Last edited: February 14, 2005

Gay Sex Law Appealed to U.S. High Court / Network, July 16, 2002

By Ann Rostow

SUMMARY: Lambda Legal Defense and Education Fund has asked the U.S. Supreme Court to review the Texas "homosexual conduct" law.

As expected, Lambda Legal Defense and Education Fund has asked the U.S. Supreme Court to review the Texas "homosexual conduct" law.

In a petition filed Tuesday, the legal group appealed the case of two Houston men, John Lawrence and Tyron Garner, who were arrested in their own home by police following up on a false call placed by an old boyfriend. The men were subsequently jailed for 24 hours, convicted and fined $200 each.

Texas is one of just four states, including Kansas, Missouri, and Oklahoma, that criminalizes same-sex couples for private, consensual sex. Up until recently, there were five such states, but the Arkansas Supreme Court struck that state’s sodomy law as unconstitutional on July 5. Nine other states retain sodomy laws that apply to all couples, gay or straight.

If the justices accept the case, Lambda will argue that sodomy laws in general violate constitutional privacy rights, and that Texas’s law violates the right to equal protection as well. Four of the nine justices must agree to hear the appeal in order for the case to proceed, and although only a few of the many appeals to the high court are accepted, there are strong reasons to believe Lawrence and Garner v. Texas may be one of those few.

In the mid-1990s, the Texas Supreme Court backed away from ruling on an earlier sodomy case, determining that the issue was out of its jurisdiction and belonged in the criminal courts. After their arrest in 1998, Lawrence and Garner indeed took their case up the criminal court ladder, winning a state appellate verdict, which was overturned by the full appellate court.

That ruling, in turn, was appealed to the Texas Court of Criminal Appeals—the highest criminal court in the state—in the spring of 2001. After doing nothing for a year, however, the Court of Criminal Appeals declined to hear the case without explanation last April.

At a time when state supreme courts all over the country have been addressing the constitutionality of sodomy laws, the two courts of final appeal in Texas have both ducked the issue. The day after the April non-ruling by the Court of Criminal Appeals, Lambda announced that it was "likely" to appeal to the U.S. Supreme Court, in part due to the inaction of the Lone Star State courts. That inaction is also a compelling reason for the high court to take the case, the lawyers believe.

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