Last edited: February 14, 2005

Texas Sodomy Law Struck Down

PlanetOut, June 8, 2000

Summary: A Texas court ruling has turned the nightmare of two gay men arrested at home into a dream test case against the ban on same-gender oral and anal sex.

Texas’ 14th Court of Appeals on June 8 in a 2 - 1 decision struck down the state’s "Homosexual Conduct" law as violating the Equal Rights Amendment of the state constitution. The state Attorney General’s office has not yet said if it will appeal the ruling. If the decision stands, it will leave only three U.S. states with laws criminalizing private non-commercial oral and anal sex between consenting adults applying exclusively to same-gender couples; another dozen states have similar laws applying equally to heterosexuals.

When first enacted in 1860, Texas’ law also applied to heterosexuals, but in 1974 they were excluded. That was the key to the majority decision written by Justice John Anderson, which said, "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." The majority understood this to be prohibited by the state constitution’s statement that, "Equality under the law shall not be denied or abridged because of sex" (and four other protected categories).

The court felt no need to consider additional arguments that the law violates state privacy guarantees or provisions of the federal constitution, but it did go on to chide lawmakers. Anderson wrote that "it does not follow that simply because the Texas Legislature has enacted as law what may be a moral choice of the majority, the courts are, therefore, bound to acquiesce. Our Constitution does not protect morality; it does, however, guarantee equality to all persons under the law." Some conservative lawmakers had indicated they would like to retain the statute as a statement of public policy.

What was a personal nightmare for two gay men turned out to be a perfect test of the law in a worst-case scenario of its application — and that was important, because earlier civil challenges to the law had been rejected on grounds that the plaintiffs could not prove they had been harmed by it. In fact the situation was so perfect that some conservative politicians charged it had been set up specifically to challenge the law, but that was not the case.

On September 17, 1998 Roger Nance falsely told police there was an armed intruder at the home of John Lawrence. (Nance later pleaded guilty to filing a false report and served 15 days in jail.) Police broke into Lawrence’s apartment and discovered him engaged in consensual sex with Tyrone Garner. They arrested both men, charging them with violating the Homosexual Conduct law. The men spent more than 24 hours in jail before they were each released on $200 bond.

By arrangement with prosecutors so they could pursue a constitutional challenge to the statute, the men pleaded no contest first before a Justice of the Peace and then in the Harris County Criminal Court-at-Law. In the criminal court on December 22, the judge rejected their constitutional challenge and sentenced each of them to fines of $200 (the maximum fine for the Class C misdemeanor being $500). The men immediately filed their appeal, which the 14th Court of Appeals heard in November 1999. Lawrence and Garner were assisted by the Lambda Legal Defense and Education Fund and by Mitchell Katine of the Houston law firm Williams, Birnberg & Anderson.

Lawrence said in a statement after the appellate ruling that, "At least this nightmare brought some benefit for all of us in Texas. I am thankful and relieved that this horrible experience may finally be over."

Lambda’s deputy legal director Ruth Harlow, who argued the case before the appeals court, added, "The court has rightfully put an end to a law that has made lesbians and gay men second-class citizens in Texas. Finally, they can rest assured that when they retreat to the privacy of their own bedroom, the government will not barge in and declare them criminals."

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