was never a factor in the case that proceeded from the incident. Eubanks later pled guilty to filing a false police report and served fifteen days in jail as a result.
Lawrence and Garner were jailed and charged with violating Chapter 21, Section 21.06 of the Texas Penal Code, the state law dictating “Homosexual Conduct,” which prohibited “deviant sexual intercourse with another individual of the same sex.” Under this law, oral and anal sex between members of the same gender were classified as a Class C misdemeanor.
The two men were freed after they posted $200 bail and, two-and-a-half months later, they pleaded no contest to the charges against them before Justice of the Peace Mike Parrott.
Lawrence and Garner exercised their right to a new trial before a state criminal court, however, and there asked the judge to dismiss the charges against them on the basis of the Fourteenth Amendment of the U.S. Constitution’s guarantees of equal protection and privacy. Their claim was that the Texas law was unconstitutional in that it both prohibited certain sex practices between same-sex couples but not heterosexual ones and was intrusive. When the criminal court rejected this argument, the two men once again pleaded no contest and reserved their right to file an appeal, upon which the court fined them $200 each, along with $141.25 in court costs.
The U. S. Supreme Court stepped in to tell the state where it could stick its intrusive sodomy laws.
In November 1999, the appellants presented arguments on the grounds of both equal protection and the right to privacy to a three-judge panel of the Texas Fourteenth Court of Appeals. Two of the judges ruled in their favor, finding that the sodomy law violated the 1972 Equal Rights Amendment to the Texas Constitution, which bars discrimination based on race, color, creed, national origin, or sex. The full court, however, ultimately overturned this decision, voting 7–2 to uphold the constitutionality of the state law and denying both the privacy and equal protection arguments that had been brought before it.
In April 2001, Lawrence petitioned the Texas Court of Criminal Appeals, the highest appellate court in the state for criminal matters, but it declined to review it.
Nearly two years later, however, in December 2002, the U.S. Supreme Court agreed to hear Lawrence v. Texas, prompting a wide variety of organizations to file amicus curiae briefs on behalf of both parties. In its deliberations, the justices had to consider whether the petitioners’ criminal convictions under the Texas law violated the Fourteenth Amendment guarantees of equal protection, liberty, and privacy.
On June 26, 2003, the Supreme Court decision rendered its highly publicized decision, in which it voted 6–3 to strike down the Texas law. Five of the justices—Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter, and John Paul Stevens—maintained that this law violated due process guarantees, and one, Sandra Day O’Connor, found that it violated equal protection guarantees. In its deliberations, the high court rejected the legal arguments presented by the state of Texas, essentially dismissing them as matters of taste rather than law.
“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” the high court stated in its decision. It did, however, also specify the limitations of its decision.
“The present case does not involve minors,” it said. “It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
And, while the case had originated in Texas, the Supreme Court decision had the additional effect of invalidating the sodomy laws in twelve other states and overruled a 1986 ruling it had made in Bowers v. Hardwick, in which it had upheld the Georgia state sodomy law, and was applauded by proponents of gay rights.
“Bowers was not correct when it was decided,” the court stated. “And it is not correct today.”
10
A Risky Proposition
TEXANS ARE BIG INTO RIGHTS—unless they involve sex, gays, or other people in general. And sometimes, the effort to control what other people do can backfire. That is what very nearly happened with Proposition 2, a poorly written amendment to the state constitution that one can almost imagine being scratched out by shoeless rednecks on the lid of a cracker barrel.
Proposition 2 was one of nine items on the statewide Constitutional Amendment Election ballot held on November 8, 2005, and was among the seven approved by Texas voters, of whom 76.25 percent voted for and 23.74 percent against it (with Travis County, where the state capital of Austin is located, being the only county to oppose it).
Passage of this proposition created an amendment to the Texas Constitution intended to limit marriage in Texas to traditional male-female relationships and prohibit alternative legal arrangements of a similar sort. In short, even though same-sex marriages, plural marriages, and civil unions were already prohibited under state law, the backers of the proposition saw fit to push through a showy and redundant modification to the state constitution.
This amendment reads:
(a) Marriage in this state shall consist only of the union of one man and one woman.
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Opponents of the proposition, however—including the nonprofit group Save Texas Marriage—assert that by leaving out key words, legislators are technically invalidating even traditional marriage, because section “b” negates section “a.”
“A greedy insurance company, tricky divorce lawyer, or a liberal Austin activist judge can easily use these words to overturn traditional marriage and cause people to lose health insurance, tax breaks, and pensions,” said San Antonio’s Beacon Hill Presbyterian Church’s Rev. Tom Heger in an automated telephone call that went out to about two million households statewide, with an emphasis on seniors.
Those in favor of the amendment indignantly noted that this appeal was merely a “smokescreen” intended to confuse voters on the issue.
Four years after the amendment passed, it again received statewide attention, when a candidate for Texas attorney general once more attacked it on the merits of its grammar. In November 2009, Barbara Ann Radnofsky stated her belief that, because marriage is, by definition, identical to itself, the amendment does in fact outlaw all marriage in the state. Whether this stance harmed or helped her cause, she did not win the election.
Texans are big into rights—unless they involve sex, gays, or other people in general.
The amendment was also challenged on the basis of its intended purpose of targeting certain segments of the population. On October 1, 2009, Dallas District Judge Tena Callahan struck it down on the grounds that it denied same-sex couples equal treatment under the Fourteenth Amendment to the U.S. Constitution. This was in response to a lawsuit filed by a same-sex Dallas couple whom had married in Massachusetts in 2006 but were attempting to get divorced in Texas, as Massachusetts only permits state residents to file for divorce.
Texas Governor Rick Perry and state Attorney General Greg Abbott appealed the lower court ruling to the Fifth Court of Appeals in Dallas, in an attempt to get the decision nullifying the amendment overturned. They got their way, and on August 31, 2010, the higher court reversed the ruling on the basis that the Texas constitutional ban on same-sex marriage does not violate the Equal Protection Clause of the Fourteenth
