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Texas Sodomy Arrest Opens Legal Battle for Gay Rights

By Paul Duggan
The Washington Post
HOUSTON

Rarely does a police officer witness violations of Section 21.06 of the Texas criminal code, the section entitled "Homosexual conduct." And almost never is an arrest made under the 119-year-old statute. So what happened recently to John Lawrence and Tyrone Garner, in the supposed privacy of Lawrence's bedroom, was highly unusual.

The two men were having sex when a Harris County sheriff's deputy walked into the apartment on another matter, saw what they were doing and hauled them off to jail.

"In all candor, I don't believe we've ever made an arrest before under those circumstances," said Capt. Don McWilliams, a sheriff's spokesman. But the law is the law, he said. "We can't give our deputies a list of statutes we think they should enforce and a list of statutes we want them to ignore."

The handcuffing of Lawrence and Garner that night did more than just satisfy the deputy's obligation to enforce the law. It opened a new legal front in a long campaign by gay activists across the country to do away with such statutes, which they contend are unconstitutional.

Georgia's highest court issued a ruling last week that struck down that state's law against consensual sodomy, but statutes prohibiting the practice remain on the books in Puerto Rico and 19 states. Five of the states, including Texas, limit the ban to same-sex couples. Now lawyers have seized on the Houston case as a vehicle to again contest the legitimacy of the Texas statute, which has survived three legal challenges since the early 1980s.

Among similar court challenges in four other states and in Puerto Rico, four are lawsuits. Only two cases, in Minnesota and now Texas, stem from criminal charges. And as gay activists see it, no case more vividly illustrates the threat such laws pose to privacy than the Sept. 17 arrests of Lawrence and Garner.

Answering what turned out to be a bogus report of a man behaving erratically with a gun, Deputy Joseph Quinn arrived at an apartment building east of Houston about 10:30 p.m. and met Roger Nance, 41, who had phoned in the complaint, authorities said.

Nance directed Quinn to apartment No. 833, Lawrence's apartment. The deputy entered through the unlocked door with his weapon drawn. After finding no one with a gun, Quinn later wrote in his report, he "observed [Lawrence] engaged in deviate sexual conduct, namely, anal sex, with another man." Lawrence, 55, and Garner, 31, spent the rest of the night behind bars before each was let out on $200 bail.

Nance's false report, for which he served 15 days in jail, stemmed from "a personality dispute" between him and the two men, the sheriff's department said.

Lawrence and Garner pleaded no contest earlier this month to violating the anti-sodomy statute and were fined $125 each by a justice of the peace. Now the stage is set for what lawyers predict will be a long appeals process, one they hope will end with the state's highest criminal appeals court invalidating the law as an infringement on privacy as protected by Texas Constitution.

The arrests in some ways delighted gay activists. They said the case not only provides a long-awaited legal platform to challenge the Texas law, but also has a public-awareness benefit, offering facts that underscore their warnings about privacy.