Texas Tosses 'Homosexual Conduct' Law, Clears Two Men Arrested at Home

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Sodomy law violates equal protection guarantees, appeals court rules
June 8, 2000

(NEW YORK, June 8, 2000) — A Texas appellate court on Thursday declared the state’s “Homosexual Conduct” law unconstitutional, overturning the convictions of two men arrested by Houston police in an apartment for having consensual sex, said Lambda Legal Defense and Education Fund, which defended the men.

The Texas Court of Appeals held that the statute – which bans consensual, private oral and anal sex between adults of the same sex – violates the Equal Rights Amendment of the Texas Constitution. Texas has had a sodomy law since 1860, but decriminalized sodomy by opposite-sex partners in 1974.

In his 2-1 majority opinion, Justice John S. Anderson wrote, “The simple fact is, the same behavior is criminal for some but not for others, based solely on the sex of the individuals who engage in the behavior....[W]e hold that [the sodomy law] violates the Texas Equal Rights Amendment’s guarantee of equality under the law.”

The court added, “Moreover, it does not follow that simply because the Texas Legislature has enacted as law what may be a moral choice of the majority, the courts are, thereafter, bound to acquiesce. Our Constitution does not protect morality; it does, however, guarantee equality to all persons under the law.”

Lambda Deputy Legal Director Ruth E. Harlow, who argued the case before the appeals court last November, said, “The court has rightfully put an end to a law that has made lesbians and gay men second-class citizens in Texas. Finally, they can rest assured that when they retreat to the privacy of their own bedrooms, the government will not barge in to declare them criminals.”

Suzanne B. Goldberg, a Lambda senior staff attorney who also worked on the case, added, “Today’s decision means that an excuse often used for discrimination against lesbians and gay men in employment and custody decisions is gone. Lesbians and gay men no longer are subjected to a double standard for their private sexual intimacy.”

In September 1998, sheriff’s deputies, responding to a false report of an armed intruder, entered Lawrence’s Houston apartment, where they said they found John Lawrence and Tyron Garner having sex. Police arrested both men and held them in jail for over 24 hours before releasing them on $200 bond each. The two men pleaded “no contest” to the charges in criminal court.

The state Constitution’s Equal Rights Amendment provides that, “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” The appeals court ruled that the Texas sodomy law, which applies only to same-sex partners, violated the amendment by criminalizing conduct based solely on the participants’ sex.

In issuing its decision, the court did not address the additional privacy or federal constitutional arguments in the case because it had already invalidated the sodomy law on other grounds. It is up to the state whether to appeal the court’s decision.

Upon hearing of the ruling, John Lawrence said, “At least this nightmare brought some benefit for all of us in Texas. I am thankful and relieved that this horrible experience may finally be over.”

Lambda Cooperating Attorney Mitchell Katine, an attorney with the Houston law firm Williams, Birnberg & Anderson, added, “At last, lesbian and gay Texans are free from the indignity of this law.”

The appellate court’s decision now leaves only three states – Arkansas, Kansas and Oklahoma – with laws prohibiting consensual sex acts only between same-sex partners. Twelve more states have sodomy laws that apply to both gay and non-gay couples.

Lambda currently represents the plaintiffs challenging the Arkansas law, and also is assisting in a lawsuit to overturn the sodomy law in Louisiana. In 1998, Lambda helped overturn the state sodomy law in Georgia.

Lambda will open a regional office in Dallas in 2002, adding to its regional offices in Los Angeles, Chicago, and Atlanta, and New York City headquarters. Founded in 1973, Lambda is the nation’s oldest and largest legal organization serving lesbians, gay men, and people with HIV/AIDS.

(Lawrence and Garner v. Texas, Nos. 14-99-00111-CR & 14-99-00109-CR)

Contact: Peg Byron 212-809-8585 x 230, 888-987-1984 (pager)
Suzanne Goldberg 212-809-8585 x 214
Ruth E. Harlow 212-809-8585 x 210


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