Last edited: February 14, 2005

Texas Sodomy Law May Face Supreme Court

Datalounge, April 19, 2002

AUSTIN, Tx.—The Lambda Legal Defense and Education Fund announced Thursday it will likely appeal to the United States Supreme Court a case brought against two Houston men who were arrested on sodomy violations for having sex in a private apartment.

Lambda’s announcement came after the Court of Criminal Appeals, the state’s highest court on criminal cases, declined to hear a constitutional challenge to the law. That decision left in place a lower appellate court decision that said that "preserving public morality" justified the anti-gay law.

"It’s shocking that neither of the supreme courts in Texas will even consider the serious constitutional problems with this law," said Lambda Legal Director Ruth Harlow. Lambda Legal argues that the "Homosexual Conduct" law is discriminatory and conflicts with the right of privacy that all Texans enjoy.

"The law intrudes on people’s intimate lives and creates a legal double standard for lesbians and gay men. These men literally were arrested behind the walls of the home—is there any place more private?" said Lambda Legal Supervising Attorney Susan Sommer.

John Lawrence and Tyron Garner were arrested and put in jail for 24 hours on a misdemeanor charge of deviate sexual intercourse after police responded to a false burglary tip called in by an embittered ex-lover of one of the men.

After several lower court hearings, the case went before the 14th District Court of Appeals, and 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.

The following March, however, the full court reversed the decision. Lambda Legal filed a final state court appeal with the Texas Court of Criminal Appeals in April. The Court did nothing for a year before turning aside the case without comment on Wednesday.

This law greatly harms not just our clients, but gay men and lesbians throughout the state," said Lambda Legal’s local counsel in Houston, Mitchell Katine. "We now are left with no recourse but the U.S. Supreme Court."

Texas has had a sodomy law since 1860 but decriminalized such activities by different-sex partners in 1974. Texas is now one of only three states, along with Kansas and Oklahoma, that prohibit consensual sex acts between partners of the same-sex—a legal distinction that Lambda contends violates equal protection statutes of the federal constitution.

The U.S. Supreme Court has not addressed the constitutionality of anti-gay sex laws since it upheld Georgia’s sodomy statute in the 5-4 Bowers v. Hardwick case in 1986, a decision that hobbled the constitutional rights of gay Americans.

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