Texas pair to fight sodomy charges
Associated Press

HOUSTON — Sheriff’s deputies responding to a false report of an armed intruder inside an apartment caught two men having sex and arrested them, setting up a case that could bring an end to Texas’ rarely enforced, 119-year- old law against sodomy.

The law, modified by the 1993 Legislature, makes homosexual oral and anal sex a misdemeanor punishable by a fine of up to $500.

“There is a zone of privacy that’s been recognized by the U.S. Supreme Court,’’ insists David Jones, attorney for the two arrested men, now out on bond pending a court appearance. “It’s in their interest that we fight the sodomy law.’’

After receiving the false report Sept. 17, Harris County sheriff’s deputies entered the apartment through what they said was an open door and found the men having sex. One of the men lived in the apartment.
Tyrone Garner, 31, and John Geddes Lawrence, 55, cited for homosexual conduct and were jailed before being released on $200 bail.

The man who called police, Roger David Nance, pleaded no contest to filing a false report and served 15 days in jail.

As for why the phony call about an armed intruder was made to police, Jones said there was probably a “personality conflict between the caller and the people in the apartment.’’

“This was a private consensual act,’’ Jones said. “It was not, in our view, harmful either to the participants or to public health and it’s also discriminatory in that heterosexual conduct is not prosecuted.’’

There was no phone number for Garner and a call to Lawrence on Friday was not immediately returned to The Associated Press. There was no phone listing for Nance in Houston.

Activists and attorneys couldn’t cite another Texas case in which consenting adults were prosecuted for engaging in private sexual conduct.

District Attorney John B. Holmes Jr. said two or three sodomy cases had been prosecuted in Harris County over the last 30 years, but those involved homosexual contact witnessed by others in jail. None involved conduct in private.

Holmes insists that a law is a law, no matter how rarely enforced.

“Wouldn’t it be presumptuous if the district attorney said ‘I’m only going to prosecute the crimes I agree with,’?’’ Holmes said.

Gay activists have tried for years to have the sodomy law struck from the books, arguing that it is often used to justify anti-gay discrimination. But with no defendant in a criminal case, efforts to remove the law have met with mixed success.Activists said the latest case could sink the sodomy law.

“Obviously, that’s what we’re hoping,’’ said Clarence Bagby, president of the Houston Gay and Lesbian Political Caucus. “We’d love to see it move all the way up the ladder and be declared unconstitutional. We need to get this off the books.’’

Texas is one of six states that make consensual oral and anal sex between homosexual couples a crime, even if the sex takes place behind closed doors ina home.

Thirteen other states have sodomy laws banning such sex between heterosexual or homosexual couples.
The U.S. Supreme Court in 1986 upheld Georgia’s sodomy law as applied to its ban on consenting adults engaging in homosexual conduct.

The Georgia law had been challenged by a gay Atlanta bartender who was arrested in 1982 after being spotted having sex in his home. Prosecutors later dropped the charge.

The decision prompted gay rights advocates to file lawsuits in state courts arguing the laws violate state constitutions.

Many constitutions provide greater protection of privacy than the U.S. Constitution.Neil McCabe, a professor at South Texas College of Law, said the Texas law is unconstitutional.

“In these essentially private activities people are protected as part of a constitutional right of privacy,’’ McCabe said. “Our Texas courts have held there is a constitutional right to privacy.’’

In Louisiana, a civil trial challenging the state’s sodomy law began on Oct.26.