Last edited: February 14, 2005

Appeals Court Rejects State’s Sodomy Law

Austin American-Statesman, June 9, 2000
Box 670, Austin, TX 78767
Fax: 512-445-3679

HOUSTON – A Texas court of appeals declared the state’s anti-sodomy law unconstitutional Thursday, throwing out the criminal case against two Houston men arrested in 1998 for having sex with each other.

Although the ruling was an important victory for gay rights advocates, it was expected to be appealed and applies only within the jurisdiction of the 14th District Court of Appeals, which issued the ruling. The court is based in Houston and covers 14 Southeast Texas counties.

Texas has outlawed oral and anal intercourse since 1860. But such intercourse was decriminalized for opposite-sex partners in 1974.

The court ruled in a 2-1 decision that the law is unconstitutional because it treats same-sex couples differently than it treats heterosexual couples.

"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 S. Anderson wrote in the majority opinion.

Chief Justice Paul Murphy joined him in the decision.

"We hold that (the sodomy law) violates the Texas Equal Rights Amendment’s guarantee of equality under the law," he wrote.

Justice J. Harvey Hudson disagreed.

"Because I do not believe the people of this state intended to decriminalize homosexual conduct when they approved the Texas Equal Rights Amendment, I respectfully dissent," he wrote.

John Geddes Lawrence and Tyron Garner challenged the law after they were arrested Sept. 17, 1998. Their arrests came after Houston police, responding to a false report of burglary, entered Lawrence’s unlocked apartment and found the men having sex.

Both men were charged with homosexual conduct, which relates to oral and anal sex between same-sex partners. The crime is a misdemeanor punishable by a fine of up to $500.

Robert Royce Eubanks, who was Garner’s roommate, was convicted of filing the false report and was sentenced to 30 days in jail.

Lawrence and Garner pleaded no contest and then appealed.

"We consider this a tremendous victory for lesbians and gay men throughout Texas," said Suzanne Goldberg, a staff lawyer with the Lambda Legal Defense and Education Fund. The gay- and lesbian-rights advocacy group helped defend Lawrence and Garner.

Lawyers for the state could ask the full 14th Court to reconsider the case, and then they could go to the Texas Court of Criminal Appeals.

The issue could not go to the U.S. Supreme Court because the 14th Court considered issues related only to state law and the Texas Constitution.

The 14th Court’s decision is not the first time the law has been ruled unconstitutional. In 1993, the Austin-based 3rd District Court of Appeals ruled that the law violated the state right of privacy.

But the Texas Supreme Court reversed that ruling, saying the 3rd Court didn’t have jurisdiction over the case.

The 14th Court did not address whether the law violated the state right of privacy or any federally guaranteed rights.

• American-Statesman staff contributed to this report.

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