Last edited: February 14, 2005

Court Upholds Sodomy Ban in Refusing to Hear Appeal

Houston Chronicle, April 19, 2002
801 Texas Avenue, Houston, TX 77002
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By Alan Bernstein, Houston Chronicle

In a case stemming from the 1998 arrest of two Houston men, the highest criminal court in Texas has preserved the stateís ban on homosexual sodomy.

Without explanation, the nine judges on the Texas Court of Criminal Appeals refused to consider the menís appeal, which was filed by a national gay rights group called Lambda Legal.

The group said it will probably take the case to the U.S. Supreme Court.

The state court ruling, released Wednesday, leaves Texas as one of four states whose ban on anal and oral sex and other acts applies only to homosexuals. Sodomy among opposite-sex partners was illegal in Texas until 1974.

Most states do not prohibit sodomy.

Lambda, which views the sodomy law as discrimination against homosexuals, said the state court should have at least considered the issues in the appeal.

"It is quite shocking that the court today would not open up its courthouse to these issues," Lambda director Ruth Harlow said Thursday.

But Harris County Assistant District Attorney Bill Delmore, who represented the state, said the courtís refusal to hear the case was not surprising because the issues were explored by an intermediary court, the Houston-based 14th Court of Appeals.

That court upheld the sodomy ban last year, saying the Legislature was free to make laws based on its view of moral conduct.

"I donít think there was much more to be said," Delmore remarked.

The Houston case, which spawned controversy within the Republican Party, started with a caller making a false report to Harris County deputies about a man wielding a gun at a dwelling. Deputies went to the home and found John G. Lawrence, 58, and Tyrone Garner, 34, having sex. They were charged with a Class C misdemeanor under the state sodomy law.

The men pleaded no contest, were fined $125 each by a justice of the peace, and used their case to test the constitutionality of the law, which has been under attack for years by several gay rights groups.

In 2000, a three-judge panel on the all-Republican 14th Court of Appeals struck down the sodomy law as unconstitutional by a 2-1 vote. They said it violates the Equal Rights Amendment of the state Constitution by singling out gays. Prosecutors asked for a ruling by all nine judges.

In the meantime, the Texas Republican Party adopted a platform calling for the election defeat of the two Republican judges who ruled against the sodomy ban, Paul Murphy and John S. Anderson. The state GOP officially opposes sodomy and gay rights.

Harris County Republican Party leaders drafted a letter asking Anderson, who was unopposed for re-election, to change his ruling or step aside for a replacement candidate. But the letter to Anderson was never sent after some GOP chairmen in other counties served by Andersonís court refused to sign it.

In February 2001, Murphy, 65, retired from the bench two years before the end of his term. He said the sodomy case had nothing to do with the move. A month later, the 14th Court of Appeals upheld the sodomy law 7-2, with Murphy and Anderson dissenting.

Like that court, the nine-member Texas Court of Criminal Appeals is made up of Republicans.

The Texas Supreme Court, which handles civil cases, rejected a 1998 lawsuit by Houston gay activist Linda Morales to throw out the sodomy ban on the grounds that it discriminates. The court ruled that a challenge to the criminal law should be handled by the Court of Criminal Appeals.

Experts said the sodomy law is hardly ever enforced in Texas.

Delmore, chief of the appellate division at the Harris County district attorneyís office, said the case involving Garner and Lawrence was the only one of its kind in the county in more than 20 years.

Gay rights groups, however, say the law is used to discriminate against gays when they apply for jobs or housing and are asked if they have ever committed crimes.

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