Last edited: December 18, 2004

Texas Ban on Gay Sex Faces New Legal Fight

Activists hope high court will call sodomy law unconstitutional

Austin American-Statesman, July 22, 2002
Box 670, Austin, TX 78767
Fax: 512-912-5927

By David Pasztor, American-Statesman Staff

Its very name—the "homosexual conduct" law—is considered an affront by most Texas gays and lesbians. But the title itself is merely a symbolic target for the rage homosexuals feel toward a statute that makes their sexual lifestyle a crime.

Now, for the fourth time in more than 20 years, gay rights advocates have launched a major challenge to the law, last week asking the U.S. Supreme Court to find it unconstitutional.

Three times before they have tried to wipe the statute from the books, and three times they have failed. Gay rights lawyers hope the legal currents finally may be turning their way.

"This law is unique in being among a very small minority of state laws that single out only the conduct of gay people," said Susan Sommer, an attorney with the New York office of the Lambda Legal Defense and Education Fund. "It hurts people because it has, since its inception, been used as a justification for all manner of discrimination against gay men and lesbian women."

Although most states had anti-sodomy statutes at some point in their histories, and about a dozen still do, Texas and Kansas remain the only two with laws specifically prohibiting homosexual acts.

The Texas statute, passed in 1973 when a more general sodomy law was revised, made it a Class C misdemeanor for adults of the same sex to engage in "deviate sexual intercourse," specifically defined as oral or anal sex, even between consenting adults in the privacy of their own homes. The same acts between heterosexuals are legal, unless performed in public, with a minor or without consent.

That distinction, gay rights advocates say, makes the Texas law discriminatory against gays.

"If the majority is going to impose its moral values on the minority, it has to impose them on itself," Sommer said. "It can’t say, ‘It’s immoral when you do it, but not immoral when I do it.’"

But persuading a top appeals court to consider the constitutional question has been difficult. Gay rights lawyers have won some battles in previous legal efforts but have always lost the war. All three of the ultimate courts with the power to strike down the law—the Texas Supreme Court, the Texas Court of Criminal Appeals and the U.S. Supreme Court—have rebuffed past efforts to directly address the question of whether the statute is an unconstitutional infringement on privacy and equal protection of the law.

In part, the earlier cases have failed because the argument was theoretical. Appeals courts often want to see that someone has actually been prosecuted under a law before they accept a case. The Texas sodomy law’s supporters were able to point out, correctly, that no one had been arrested for violating the statute.

That is no longer true.

The Houston case

In 1998, sheriff’s deputies raided the Houston home of John Lawrence, answering a call about a reported "weapons disturbance" that later proved to be false. Inside, the officers found Lawrence and Tyron Garner having sex. The two men were arrested, taken to jail and released the next day.

Charged with violating the homosexual conduct law, the men ultimately pleaded no contest. Each was fined $200, plus $141.25 in court costs. Their appeal to the U.S. Supreme Court, filed Tuesday, is the case gay rights advocates hope will finally compel a high court to specifically address constitutional questions.

"If the court (agrees to hear the appeal), this case presents front and center the question of whether it’s constitutional," Sommer said.

But Kelly Shackelford, chief counsel for the Liberty Legal Institute, which supports the sodomy statute, said he thinks it is unlikely the nation’s high court will agree to take the case.

"I think (the Houston case) is a fairly weak legal argument," Shackelford said.

Sommer, however, is hoping for a break in a long chain of legal disappointments.

Earlier challenges

The first serious challenge to the law came in 1979, when Dallas teacher Don Baker persuaded a federal judge in Dallas to rule the law unconstitutional. That ruling was reversed by the 5th U.S. Circuit Court of Appeals, and the U.S. Supreme Court declined to hear Baker’s appeal.

In 1989, five gay men and women filed another lawsuit in state court challenging the law. A state district judge struck down the law, and a state appeals court agreed it was unconstitutional. But when then-Attorney General Dan Morales appealed to the state’s two highest courts, both balked. The Court of Criminal Appeals decided it had no jurisdiction in the case, and the state Supreme Court decided the same thing, leaving the question unresolved.

Meanwhile, on a third legal front, Mica England, who is lesbian, sued the City of Dallas in 1990 after she was denied a job with the Police Department. Her case cut to the very heart of what critics say is the danger of the homosexual conduct statute. By admitting she was a lesbian, England effectively admitted she was a criminal, and the department refused to hire her.

A trial court found the department’s policy illegal but did not throw out the statute itself, and the Texas Supreme Court again declined to hear an appeal that might have settled the issue. The city eventually settled with England for $73,000, but the underlying legal question remained unanswered.

The statute’s critics hope to gain some momentum from an Arkansas Supreme Court decision earlier this month throwing out that state’s sodomy statute. Although the case doesn’t directly compare to Texas law, Sommer said it reflects a growing will by courts to strike down such laws.

If the U.S. Supreme Court does decide to take on the Texas appeal, it will revisit a question last addressed in a 1986 Georgia case. Then, the court decided 5-4 that Georgia could outlaw certain sexual acts, even if they were performed in private by consenting adults.

Shackelford said the public has an interest in outlawing homosexual behavior, both for moral and public health reasons, and that he sees no indication that the court will reverse itself now.

"It’s been addressed by the Supreme Court," Shackelford said. "They basically said the people can decide what kind of conduct is moral and what’s not."

Harris County District Attorney Chuck Rosenthal, whose office prosecuted Lawrence and Garner, said he plans to defend the state law if the Supreme Court agrees to hear the case. Although it is not unusual for the state attorney general to assist in defending state statutes, Rosenthal said he has not asked John Cornyn, the current attorney general and Republican candidate for U.S. Senate, for help.

The two men seeking to replace Cornyn—one of whom will be in office if the case is ever argued before the high court—disagree on how it should be handled.

Republican attorney general candidate Greg Abbott said he would "vigorously" defend the statute if called upon to do so. Democratic candidate Kirk Watson said he thinks the Harris County district attorney should deal with the appeal.

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