Court asked to review Texas case

Lambda Legal appeals convictions of two men found in violation of state's `homosexual conduct' law

[DALLAS, TX] - A gay-rights legal group this week filed papers asking the U.S. Supreme Court to review the case of two men convicted of violating the Texas "homosexual conduct" law, saying the statute violates constitutional guarantees of privacy and equal treatment.

If the high court grants the petition to overturn Texas' law against private, consensual gay sex, the Harris County district attorney's office will represent the state in the appeal.

Harris County DA Chuck Rosenthal and state Attorney General John Cornyn reportedly had disagreed over whose office should defend the appeal, with each contending the other must represent the state in support of the law.

However, Harris County prosecutor Bill Delmore, who argued the underlying case before a Houston appeals court, said Rosenthal and Cornyn, the Republican nominee for a U.S. Senate seat, decided Tuesday that the DA's office would take the case.

The prosecution has 30 days in which to file a brief asking the Supreme Court to refuse to hear the appeal, Delmore explained. The case involves the criminal convictions of two Houston men whom police arrested while having sex in a private home. Delmore said the Harris County DA's office hasn't decided whether to respond to the petition filed by Lambda Legal Defense and Education Fund or simply let the court decide based on Lambda's 47-page petition.

"I don't know if I have that much to add to the debate," said Delmore, who conceded at oral argument before the 14th Court of Appeals in Houston that there is no compelling government justification for the statute.

The DA's office didn't object to Lambda's request in 2001 that the Texas Court of Criminal Appeals consider an appeal of the case. However, in April, the court refused, without explanation, to hear the appeal of John G. Lawrence, 58, and Tyron Garner, 33.

The pair were arrested Sept. 17, 1998, after sheriff's deputies entered Lawrence's apartment to investigate a false report of a "weapons disturbance." The officers observed Lawrence and Garner having sex, and the men were arrested charged with violating Section 21.06 of the state penal code.

The statute forbids oral or anal sex between members of the same gender. It does not criminalize the same acts when the participants are of the opposite sex, whether married or not. Violations are a Class C misdemeanor punishable by a fine not exceeding $500.

"The Texas statute invades consensual, adult intimacy that is an integral part of forming and nurturing long-term relationships," says Lambda's petition to the Supreme Court. "It pries into the home; and it regulates at the uniquely intrusive level of how chosen partners physically express their affections for one another."

Accordingly, the law violates the rights of equal treatment, privacy and liberty guaranteed by the U.S. Constitution, explains the petition submitted by Lambda lawyers Ruth E. Harlow, Patricia M. Logue and Susan L. Sommer; Paul M. Smith, William M. Hohengarten and Daniel Mach of Jenner & Block, LLC, a Washington, D.C. law firm; and Houston attorney, Mitchell Katine, who has represented the defendants since their arrests.

Otherwise, "deviate sexual intercourse," as described by the Texas penal code, is criminalized if it is without consent, in exchange for money or with a minor.

The law also "imposes a discriminatory prohibition on all gay and lesbian couples, requiring them to limit their expressions of affection in ways that heterosexual couples , whether married or unmarried, do not," the petition says.

"That discriminatory criminalization tears at gay relationships and stigmatizes loving behavior that others can engage in without the brand of `lawbreaker,'" it adds.

"The law sends a powerful signal from the State condemning homosexuals," the petition states. "Not surprisingly, then, it is used to justify discrimination against gay men and lesbians in parenting, employment, access to civil rights law, and many other aspects of everyday life."

Lawrence and Garner pleaded no contest to the charge and were fined $200 each. A three-judge panel of the 14th Court of Appeals reversed their convictions, finding the law unconstitutional, but after the state asked the full, nine-member court to hear the appeal, seven judges rejected their constitutional challenge and reinstated their convictions.

Their convictions mean they will be prevented from practicing dozens of professions in Texas, from physician to athletic trainer to bus driver, their lawyers said, and in four states - Idaho, Louisiana, Mississippi and South Carolina - they would be forced to register as sex offenders.

Lambda's petition also asks the Supreme Court to overrule its 1986 decision in Bowers v. Hardwick, which upheld Georgia's ban on sodomy and permitted the states to regulate private, consensual same-gender sex.

In addition to Texas, three other states - Kansas, Oklahoma and Missouri - have laws against private, consensual gay sex. Ten states forbid all acts of sodomy, regardless of the gender of participants. It will take the vote of four justices for the Supreme Court to agree to hear the appeal, explained Lee Taft, Lambda's regional director in Dallas. However, he said, a decision probably will be delayed by the court's summer recess.

Taft also praised the thoroughness of the petition submitted by the attorneys.

"It is an eloquent and compelling legal document," said Taft. "I wish every LGBT person in Texas could read this because it shows where we've been, how far we've come and where we're headed in the fight for our civil rights.