Last edited: February 14, 2005

Court Upholds Texas Sodomy Ban /, March 16, 2001

By Matt Alsdorf

SUMMARY: Texas is one of only four states that prohibits sodomy for gays and lesbians, but makes it legal for opposite-sex couples. And an appeals court has determined that it is not within it’s power to change that fact.

A Texas appellate court Thursday upheld the state’s ban on gay sex, overturning an earlier decision by a smaller panel of the same court that found the sodomy statue to be in violation of the state constitution’s equal rights provision.

The all-Republican 14th Court of Appeals voted 7-2 to preserve the rarely enforced law. Writing for the majority, Justice J. Harvey Hudson said that the right to make or change laws must be reserved for the legislature.

"Certainly, the modern trend has been to decriminalize many forms of consensual sexual conduct even when such behavior is widely perceived to be destructive and immoral," wrote Hudson, according to the Houston Chronicle. "Our concern, however, cannot be with cultural trends and political movements because these can have no place in our decision without usurping the role of the Legislature."

But, Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund, who argued the case on behalf of the men who were charged with sodomy, said the decision "failed to enforce the constitution’s promise of equality."

"It guts the right to privacy," she said. "The government does not belong in people’s bedrooms policing consensual adult intimacy."

The case arose from the 1998 arrests of John Geddes Lawrence and Tyrone Garner, who were caught having consensual sex when police entered Lawrence’s apartment on a false report that there was an armed intruder. The two were arrested for sodomy and jailed for a day before being released on $200 bond each.

They challenged their arrests on the grounds that it was a violation of the Equal Rights Amendment of the Texas Constitution for the state to ban certain acts for same-sex couples but to keep them legal for opposite-sex partners. According to Lambda, Texas has had a sodomy law since 1860, but it decriminalized such acts for different-sex couples in 1974.

Texas, which makes homosexual sex a misdemeanor punishable by a fine of up to $500, is one of just four states that prohibits sodomy between gay partners only. Approximately a dozen other states, mostly in the South, criminalize sodomy for both same- and opposite-sex couples.

Last year, a three-member panel of the 14th Court voted 2-1 that the law was unconstitutional. The two justices in the majority on that decision dissented from the Thursday ruling.

Lambda has promised to take the case to the Texas Court of Appeals, though the Chronicle reports that there is some skepticism about whether the conservative court will agree to hear the appeal.

The decision is only binding on the 14 counties over which the 14th Court has jurisdiction, according to the Chronicle. But because the district includes Houston, the state’s largest city, the court is often looked to for guidance by judges elsewhere.

The Texas legislature will be considering a sodomy repeal measure this year introduced by Democratic Rep. Debra Danburg. Danburg expects the bill to make it out of the now-majority-Democrat House criminal jurisprudence committee where it failed last year.

But the Republican Party of Texas is strongly opposed to reform. The party platform last year included a public rebuke for the two judges who found the sodomy law unconstitutional.

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