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The fate of Texas’ 120-year-old homosexual conduct law could hinge on whether the Court of Criminal Appeals interprets the state’s Equal Rights Amendment based on its wording or its original intent. On June 8, Texas’ 14th Court of Appeals declared the sodomy law unconstitutional because it discriminates against individuals on the basis of their sex. The court threw out the convictions of two men arrested in a private home in 1998 for engaging in sex acts that are legal for heterosexual couples. In Lawrence and Garner v. State, a 2-1 decision, the Houston court said the Legislature changed the law in 1974 to make it legal for members of the opposite sex to engage in oral or anal sex but continued the prohibition for homosexual couples to engage in the same acts. The court held that, in the absence of any showing by the state of a compelling interest justifying the sex-based discrimination, the law violates the state ERA’s guarantee of equality under the law. “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,” Justice John S. Anderson wrote in the majority opinion. He was joined by Chief Justice Paul C. Murphy. An attorney for John Geddes Lawrence and Tyrone Garner, the two men whose convictions for sodomy were overturned, praises the ruling and says it was “a well-reasoned decision that tracks the law” and should be upheld on appeal. “The ruling is terrifically important because the court recognized that the state can’t have a special rule for policing the bedrooms of same-sex couples,” says Suzanne Goldberg, a lawyer with the Lambda Legal Defense and Education Fund, a gay rights group that represented the men. “At last, lesbian and gay Texans are free from the indignity of this law,” says Lambda cooperating attorney Mitchell Katine, of Houston’s Williams, Birnberg & Anderson. THE STRONGEST ARGUMENT But Justice J. Harvey Hudson said in a dissenting opinion that the sodomy law doesn’t discriminate on account of gender. He also contended that the ERA was being interpreted in a way that was never intended when it was passed. “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. Rocky Rhodes, an appellate lawyer in Austin with Locke, Liddell and Sapp and an adjunct professor at Baylor Law School, says claiming discrimination under the state’s ERA was probably the strongest argument that could have been used to strike down a law banning same-sex partners from engaging in sodomy. But Rhodes adds, “I don’t believe the framers [of the ERA] thought this was a right they were guaranteeing.” Rhodes says many of the lawmakers who were in the Legislature when the state ERA was drafted and approved in 1972 probably were still there when the penal code was revised in 1974 to end the ban on sodomy for heterosexuals but not for homosexuals. However, Rhodes says neither way of interpreting the ERA — on the basis of its language or intent — can be considered wrong. And that “gives a lot of wiggle room to a judge to incorporate his own personal feelings in the ruling,” he says. Although the original intent of the ERA was to guarantee equal rights to women, it has been used in other ways in the past, Rhodes says. For example, the Texas Supreme Court cited the ERA in 1987 when it invalidated a law that had limited a father’s rights when a child is born out of wedlock. Opponents of the law still are likely to find it tougher to sell their argument to the CCA, according to Rhodes. “The Court of Criminal Appeals is a more conservative court,” he says. “They may not be as receptive to the argument as the 14th Court of Appeals was.” NEW LEGISLATION? This isn’t the first time the sodomy law has been ruled unconstitutional. The 3rd Court of Appeals in Austin invalidated the law in a 1992 case, but the Texas Supreme Court overturned the decision on the ground that a criminal law should not be addressed in a civil case. The latest case may get to the Court of Criminal Appeals sooner than expected. Bill Delmore, the Harris County assistant district attorney who defended the law before the Houston appeals court, says he is “leaning” toward appealing directly to the CCA rather than filing a motion for rehearing. Delmore says the 14th Court’s ruling applies only in its jurisdiction. “That’s the kind of issue the Court of Criminal Appeals should act quickly to resolve,” Delmore says. “To have conduct criminal in one jurisdiction but not in another is intolerable.” Delmore acknowledges that the sodomy law is used infrequently and says the Lawrence-Garner case is the only one in which he has been involved. “We don’t spend a lot of time enforcing the statute,” he says. “From that perspective, it’s not that big a deal. On the other hand, we have an obligation to defend the statute.” The law makes it a misdemeanor for same-sex partners to engage in sodomy. The offense is punishable by a $500 fine. Lambda’s Goldberg says Texas is one of only four states with a sodomy law affecting only same-sex couples. Twelve other states have laws that criminalize oral and anal sex between all consenting adults, she says. State Rep. Warren Chisum, R-Pampa, fought to keep the ban on gay sex on the books in Texas when the penal code was overhauled in 1993 and says he will renew his efforts if the Court of Criminal Appeals upholds the 14th Court’s ruling. Chisum says the House amended the penal code revision bill to prohibit both homosexuals and heterosexuals from engaging in sodomy but the amendment was dropped by a conference committee. He says he will consider introducing a similar proposal in the session next year. Notes Chisum, “We’ll do everything we can to reinstate the sodomy law once we get back into session.”

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