Last edited: February 14, 2005

Appeals Court Upholds Texas Sodomy Law

DataLounge, March 15, 2001

AUSTIN — A Texas Court of Appeals has upheld the state’s "Homosexual Conduct" law and reinstated the conviction of two Houston men found by police having sex in the privacy of one man’s home, it was announced Thursday.

The decision provoked a storm of outrage from gay civil rights advocates and the promise of a swift appeal to the Texas Supreme Court.

"The government does not belong in people’s bedrooms policing consensual adult intimacy, nor can it have one rule for gay people and another one, granting more freedom, for non-gay people," said Ruth Harlow of the Lambda Legal Defense and Education Fund.

Harlow, who argued the case before the Texas court, said, "The State here condemns lesbian and gay couples in a way that the Constitution does not permit."

Lambda argues that the Texas law poses stark problems of inequality that conflict with the basic constitutional right to equal protection and is contrary to the right to privacy that all Texans enjoy.

In a spirited dissent, two justices on the Fourteenth Circuit Court of Appeals emphasized that "Equal protection simply requires that the majority apply its values even-handedly."

Rejecting the only asserted justification for the law, the dissent stressed that, "It makes no sense for the State to contend that morals are preserved by criminalizing homosexual sodomy while supporting sodomy by heterosexual couples, including unmarried persons."

The case began September 17, 1998, when sheriff’s deputies, responding to a false report of an armed intruder, entered a private Houston apartment where they found the pair having sex.

Both men were arrested and jailed for over 24 hours before being released on $200 bond each. A county criminal court convicted John Lawrence and Tyron Garner of a Class C misdemeanor, which carries up to a $500 fine.

Lambda appealed on their behalf.

Last June, a panel of the appeals court held that the statute violates the Equal Rights Amendment of the Texas Constitution because it punished only certain couples for oral or anal sex without adequate justification. Texas has had a sodomy law since 1860, but decriminalized such activities by different-sex partners in 1974.

On motion by the state, the entire appeals court reheard the case, ruling 7-2 to overturn the panel’s ruling.

Said Harlow, "Contrary to this decision, the courts’ role is to protect individual liberties when the legislature and prosecutors have overstepped." She said that Lambda would petition for review in the Texas Court of Criminal Appeals.

Katine added, "It’s a sad day in Texas when our courts do not rise to the occasion of having to enforce vital constitutional principles."

Texas now is one of only four states, along with Arkansas, Kansas and Oklahoma, that prohibit consensual sex acts between same-sex partners only.

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