Arrests Will Put Sodomy Law on Trial
Gay Rights Groups Using Texas Case To Challenge Statute
San Francisco Chronicle,
December 2, 1998
901 Mission St., San Francisco,CA,94103
Fax 415-896-1107
Email: chronletters@sfgate.com
By Paul Duggan
Rarely does a police officer witness violations of Section 21.06 of the Texas criminal
code, the section entitled "Homosexual conduct." And almost never is an arrest
made under the 119-year-old statute. So what happened recently to John Lawrence and Tyrone
Garner, in the supposed privacy of Lawrence’s bedroom, was highly unusual.
The two men were engaged in sexual intercourse when a Harris County sheriff’s
deputy walked into the apartment on another matter, saw what they were doing and hauled
them off to jail.
"In all candor, I don’t believe we’ve ever made an arrest before under
those circumstances," said Captain Don McWilliams, a sheriff’s spokesman. But
the law is the law, he said. "`We can’t give our deputies a list of statutes we
think they should enforce and a list of statutes we want them to ignore."
The arrest of Lawrence and Garner that night did more than just satisfy the
deputy’s obligation to enforce the law. It opened a new legal front in a long
campaign by gay activists across the country to do away with such statutes, which they
contend are unconstitutional.
Georgia’s highest court issued a ruling last week that struck down that
state’s law against consensual sodomy, but statutes prohibiting the practice remain
on the books in Puerto Rico and 19 states. Five of the states, including Texas, limit the
ban to same-sex couples. Now lawyers have seized on the Houston case as a vehicle to again
contest the legitimacy of the Texas statute, which has survived three legal challenges
since the early 1980s.
Among similar court challenges in four other states and in Puerto Rico, four are
lawsuits. Only two cases, in Minnesota and now Texas, stem from criminal charges. And as
gay activists see it, no case more vividly illustrates the threat such laws pose to
privacy than the Sept. 17 arrests of Lawrence and Garner.
Answering what turned out to be a bogus report of a man behaving erratically with a
gun, Deputy Joseph Quinn arrived at an apartment building east of Houston about 10:30 p.m.
and met Roger Nance, 41, who had phoned in the complaint, authorities said.
Nance directed Quinn to Lawrence’s apartment. The deputy entered through the
unlocked door with his weapon drawn. After finding no one with a gun, Quinn later wrote in
his report, he "observed (Lawrence) engaged in deviate sexual conduct, namely, anal
sex, with another man." Lawrence, 55, and Garner, 31, spent the rest of the night
behind bars before each was let out on $200 bail.
Nance’s false report, for which he served 15 days in jail, stemmed from "a
personality dispute" between him and the two men, the sheriff’s department said.
Lawrence and Garner pleaded no contest last month to violating the anti- sodomy statute
and were fined $125 each by a justice of the peace. Now the stage is set for what lawyers
predict will be a long appeals process, one they hope will end with the state’s
highest criminal appeals court invalidating the law as an infringement on privacy as
protected by the Texas Constitution.
The arrests in some ways delighted gay activists. They said the case not only provides
a long- awaited legal platform to challenge the Texas law, but also has a public-awareness
benefit, offering facts that underscore their warnings about privacy. Here, they contend,
was an instance of government authority literally reaching under a person’s blankets.
"You can’t get more private than a bedroom," said Suzanne B. Goldberg, a
lawyer with the Lambda Legal Defense and Education Fund, which is representing the men.
In the other criminal case resulting in a legal challenge, a Minnesota bartender was
arrested for engaging in oral sex with a woman in the bar after closing time.
Minnesota’s law, which applies to all couples, includes oral sex in the definition of
sodomy, as does the Texas law. But in Minnesota, police witnessed the offense after the
fact, while viewing a videotape from the bar’s security camera during an unrelated
investigation.
The Texas case "should really show the public how invasive these laws can
be," said Michael Adams, a lawyer with the American Civil Liberties Union’s
National Gay and Lesbian Task Force, which is handling the Minnesota appeal.
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