Last edited: February 14, 2005

Texas Sodomy Case on Firm Legal Ground

The Data Lounge, July 23, 2002

AUSTIN, Tx.—For the fourth time in two decades, gay civil rights advocates have launched a major challenge to the so-called "homosexual conduct law" in Texas in putting a request before the U.S. Supreme Court. The Austin American Statesman reports that the law has been challenged and three times the courts have failed to declare the statute unconstitutional. Gay civil rights lawyers think the legal currents may finally be turning in their favor.

"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 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."

All but a dozen of the state sodomy laws still on the books in the U.S. have been repealed. Texas and Kansas remain the only two states left with laws specifically prohibiting acts between two males, a distinction rights advocates say renders these laws discriminatory—and vulnerable. "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.’ "

The argument is persuasive, but convincing a top appeals court to consider the constitutional question has been difficult. Legal skirmishes have been fought and won, but the war has repeatedly been lost. All three 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 address the question.

The newspaper contends that many of the earlier cases may 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 arrest of two Houston men in a private residence for breaking the state’s sodomy statute makes that challenge possible.

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

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