Anti-Sodomy Law Challenged
Texas Presents Unique Test Case
Law
News Network, November 9, 1999
Nathan Koppel
Email: nkoppel@amlaw.com
In a packed Houston courtroom Nov. 3, the Lambda Legal Defense and Education Fund took
aim at Texas’ 119-year old anti-sodomy law, arguing the time has come to declare it
unconstitutional.
Titled the "Homosexual Conduct Law," Texas Penal Code §21.06 penalizes oral
or anal sex between same-sex couples as a Class C misdemeanor, which carries up to a $500
fine but no jail term.
If the 14th Court of Appeals does not overturn §21.06 in Lawrence and Garner v.
State, Texas will remain one of only four states, along with Kansas, Oklahoma and
Arkansas, with an anti-sodomy law targeted exclusively at gays. Twelve other states have
such laws, but they extend to same-sex and different-sex partners.
At press time, an Arkansas Circuit Court was considering a constitutional challenge to
the state’s anti-sodomy law, which is also being advanced by New York City-based
Lambda.
The Texas case is unique in that it involves an arrest. According to appellate briefs,
Houston police officers arrested John Geddes Lawrence, 56, and Tyron Garner, 32, in 1998
for allegedly engaging in anal sex. Lawrence and Garner pled no contest to the charges.
In other challenges to anti-sodomy laws, including the one in Arkansas, petitioners
have filed civil suits proactively, triggering a procedural defense that the suits are not
ripe for adjudication since the law has not been enforced against the plaintiffs.
Citing such a procedural defect, the Texas Supreme Court in 1994 held in State v.
Morales that it had no jurisdiction to address whether §21.06 is unconstitutional.
While the issue is now squarely before the 14th Court, the Harris County District
Attorney’s Office, which is defending the state, has asked the court to show
restraint.
"The Legislature is the public policy establisher for the community. It is up to
the Legislature to decide what is against the law," says District Attorney John B.
Holmes Jr.
In its appellate brief, the state notes that the Legislature in 1974 altered §21.06 so
that it would apply only to gays, instead of gays and heterosexuals as it had previously
done. This recent activity shows the Legislature continues to believe same-sex sexual
conduct is "immoral and unacceptable," the state argues in its brief.
To the contrary, says state Rep. Debra Danburg, D-Houston, the Legislature is merely
incapable of sticking its neck out to spare gays from the anti-sodomy law.
"I have filed legislation to repeal §21.06 on a number of occasions and because
of the relative controversy, I have been unable to even so much as get a hearing,"
she says.
But a lack of legislative will does not empower courts to second-guess §21.06, says
Lino Graglia, a constitutional law professor at the University of Texas School of Law.
"It doesn’t change the fact that the Legislature must decide issues of social
policy," he adds.
STRICT OR RATIONAL?
Arguing first, Ruth Harlow, Lambda’s managing attorney, sketched out her
constitutional attack: Section 21.06 violates the 14th Amendment’s equal protection
clause because it treats gays differently than heterosexuals, she argued, and it violates
the Texas Constitution’s right to privacy.
According to briefs, the defendants were arrested in Lawrence’s apartment; police
had entered the apartment to investigate a reported disturbance.
If the Texas right to privacy stands for anything, Harlow said, it must protect
"private sexual intimacy by consenting adults."
The panel consisted of Chief Justice Paul C. Murphy and Justices J. Harvey Hudson and
John S. Anderson, all Republicans.
The judges’ questions to Harlow focused on what legal standard the court should
use in assessing the constitutional viability of §21.06.
The state argues the anti-sodomy law passes muster because there is a "rational
basis" for the law, namely the discouragement of immoral behavior and the promotion
of family values.
On Nov. 3, though, Harlow said the court should apply a more exacting "strict
scrutiny" and strike down the law, because it does not serve a "compelling
government interest."
While a legislature can consider social mores in passing laws, she said, "mores
[alone] aren’t enough to justify discriminatory classifications."
"Family values," she added, also do not furnish a compelling interest but are
merely repackaged "majoritarian moral sentiment."
William J. Delmore III, an assistant Harris County DA, argued the state’s case.
He was also deluged with standard-of-review questions.
Murphy wanted to know what evidence the state has introduced to meet a strict-scrutiny
standard.
"There is no evidence on the record," Delmore conceded, "to support a
compelling need for this legislation."
He argued, though, that the rational-basis test is applicable because §21.06 does not
implicate a fundamental constitutional right.
"Is there a fundamental right to engage in homosexual conduct? I believe there is
not," he said.
And the court, he added, does not have the authority to challenge the purported
rational basis for §21.06: discouraging immorality.
"Throughout history, there has been a historical, cultural and religious consensus
that homosexual conduct is immoral," he said. "Only a majority of the electorate
can determine whether that morality has changed."
After the arguments, Houston lawyer Mitchell Katine, who is assisting Lambda, said his
clients will take their fight to the U.S. Supreme Court if need be.
"The reaction to this by most people that we speak to is that they can’t
believe [the arrest] really occurred," Katine says. "That is one reason it is so
important that we go forward. . . The sexual conduct of gays and lesbian people every day
and every night in this city is criminalized by the presence of this statute on the
books."
[Home] [News] [Texas]
