Appeals court upholds state sodomy ban Panel overrules gay-rights issue By MARY FLOOD Copyright 2001 Houston Chronicle An appellate court Thursday resurrected the state's sodomy law, upholding a ban challenged by two Houston men who were arrested in 1998 for having sex together. In a 7-2 decision, the all-Republican 14th Court of Appeals ruled that a Texas law banning anal and oral sex between homosexuals does not violate any constitutional provisions guaranteeing equal rights or privacy. This law is rarely enforced and is one of the few remaining sodomy bans in the country. The law does not apply to heterosexuals. The decision reversed a ruling by a smaller panel of the same court, which in June declared the law unconstitutional. Thursday's decision is legally binding only for the 14-county area that makes up the 14th Court of Appeals region, which includes Harris County. But this Houston-based court is one of the premier intermediate appellate courts in the state and is often looked to for legal guidance. J. Harvey Hudson wrote the majority opinion and deferred to the Legislature's ability to make and change laws. "Certainly, the modern trend has been to decriminalize many forms of consensual sexual conduct even when such behavior is widely perceived to be destructive and immoral," Hudson wrote. "Our concern, however, cannot be with cultural trends and political movements because these can have no place in our decision without usurping the role of the Legislature." The opinion says the Legislature is free to base statutes on public morality and in this case there is a legitimate state interest in criminalizing sodomy by homosexuals, even while allowing heterosexuals to engage in the same act without reprisal. Bill Delmore, appellate division chief of the Harris County District Attorney's office who argued the case, said his goal was to preserve the existing law and the people's ability to have the Legislature pass bills based on the prevailing morals. "But if the Legislature chose to repeal this statute tomorrow, I don't think most prosecutors would lose a bit of sleep over it," he said of the almost-never used misdemeanor charge. This case has been politically hot. Gay rights activists are hoping to use it to overturn Texas law. Conservative politicos are worried that if overturned, it could lead Texas on the path to approving same-sex marriage. The two dissenting judges Thursday were the same two who found the law unconstitutional in the 2-to-1 June decision that said the sodomy law violated the equal-rights protection of the state constitution. Republicans John S. Anderson, who was re-elected in November, and Paul Murphy, the chief justice who recently announced his retirement, found themselves publicly ridiculed by their own party for that earlier decision. In its state platform, the Republican Party asked voters to defeat the pair and wanted the sodomy law reinstated. The Harris County Republican Party even drafted a letter it later abandoned that asked Republicans in other counties to help defeat the pair. The court opinion said politics had no role with the outcome. Others, including longtime gay activist Ray Hill, disagree. Hill said Republican pressure did exist and called it "unabashed blackmail." South Texas College of Law professor Neil McCabe thinks reason exists to question the opinion. "The general public is entitled to be skeptical of the court's claim that it resisted political pressure when it did exactly what the Republican Party demanded it do," said McCabe. McCabe stressed that he has no idea whether politics actually played a role. Gary Polland, Harris County Republican Party chairman, said he thinks this all-Republican court voted as it would have without any of the political discourse. Ruth E. Harlow, legal director for the Lambda Defense and Education Fund, a New York-based gay rights group, argued the case and pledges to appeal Thursday's decision. "The government does not belong in people's bedrooms policing consensual adult intimacy," she said. "Nor can it have one rule for gay people and another one, granting more freedom, for non-gay people." This case stems from the September 1998 Harris County arrest of John Geddes Lawrence and Tyrone Garner, who were having sex in a private home. Sheriff's deputies entered the apartment after another man falsely reported that an armed intruder was in the home. The two men were arrested for sodomy and held in jail overnight. Both pleaded no contest and were fined $200 each on the Class C misdemeanor charge. Texas is one of 16 states that outlaws sodomy and one of only four that make it a crime only for homosexuals, according to a tally by Harlow's group. Houston attorney Mitchell Katine, who represents Lawrence and Garner, said they will now appeal this case to the Texas Court of Criminal Appeals, which has discretion on whether it will hear the case. Legal opinions vary widely on whether the high criminal court, which has come under fire nationally for some of its capital murder opinions, will take the controversial case. The next stop would be the U.S. Supreme Court, where a hearing would also be discretionary and also not out of the realm of possibility should the nation's highest court decide to clarify either privacy law or equal protection law. State Rep. Debra Danburg, D-Houston, said she's trying for the fifth time to get the Legislature to overturn the Texas sodomy law. The ban is more than 100 years old, though heterosexual sodomy was just made legal in 1973. "It'll be tough," she said, since many legislators tell her they agree the law should be taken off the books but can't afford politically to vote that way. "The time this law is really enforced is not in criminal cases," she said. "It's when a gay person applies to rent an apartment and is asked whether they participate in criminal behavior and they have to lie to get an apartment," she said, noting similar questions are on job applications and other forms. ------------------ Houston Sports Board Help Finance My Movie - Buy A T-Shirt or Make a Donation
Awesome! I was tired of just seeing Utah and SC on the "silly state" section of CNN. ------------------ (===)
can't say i'm surprised...oh well, i guess this means that my nickname is appropriate again... ------------------
Now, here is a TERRIFIC example of wasted government spending - the attempt to police bedroom behavior. Did someone say "big government?" ------------------ The Walrus was Paul.
I'll bet this could actually help the gay rights groups in the long run. They may end up thanking the appeals court. There could not be a more clean cut case come up. No drugs or any type of 'real' criminal activity involved, and two people without criminal records. The individuals were in the privacy of their home, and were only discovered after a legal entry into their apartment for a completely unrelated reason. This is the perfect case for an appeal to the US Supreme Court, which would likely overturn the law not just in a 14 county appeals court jourisdiction, but in all 16 states with this type of law. ------------------ Stay Cool...
I think the court of appeals ruled correctly. The article's "all-Republican" comment notwithstanding, they made the correct legal call. The statute is clear. And the Supreme Court has addressed these types of laws in the past and found that they didn't violate the constitution. Its a stupid law. A very stupid and discriminatory law with no real purpose in today's society. But the legislature, as lawmaker and representative of the people, needs to be the one to step up and change it. ------------------
Jeff, while it is a silly law, and should not be illegal, I don't think the goverment is spending any money on "policiing the bedroom." As I recall, the incident in question was a result of another investigation that caught the two men in said act, and then charged them. There is no way the goverment could get away with, or justify, spending money attempting to monitor bedroom behavior with the intent to ban certain practices. ------------------ "all your base are belong to us!" "you have no chance to survive make your time!"
if the Supreme Court even bothers to hear this case it will probably lose 5-4 with Rehnquest, Scalia, Thomas, Kennedy and O'Connor ruling in favor of the state law (since they care so much about state's rights!) ------------------
The legislature makes the laws. They are elected to represent the will of the people. While I would never support such a discriminatory law as this, I would have to agree that the court made the right decision. It would undermine the entire democratic process if the minority was allowed to get what they wanted against the majorities wishes by complaining to the judiciary. Instead of appealing to the supreme court, they should try to get people elected that will change the law, or move to one of the 30+ states that do not outlaw the behavior. ------------------ "We messed with the Bull, and we got the horns." -- Larry Brown "quote" from AirBullard.com [This message has been edited by Hydra (edited March 16, 2001).]
What part of the constitution talks about freedom of sexual practices. BTW I like how you broke out those Green Day lyrics. I too think that the law should be overturned, I just think there is a better way to go about doing it. Too often people confuse what is wrong wih what is unconstitutional. Admittedly I do not know if there is a provision for soddomy in the constitution, but since SamCassell said that the laws were found in keeping with the constitution before I think that he is probably not lying. Anyway, Green Day rocks and so do you for standing up for your viewpoint. Why not go the legislative route is all I was sayin'. ------------------ "We messed with the Bull, and we got the horns." -- Larry Brown "quote" from AirBullard.com
Sheesh Maybe homosexuality should claim Religion Status . . . . Would allow them more freedom . . . maybe Then again . . .we have Freedom of Religion NOT FREEDOM TO PRACTICE This is indeed a silly law . .and IMO a waste of the time of KKKOPS I mean . .. their is a shipley's somewhere without a SINGLE CUSTOMER IN IT!>?!?!?! Rocket River ------------------
Since the sodomy laws target one group (homosexuals. Hetereosexual sodomy is apparently not illegal), the laws would seem to violate the Equal Protection Clause. In a way, it would be no different than making a law that said African-Americans can't do the nasty without violating the law. The Courts would be quick to strike down that example, though, on equal protection grounds, probably. ------------------ Houston Sports Board Help Finance My Movie - Buy A T-Shirt or Make a Donation
mrpaige, the Equal Protection clause of the 14th amendment doesn't protect every group the same. Race-based and sex-based laws are more suspect and are held to a much higher degree of scrutiny than laws that discriminate on the basis of sexual orientation/preference. Anyway, Bowers v. Hardwick (the 1986 US Supreme Court case) was decided on the basis of a Due Process challenge, not an Equal Protection one. And it hasn't been overruled. The Texas statute hasn't been held unconstitutional. And you're not going to see a Texas appellate court here come out and say that it is, since you're just asking to get reversed by the Texas Court of Criminal Appeals. Even if the Houston court had decided that it thought the law was unconstitutional, that wouldn't have been a binding decision on trial courts in any other part of the state. Rocket River's right in that the cops shouldn't enforce it, or for that matter the DAs shouldn't prosecute it, assuming they have discretion. They almost always avoid the subject. In fact, I wouldn't be surprised if the defendants wanted to get prosecuted, in order to challenge the law. In a way its a good thing, because it brings publicity and debate to a ridiculous statute. Hopefully that will result in citizens putting pressure on the legislature to change it. ------------------
I pointing out a potential Constitutional issue to counter the idea that the Consitutution has to say something about sodomy for the Courts to be able to decide whether sodomy laws are legal or not. I wasn't making a judgement as to whether said sodomy laws do actually violate the 14th Amendment (which is why I used the phrases "seem to" and "in a way"). ------------------ Houston Sports Board Help Finance My Movie - Buy A T-Shirt or Make a Donation
Oh. My fault. I was just trying to convey some useful information, and was inspired by your prior mention of cases to do a little research. You are of course absolutely right that laws governing private sexual conduct, like abortion or campaign finance reform, can be challenged on constitutional grounds despite not being specifically mentioned in the constitution. If I was more awake I might have realized that was your point. ------------------
Don't blame yourself. People often have trouble finding the point of things I post. I'm pretty sure it's me. ------------------ Houston Sports Board Help Finance My Movie - Buy A T-Shirt or Make a Donation
I don't know about O'Connor. She's often pretty middle-of-the-road and hasn't shown a tendancy to invoke state's rights in most cases. And both Kennedy and O'Connor voted to strike down Colorado's Amendment 2 back in 1996. While O'Connor did vote with the majority in 1986 when the Court upheld sodomy laws, some have said she's become more open to gay rights since then. (Anothony Kennedy wasn't on the Court at the time that decision was handed down). I'm not saying that the sodomy law wouldn't be upheld by the Supreme Court. I'm just saying that if the case did make it to the Supreme Court, there's really no concrete way to know how the court would decide. ------------------ Houston Sports Board Help Finance My Movie - Buy A T-Shirt or Make a Donation
so should we reverse Brown v. Board of Education? yes the legislature makes the laws but the judiciary is there to make sure the law isn't unconstitutional. it's part of the checks and balances of our government. it doesn't undermine the democratic process, it is part of it. what's right isn't always popular and what's popular isn't always right. ------------------ I wanna be the minority I don't need your authority Down with the moral majority Cause I wanna be the minority [This message has been edited by outlaw (edited March 16, 2001).]
The Chronicel responds: Equal Protection: Time for Texas to let go of archaic anti-sodomy law An appellate court has reactivated Texas' sodomy law by reversing a ruling by a smaller panel of the same court that managed to understand that it is a violation of the Constitution's equal protection clause when laws apply differently to different groups of people. The 14th Court of Appeals, whose members all are Republicans, took up the case under pressure from some Republican Party activists. A three-judge panel of the same court had ruled in June that the sodomy law violated the Texas Constitution's Equal Rights Amendment. The case stems from the arrest in 1998 of two Houston men for having sex. In reviewing the earlier decision, the full court ruled 7-2 that the Texas law barring certain sex acts between homosexuals does not violate equal rights provisions, even though the law does not apply to heterosexuals. This decision is legally binding on the 14-county area, including Harris, over which the 14th Court of Appeals has jurisdiction. In a stunning display of weak argument, Justice J. Harvey Hudson said the court's decision came of its unwillingness to "[usurp] the role of the Legislature." Hudson should remember that his job as a judge is to exert himself when the Legislature writes laws contrary to the Constitution. The fact that he wrote in the opinion that homosexual sex is "widely perceived to be destructive and immoral" is evidence of the judge's personal view, as such intimate encounters also are widely perceived in our society to be no one else's business. Lawyers for the two men plan to appeal the case to the Texas Court of Criminal Appeals, which may decide not to hear it. The next step would be the U.S. Supreme Court, which also may decide not to take it up. State lawmakers could make this costly court battle unnecessary by passing legislation by State Rep. Debra Danburg, D-Houston, to overturn Texas' archaic sodomy law, a continuing embarrassment to this great state. Very well said, IMO. ------------------ "I swallowed a lot of agression...along with a lot of pizzas."
