# Supreme Court hears challenge to Texas Sodomy Ban **URL:** \ **Category:** Great Debates\ **Created:** [March 26, 2003, 9:03pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368 "2003-03-26T21:03:59Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![rsa](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rsa](https://boards.straightdope.com/u/rsa)\ **Post date:** [March 27, 2003, 4:09pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/61 "2003-03-27T16:09:06Z")
> [@](#): > > \*Originally posted by minty green \* > (Opposite sex couples already cannot be charged with sodomy in ordinary circumstances, even where state sodomy law applies to both heterosexual and homosexual conduct, because the courts have recognized a Due Process right to procreate yourselves silly without the interference of the state.) Not really on topic, but can you explain what sodomy has to do with procreation? 😕 ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [March 27, 2003, 4:30pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/62 "2003-03-27T16:30:32Z")
> [@](#): > > _Originally posted by Dewey Cheatum Undhow_ > **Do you think, even in a conservative state like Texas, that in this day and age an act criminalizing such conduct could pass? I’m not sure it would. Let’s face it: inertia keeps a lot of these laws on the books – they are very old, rarely enforced, and thus not in the forefront of people’s minds. Putting that law on the books anew is a whole 'nother ball of wax.** **Dewey** I think you underestimate the ability of the Texas legislature to pass stupid laws. The history of this particular law is that Texas has had a law against Sodomy since the 1800’s. However, the law was changed in 1973 and again in **1993**. I’m not sure what piece was revised in '93, but the fact that it wasn’t repealed at that time shows that homophobia was alive and well in the Texas legislature less than a decade ago. This puts Texas in a different category than those other states where sodomy laws are 100+ years old, rarely enforced and never come to mind. This law came to mind less than ten years ago in the minds of the very people who could have repealed it. They made some sort of change to it(I wasn’t able to find out what), but they did NOT repeal it. > [@](#): > > _Originally posted by minty green_ > \*\*No, because such a law[making it illegal to eat bananas, to jerk off, or to sleep on your back] would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid. > > [Okay, actually I have no idea whether such laws would withstand judicial scrutiny under the Due Process clause. But I do want to point out that their constitutional validity would be eminently questionable.]\*\* Heh, we don’t seem to share the same optimism regarding the ability of legislators to pass arbitrary, unreasonable, and downright stupid laws. Enjoy, Steven ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2003, 5:23pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/63 "2003-03-27T17:23:54Z")
I had posted in an earlier thread about this case, and, oddly enough, I was in agreement with most of the lawyers here who think that the Texas Sodomy Law will pass constitutional muster under the Due Process Clause, but fail under the Equal Protection. Others before me have outlined my reasoning very well, so I won’t repeat them. However, it may be wishful thinking. However, I am a bit taken aback by **Dewey’s** response to **Gorsnak** question regarding attacking the Texas statute under a gender-based arguement. To say it is a weak argument is silly. To find the law unconstitutional under the Equal Protection clause, SCOTUS will have to rely on the rational basis test and not a “fair and substantial relationship to important governmental objectives” test that comes with a gender-based analysis. The Texas sodomy law does not discriminate on the basis of gender. It’s that simple. Males and females are treated the same under the statute. The gay man and the lesbian are treated equally and the heterosexual man and the heterosexual woman are treated equally. The false comparison made by **Grosnak** that a woman who fellates a man and a man who fellates a man are treated different may work on a basic, intuitive level, but it holds no legal weight. The fact is that the law is not gender based. Even if SCOTUS was to reach and apply the analysis in _Loving_, they will not find that the law is gender based in effect or treatment. It isn’t going to fly. Of course, this is all my little old opinion, but I would be really really really really really surprised if they find this law gets tested as a gender based law. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 5:47pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/64 "2003-03-27T17:47:25Z")
> [@](#): > > \*Originally posted by Mtgman \* > **Dewey I think you underestimate the ability of the Texas legislature to pass stupid laws. The history of this particular law is that Texas has had a law against Sodomy since the 1800’s. However, the law was changed in 1973 and again in 1993. I’m not sure what piece was revised in '93, but the fact that it wasn’t repealed at that time shows that homophobia was alive and well in the Texas legislature less than a decade ago.** Not necessarily. The text **mtgman** is referring to appears at the bottom of the statute and relates its history, reading: > [@](#): > > Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. The trouble is, that same reference to Section 1.01 of Chapter 900 of the acts of the 73rd legislature appears throughout the Penal Code – that exact same reference appears, for example, in the definition of murder, the definition of assault, and the definition of theft. That leads me to believe that the act in question didn’t deal specifically with the homosexuality statute – it likely was a simple re-organization of the Texas Penal Code. Now, granted, that’s just my gut instinct. The Texas Lege site only carries bills dating to 1995, so unless someone with LEXIS access wants to pull the referenced bill, it’s all speculation. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2003, 5:51pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/65 "2003-03-27T17:51:22Z")
I just finished checking out the appellate briefs on this issue, and it appears that even Lawrence (the gay man challenging the case) did not even raise the issue, except in a footnote. In addition, the argument was rejected by the Texas Court. Instead of being really really really really really surprised, I’ll go so far to say that if SCOTUS finds this statute to be subject to gender based analysis, I will personally write a 10 page legal analysis paper for anyone who posts in this thread. Any topic they wish. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 27, 2003, 5:54pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/66 "2003-03-27T17:54:43Z")
caveat: by SCOTUS, I, of course, mean the majority. Of course, I just realized who would want a 10 page legal analysis paper from me if I’m wrong when I’m so convinced I’m right. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 5:58pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/67 "2003-03-27T17:58:22Z")
Actually, I can confirm the 1993 Act was just a re-enactment of the entire Penal Code: [Respondent’s Brief](http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.pet.pdf) (Warning: PDF) at Footnote 3 indicates as much. Actually, pages 4-8 and their accompanying footnotes give a pretty good history of the Texas law, for those who are interested. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [March 27, 2003, 6:02pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/68 "2003-03-27T18:02:37Z")
**Dewey** at some point, probably in either '73 or '93, the law was changed from an outright ban on sodomy, the original form of which dated from the 1800s, to the current form which only outlaws it in an explicit “homosexual” context. That the law wasn’t repealed completely in either '73 or '93, or whenever else it was before the Texas legislature shows that this isn’t just some legacy of homophobia left to us by our great-great-great grandfathers over a century ago. The penal code was reviewed, that’s what the notes indicate, in '73 and in '93. Perhaps this statute wasn’t given much attention, but it certainly was up for review at those times. I guess it could be that they were re-formulating definitions and tweaking some specific laws and this statue wasn’t ever on the table for debate. Still it is documented that Texas did somethign few states did and changed its age-old anti-sodomy law to a anti-sodomy law which only applies in a homosexual context. This did NOT happen 100+ years ago. Someone with LEXIS access could settle this, but I don’t have it. ☹ Enjoy, Steven ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 6:04pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/69 "2003-03-27T18:04:43Z")
Oh, and another thing **mtgman** : that history indicates that the law against homosexuality was passed in 1973 _when Texas was decriminalizing other sexual activity_. IOW, anal sex was illegal for heterosexuals and homosexuals alike prior to 1973 and the Texas Lege took affirmative steps to change that. Were the current law to fail on EP grounds, are you seriously saying that the Texas Lege would basically re-enact the law they explicitly rejected in 1973? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 6:32pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/70 "2003-03-27T18:32:58Z")
> [@](#): > > \*Originally posted by Hamlet \* > \*\*The Texas sodomy law does not discriminate on the basis of gender. It’s that simple. Males and females are treated the same under the statute. \*\* While I share your suspicion of this line of argument, I must point out that the language of the California statutory rape law (which has since changed) was gender-neutral, too – neither men nor women could engage in sexual intercourse with an underage female. The court seemed to blithely assume that only a male could engage in sexual intercourse with a female (I’ve poked around the [California Penal Code](http://caselaw.lp.findlaw.com/cacodes/pen.html) and can’t seem to find a definition of that term, so I figure it must be an unstated assumption of the court), but that of course does not change the statutory language. At any rate, it doesn’t matter – the hinge upon which the case turns is whether the state is purusing a “legitimate state interest,” an element of both rational basis and heightened scrutiny analysis. If we assume a legitimate interest, I don’t think anyone can seriously argue that the law isn’t “fairly and substantially” related to that interest. If the state is pursuing a legitimate interest here, then the law would survive _both_ rational basis _and_ heightened scrutiny analysis. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 27, 2003, 6:36pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/71 "2003-03-27T18:36:16Z")
I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court. If that were true, would it have any effect on the judgement? Is there such a thing as ruling that the defendents wanted to be arrested, so they consented to the arrest? As I say, this is only something I vaguely remember, so I may be doing the defendants an injustice. Regards, Shodan ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 6:47pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/72 "2003-03-27T18:47:59Z")
> [@](#): > > \*Originally posted by Shodan \* > \*\*I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court. \*\* This would not surprise me in the slightest. It’s reasonably well-established, IIRC, that the arrest leading to _Griswold v. Connecticut_ was an engineered affair, mostly concocted by a couple of Yale law professors to see if they could create a constitutional right. Granted, that may be a legal urban legend, but I’ve heard it from enough different places that I think it’s probably true. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 27, 2003, 6:51pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/73 "2003-03-27T18:51:32Z")
Maybe _Griswold_ is the case I am remembering. Does it make any difference in the courts? In some sense that says, “We are hardly interfering with your right to perform sodomy on each other if you have to go to so much trouble to get arrested for it. You actively sought arrest, so you could be understood to be waiving your right to sodomy.” Or classify it as “sodomy in furtherance of filing a false report”, or something like that. IANAL. Regards, Shodan ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 6:53pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/74 "2003-03-27T18:53:58Z")
Here’s at least one reference to _Griswold_’s manufacture in a [law school casebook](http://www.radford.edu/~mfranck/images/439casebook/griswold.pdf). I would also note that the plaintiff, Estelle Griswold, was the executive director of the Planned Parenthood League of Connecticut, which makes the arrest a wee bit suspicious as well. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 6:58pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/75 "2003-03-27T18:58:57Z")
> [@](#): > > \*Originally posted by Shodan \* > \*\*Maybe _Griswold_ is the case I am remembering. > > Does it make any difference in the courts? In some sense that says, “We are hardly interfering with your right to perform sodomy on each other if you have to go to so much trouble to get arrested for it. You actively sought arrest, so you could be understood to be waiving your right to sodomy.” \*\* No, because so long as actual charges are brought, the plaintiff does indeed face legal jeopardy. Bert the cop may not have arrested you and Bob the prosecutor may not have prosecuted you in the ordinary course, but once they have (even if it’s because you asked them to), they’ve put legal machinery into motion that can’t just be stopped. If the plaintiff in this case fails in having the law declared unconstitutional, he’ll face the legal penalty for his act – even if he’s the only one to face that penalty in ages because of the lack of enforcement. \*\* > [@](#): > > Or classify it as “sodomy in furtherance of filing a false report”, or something like that. \*\* But the arrest report isn’t false. No one contests that the parties were indeed engaged in the act of sodomy. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [March 27, 2003, 7:07pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/76 "2003-03-27T19:07:11Z")
> [@](#): > > I may be confused, but I thought I heard somewhere that this case was a set up - that the two people arrested arranged for a neighbor to make a false report of a man with a gun so the police would break in, and timed their (ahem) activities to coincide with the arrival of the police. Their intent was to get a case to bring to the Supreme Court. This is exactly what happened; both petitioners’ and respondent’s briefs essentially acknowledge it. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [March 27, 2003, 7:11pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/77 "2003-03-27T19:11:13Z")
I don’t know if _Lawrence_ was a set-up, but the person who called the police has been convicted of filing a false report. (Petitioner’s [Brief](http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.pet.pdf) on the Merits, n.1, p. 2.) The State’s brief describes the facts leading to police involvement as > [@](#): > > A citizen informed Harris County sheriff ’s deputies that an armed man was “going crazy” in the apartment of petitioner Lawrence. Pet. App. 129a. The investigating officers entered the apartment and observed the petitioners engaged in anal sexual intercourse. Id. They were then charged by complaint in a Harris County justice court with the commission of the Class C misdemeanor offense of engaging in homosexual conduct, … (Respondent’s [Brief](http://supreme.lp.findlaw.com/supreme_court/briefs/02-102/02-102.mer.resp.pdf) on the Merits, p. 1) ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 7:29pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/78 "2003-03-27T19:29:26Z")
> [@](#): > > \*Originally posted by Shodan \* > This sounds very much like you are arguing in favor of ‘original intent’. The Founding Fathers meant for the Ninth Amendment to mean such and such, therefore that is what it does mean. > > Is that what you are saying? More or less. The goal of statutory and constitutional interpretation is _always_ to give effect to the “legislative intent.” Ordinarily, that inquiry starts and ends with the plain language of the provision. In this case, the plain language states exactly what I described above. If, on the other hand, the language is ambiguous–such as “equal protection” and “due process,” which can mean almost anything–then it is appropriate to determine that legislative intent by other means, including legislative history, historical analysis, etc. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 7:37pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/79 "2003-03-27T19:37:17Z")
> [@](#): > > \*Originally posted by rsa \* > Not really on topic, but can you explain what sodomy has to do with procreation? 😕 Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals. Because the state can’t go there, it can’t charge anyone with consensual heterosexual sodomy. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [March 27, 2003, 7:53pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/80 "2003-03-27T19:53:01Z")
The 63rd Texas State Legislature(1973)(thanks for the clarification on the acts of the 73rd('93)) did NOT explicity reject a ban on sodomy. They rejected a ban on sodomy for heterosexuals. To my knowledge they have never been faced with the decision to make sodomy illegal for all or make it legal for all. To claim that they’ve already made this decision is disingenous. They may or may not decide that sodomy for all is better than sodomy for none. It will depend on how heinous they view heterosexual deviant sexual behavior(as the language of the bill puts it). If they see it as a big enough danger to public morality that they’re willing to sacrifice the freedoms they granted a subset of the citizens in '73(the heterosexual subset) in order to keep it illegal for the homosexual subset. My personal feeling is that, if forced to make this decision by a mandate from the SCotUS based upon equal protection grounds, the state legislature will simply repeal the whole thing. BUT, I’m not putting money on it. This is a pretty puritanical state. As to speculation on if this case was a setup to build a constitutional challenge to this statute… I don’t know. Some of the reading I’ve done on the case(search my posts in prior threads about this topic for more info\*\*) indicates that at least one of these men was closeted at the time of the arrest. The law firm which is representing them, I forget the name but I researched them in an earlier thread, specializes in challenging this type of litigation. After they were found guilty it seems that someone from the firm decided they would be a great case to build a constitutional challenge on and approached them with the proposal to appeal the case all the way to the supreme court. I don’t think these men themselves were the impetus of this challenge(so I don’t think it was a setup from the first), but I do think it is certainly being used by activist groups to advance their cause. The men seem willing to have their case become the poster child for this effort, but that’s not necessarially an indication of a conspiracy from the start. Enjoy, Steven [Previous page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=3) [Next page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=5)