Last edited: February 14, 2005

Sodomy Appeal May go to Supreme Court / Network, April 18, 2002

By Ann Rostow

SUMMARY: A challenge to the Texas sodomy law by plaintiffs Tyron Garner and John Lawrence may go to the Supreme Court.

The Texas Court of Criminal Appeals declined on Wednesday to hear the appeal of a 1998 sodomy case involving two Houston men, arrested in their own home for having sex, so now the case may be headed for the U.S. Supreme Court.

Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund, expressed shock at the decision, telling the Network that Lambda is "very likely" to appeal the case to the U.S. Supreme Court, but will make a final decision in the coming days.

On Sept. 17, 1998, Tyron Garner and John Lawrence were thrown in jail for 24 hours on a misdemeanor charge of deviate sexual intercourse, after police entered their home while responding to a false burglary tip called in by an angry ex-lover.

From the start, legal experts felt the case seemed tailor-made to contest the 140-year-old Texas sodomy law, which was revised in 1974 to criminalize homosexual sex only.

After several lower court hearings, the case went before the 14th District Court of Appeals, which covers 14 counties around Houston. In June of 2000, a divided three-judge panel struck down the law, ruling that it unconstitutionally discriminated on the basis of sex, violating the state’s Equal Rights Amendment.

But the following March, the full court reversed that decision, and Lambda Legal Defense appealed to the Court of Criminal Appeals that April. The Court did nothing for a year, before deciding not to take the case without comment on Wednesday.

The refusal to hear the case puts Texas in a quandary. In the mid-1990s, the state Supreme Court heard a sodomy appeal but avoided taking a stand by ruling that the question of sodomy belonged in the criminal courts of Texas. The nine justices on the Court of Criminal Appeals are the final arbiters of Texas criminal law, and their inaction leaves the constitutional status of the Texas law in limbo.

"We’re shocked that they refused to hear the case," said Harlow on Thursday. "It’s very sad that they wouldn’t even hear our arguments, and it’s troubling because we were appealing to the only one of the two high courts that was in a position to review the serious constitutional claims we were making about the statute. And they just said no."

Harlow said that Lambda, which is lead counsel in the case, is now looking "very closely" at asking the U.S. Supreme Court to review the federal constitutional questions at stake. The high court has not addressed the issue of sodomy laws since it upheld Georgia’s sodomy statute in the 5-4 Bowers v. Hardwick ruling, a decision that has haunted gay rights litigation for the last 17 years.

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