Last edited: February 14, 2005

Is It Curtains for the 140-Year-Old Sodomy Statute?

Austin Chronicle, August 11, 2000
PO Box 49066, Austin, TX, 78765
Fax: 512-458-6910

By Jonathan David Carroll

When Danny Cortese’s plane landed in Texas he realized that, for the first time in his life, he could be arrested for being himself. Cortese doesn’t steal cars or rob banks, but he is gay, and Section 21.06 of the Texas Penal Code makes homosexual conduct a crime.

"In New York it’s ‘live and let live,’" says Cortese, a graduate student in sociology at the University of Texas. "Here it’s ‘live like me and I’ll let you live.’"

Although the law is rarely enforced, it’s still a cloud that hangs over his life. "Just knowing that it’s there is a low. It’s reprehensible," he says. "Just knowing that there’s a sodomy law. ... It may not be something that’s constantly in front of your mind, but it’s definitely pervasive and especially [so] knowing that sodomy is legal for straight people; it further marginalizes you."

However, a recent ruling by the Texas 14th Court of Appeals and a pending decision by the Texas Court of Criminal Appeals may soon vaporize that cloud in Cortese’s life.

On June 8, a three-judge panel ruled 2-1 that the law banning anal and oral sex between homosexuals (but allowing it between heterosexuals) violates the Equal Rights Amendment of the Texas Constitution by singling out one group of individuals. The court made its ruling in Lawrence and Garner v. Texas, in which two men, John Geddes Lawrence and Tyrone Garner, were arrested for having anal sex after police broke into their bedroom on a false lead.

"Hopefully, it’s a signal that we’re one step away from overturning this law," says Ruth Harlow, deputy legal director of Lambda Legal Defense and Education Fund Inc., the gay rights group that represented the men. But though the decision is significant, it only applies to the 14th Court of Appeals’ jurisdiction until the Texas Criminal Court of Appeals rules on it, Harlow says. Until then, the state’s 13 other appellate courts can rule any way they wish on the issue.

The law was challenged in court after Harris County sheriff’s deputies burst into Lawrence’s Houston apartment on Sept. 17, 1998, following a false lead that there was an intruder with a gun "going crazy" inside.

When deputies entered the apartment, the only craziness they found was Lawrence and Garner having sex in the bedroom. According to a sworn police affidavit, "conducting a search for the armed suspect, officers observed the defendant engaged in deviate sexual conduct, namely, anal sex, with another man."

Lawrence and Garner were arrested and jailed on charges of "deviant homosexual" conduct — a class C misdemeanor. The two spent the night in jail and were released on bail the next day. Both were fined $200 for breaking Texas’ sodomy law. They both pleaded no contest before a justice of the peace and, later, in a Harris County Criminal Court-at-Law, which enabled them to challenge the law’s constitutionality. The appeals court’s ruling effectively dismissed the complaints filed against them.

Harris Co. District Attorney John B. Holmes Jr. says his office will appeal the court’s decision. When contacted by telephone recently, Holmes said he did not wish to discuss the case, explaining that he does not discuss cases that are under litigation. When asked why, after talking to numerous other reporters, he no longer wanted to discuss the matter, Holmes simply hung up.

Holmes’ appeal will go the Texas Court of Criminal Appeals and most likely won’t be reviewed until next year. At that point, the court will have at least two new justices, because two of its conservative justices, Republicans Michael McCormick and Steve Mansfield, do not plan to run for re-election. Republican Charles Holcomb, a former appeals court judge from Tyler, will likely take Mansfield’s spot; he has no Democratic opponent, but will face Libertarian Rife Scott in November. Justice Sharon Keller is resigning her seat in a bid to replace McCormick as presiding judge of the all-Republican court; she faces Democrat Bill Vance in November. And Republican Barbara Parker Hervey, a San Antonio prosecutor, is up against Democrat William Barr for Keller’s seat.

But even if the GOP wins all those races, which Houston appellate attorney and legal analyst Brian Wice believes is likely considering the recent history of judicial elections in Texas, the court could become more moderate than it has been in recent years. "You’re going to have a different lineup," says Wice. "The judges will be infinitely more moderate than their predecessors."

Although Wice and other legal analysts interviewed for this story didn’t want to speculate on the outcome of this particular case, gay and lesbian rights activists were hopeful that the law would be overturned once and for all. "We’re very excited by it," says Elizabeth Brenner, a field coordinator for the Austin-based Lesbian/Gay Rights Lobby of Texas (LGRL). "It’s an exciting ruling, and hopefully they’ll take a look at the law and see how archaic it really is."

Harlow is similarly optimistic. "We’re hoping for an open-minded hearing," she says. "It’s important to remember that [what the law] does is make an act criminal for some people, but not for all. It’s not fair. It discriminates."

And even though the Texas sodomy law is rarely enforced in the way in which it was with Garner and Lawrence, many believe it is used to discriminate against gays and lesbians. "A lot of people have a misinformed attitude about the [sodomy] law," says Steve Labinski, president of the Log Cabin Republicans of Texas. "They think because it’s a class C misdemeanor that it’s meaningless. It is used to justify discrimination. That’s why it’s so important that it’s repealed."

During last year’s legislative session, the sodomy law was invoked by legislators who tried to pass a bill that would have prevented gays and lesbians from adopting and fostering children.

Defining ‘Deviant’

The sodomy statute became part of the Texas Penal Code in 1860. Article 342 of the code stated that "Whoever commits with mankind or beast the abominable and detestable crime against nature shall be confined in the penitentiary for not less than five nor more than fifteen years."

At the close of the century, legislators became less bashful and specifically outlawed sodomy for both straight and gay couples. As it had previously, the sodomy statute also included bestiality. According to the 1895 Texas Penal Code, any person who engaged in sodomy acted "unlawfully, wickedly, diabolically and against the order of nature."

The statute went through minor changes through the years until 1943, when it was broadened to outlaw oral and anal sex between straight couples, gay couples, and "man and beast." According the 1943 Texas Penal Code, "Whoever has carnal copulation with a beast, or in an opening of the body except sexual parts, with another human being, or whoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation, or who shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor, shall be guilty of sodomy and upon conviction thereof shall be deemed guilty of a felony, and shall be confined in the penitentiary for not less than two nor more than fifteen years."

In 1974, the Texas Legislature freed heterosexual couples in their bedrooms from the constraints of the sodomy law, but the same freedom was not given to gay and lesbian couples. Section 21.06, the "homosexual conduct" statute, was passed that year, stating that "A person commits an offense if he engages in deviate sexual intercourse [defined elsewhere as "any contact between any part of the genitals of one person and the mouth or anus of another person"] with another individual of the same sex."

In 1993, the issue came to light again with the revision of the Texas Penal Code, but legislators passed on the opportunity to remove it. During the revision, the Punishment Standards Commission recommended removing from the code laws that prohibited everything from writing hot checks and stiffing taxi cab drivers to homosexual conduct. The new Texas Penal Code, which passed the Senate without the homosexual conduct statute, sparked a bitter debate when it was introduced into the state’s lower chamber. "It ran into a wall and couldn’t get out of the House," says Gary Kansteiner, senior counsel for the Texas Legislative Council.

On the floor of the house, a now-legendary exchange took place between conservative Rep. Warren Chisum (R-Pampa) and Rep. Debra Danburg (D-Houston). The exchange was provoked after Chisum introduced an amendment to the penal code outlawing sodomy regardless of sexual orientation.

"Mr. Chisum, you’re trying to make it criminal even between the opposite sex, even if they are married?" Danburg asked.

"Especially if they are married," he replied. "I can’t believe anyone would do that if they were married."

Their squabble escalated.

"If my husband and I were having sex and it touched my anus, do I need to go turn myself in to some health official?" Danburg asked.

"I suggest your husband goes to see a doctor about his aim," Chisum replied.

Chisum’s amendment failed, but the ban on homosexual conduct was restored and approved by the House. A conference committee adopted the House version after six deadlocked votes on the issue. "It’s a pretty up-and-down issue without a lot of room for compromise," notes Kansteiner.

Since the homosexual conduct statute was restored seven years ago, efforts to get it taken out of the law have continued. Both Danburg and Rep. Glen Maxey (D-Austin) have repeatedly filed bills to remove it from the penal code. But response from other members of the House has been cool. Neither representative has been able to garner enough support to bring a bill to remove the statute to the House floor for a vote.

"There’s a lot of Texas senators and representatives that come from places where being gay doesn’t fly back home," Danburg said. "It’s frustrating because there are so many people who believe everyone should be part of the government, but the mention of homosexuality makes them throw all their goodwill out the window. ... It’s inappropriate and sad."

Sodomy laws are not unique to Texas. Until the 1960s, all 50 states had laws outlawing anal and oral sex. These laws began to be repealed and stricken down by the courts in a growing number of states in the 1960s. Today, 13 states have sodomy laws that apply to both heterosexual and homosexual couples: Alabama, Arizona, Florida, Idaho, Louisiana, Michigan, Massachusetts, Michigan, Minnesota, North Carolina, Utah, and Virginia. Five more have sodomy laws that apply only to same-sex couples: Arkansas, Kansas, Oklahoma, Missouri, and Texas.

They Fought the Law

Texas gay rights activists have worked for years to overturn the sodomy law. In his South Austin apartment, Austin attorney and gay activist Tom Doyal talks about his involvement in the gay community’s repeated attempts to get the law overturned. "To me, it never mattered if we won or lost; we just had to keep fighting," Doyal says. "Otherwise, we were cooperating in our own oppression. And it was a great opportunity to educate the public and raise funds for the Texas Human Rights Foundation. There were lots of reasons to do it — win, lose, or draw."

The law was first seriously challenged in federal court in 1979, by Dallas gay rights activist Don Baker. U.S. District Judge Jerry Buchmeyer struck down the law, but it was reinstated on appeal by the 5th U.S. Circuit Court of Appeals. That decision was backed by a 1986 decision by the U.S. Supreme Court in Hardwick v. Bower. In that case, a Georgia man challenged his state’s sodomy law, but the court sided with the state, essentially giving states the right to regulate sexual behavior.

In Texas, gay rights activists decided to fight back against the ruling by putting together a case that would challenge the law as a violation of privacy and also of the state’s Equal Rights Amendment. "We decided to see what we could do rather than be stymied forever by Bower v. Hardwick," Doyal says.

Linda Morales, an activist for gay and lesbian causes, filed suit against the state along with four other plaintiffs, alleging that the sodomy law affected their relationships with their families and stigmatized them as criminals. "It was a test case to see how far we could get it through the state court system," Doyal says.

In 1992, the Texas Third Court of Appeals agreed with Morales and voted 3-0 to strike down the sodomy law. While the case was being appealed, another suit challenging the sodomy law was filed.

Mica England sued the city of Dallas in an Austin state district court when she wasn’t allowed to apply for a job with the Dallas Police Department because she was a lesbian. The judge in England’s case ruled that the police department’s practice of screening applicants for sexual orientation was unconstitutional. An appeals court agreed, but the city lost its chance to have the law overturned when it missed the deadline to file for an appeal and the Texas Supreme Court was unable to hear the case.

"We were stunned because the city of Dallas filed no appeal," Doyal says. "We were trying to figure out what tricks they were playing on us. But in fact, they just fucked up."

Then in 1994, the Morales case came before the Texas Supreme Court, but the court refused to hear it because none of the plaintiffs had been legally prosecuted. After that, the legality of the sodomy law became unclear. Although both sides claimed victory, the England case only restricted bias in employment. It did not successfully overturn the sodomy law.

"The waters were considerably muddied," Doyal says. But he believes Lawrence and Gardner’s case may be the one "that will get this sucker declared unconstitutional."

If the Texas Court of Criminal Appeals overturns the sodomy law, gay men and women may never have to fear that their privacy will be invaded by the government again. Says Harlow: "We never want the government crashing into people’s bedrooms like they did again."

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