A rchive Date
[ 09-06-2000 ]
Category
[ International Relations ]
sub-Categoy
[ U.S ]
|
[Texas' sodomy law overturned
Appeals court tosses '98 case against 2 gay men
By STEVE BREWER
Copyright 2000 Houston Chronicle
June 8, 2000, 9:40PM
"This is the biggest thing to happen since the repeal of the old sodomy statute in 1973," said local gay activist Ray Hill. "It's certainly going to liven up Gay Pride Week."
Harris County District Attorney John B. Holmes Jr. said his office will appeal, probably directly to the Texas Court of Criminal Appeals, the state's highest criminal court.
"What this is to me is a backdoor run at trying to get the judiciary to decide that mores have changed to the extent that we ought not to have this law," said Holmes.
He said legislators should make such decisions, but that rulings like this give them a way "out from under a controversial issue."
Attorneys for John Geddes Lawrence, 57, and Tyrone Garner, 33, celebrated the decision and said they welcome the chance to argue in Austin.
"The law is plainly unconstitutional. We're happy to see it struck down here," said Suzanne Goldberg, a lawyer with the Lambda Legal Defense and Education Fund Inc., a gay rights group that represented the men. "If we need to go further, we would certainly do that. The arguments do not change. There is absolutely no legitimate government interest in policing the bedrooms of adults simply because those adults are of the same sex."
Though the decision is significant, it technically applies only to the 14th Court of Appeals jurisdiction until the Texas Court of Criminal Appeals rules on it, said local appellate attorney Brian Wice. The state's 13 other appellate courts can rule any way they wish on the issue until then.
Wice said the case has always been destined to end up in the state's highest court, but it doesn't hurt that the majority's opinion was well-written and based on legal precedent.
"My take is that it's bulletproof," Wice said. "They cut to the chase, their reasoning is compelling and they shot more holes in the dissenting opinion than the feds put in John Dillinger."
In September 1998, acting on another man's false tip of an armed intruder, Harris County sheriff's deputies entered Lawrence's home and saw the men engaged in sex acts. They were arrested on charges of "deviant homosexual conduct."
They pleaded no contest so they could challenge the law on appeal, the first to come out of a state criminal court.
In November, their lawyers argued before the 14th appellate court panel, saying the law violates privacy rights and is unconstitutional because it "criminalizes" homosexual behavior.
Because the law singles out homosexuals, it violates equal protection clauses in the U.S. and Texas Constitutions, they argued.
But Assistant Harris County District Attorney Bill Delmore said nothing in the federal or state constitutions sanctions homosexual acts and since they have always been deemed inappropriate by Texas law, then enforcing the law does not violate privacy.
If moral standards change, he argued, the Legislature is the place to change the law, not the courts. Further, he said, the law does not single out gays, because it also applies to bisexuals or heterosexuals who engage in homosexual acts.
Two members of the panel, John S. Anderson and Chief Justice Paul Murphy, who are Republicans, sided with Garner and Lawrence.
Their ruling was based solely on the arguments that the law violated the state's Equal Rights Amendment. They did not address privacy issues or federal rights, which were also argued in November.
The opinion, written by Anderson, says the problem with the state's law can be traced back to 1973, when the Legislature abandoned the 114-year-old sodomy law banning certain sex acts between all people and adopted the new law, which banned them only for homosexuals.
That created two standards, Anderson wrote, and conflicts with the state Equal Rights Amendment because it equates to sex-based discrimination.
Anderson wrote that the law can allow sex-based discrimination when there is no other way to protect the state's interest, but that Delmore couldn't begin to frame an argument that there was a compelling state interest.
As for the argument that the law served a legitimate public purpose because it enforces conventional principles of morality, Anderson said: "It is not enough for the state to say it has an important interest furthered by the discriminatory law because even the loftiest goal does not justify sex-based discrimination in light of the ERA's clear prohibition."
In dissent, Justice J. Harvey Hudson, also a Republican, echoed Delmore. He said the law doesn't discriminate on the basis of sex because it's applicable to men and women who engage in homosexual acts.
"More importantly, the history of the Texas Equal Rights Amendment suggests the people of this state intended to grant to women the same rights as those already enjoyed by men, not to abolish criminal sanctions imposed for homosexual conduct," Hudson wrote.
Hudson also said that despite the "modern trend" to "decriminalize" all forms of consensual sexual conduct, the issue is best handled by legislators.
Mitchell Katine, a Houston lawyer who helped represent Lawrence and Garner, said if Hudson believes that women were granted equal rights by the Texas Constitution then those rights would apply to lesbians, who could be prosecuted under the conduct law. Katine said Hudson seems to dismiss the fact that laws can be challenged on constitutional grounds.
Holmes and Harris County Republican Party Chairman Gary Polland had a differing view. Each said Hudson's argument was sound and based on the law.
Both also said they were a bit surprised that the majority used the Equal Rights Amendment to overturn the law, because they felt the privacy argument was more compelling.
Even so, Polland said, "The place to debate this is the Legislature, not the courts."
But the courts have been the battleground in other states, where "sodomy laws" have been struck down in Tennessee, Georgia, Louisiana and Montana based on privacy issues. Similar laws in Kentucky and Maryland were stricken based on equal-protection grounds.
The law in Texas was rarely enforced. Arkansas, Oklahoma and Kansas still have laws outlawing homosexual behavior. Twelve states ban certain sex acts between same and different-sex partners.
 World Fact Book (CIA))]
|