owe it to everybody to take that step, just so that we can get a definitive ruling and resolve the issue once and for all," he told Reuters.

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