LeftOut

Unbelievable
by Daryl Moore

The "reasoning" behind the court’s ruling that the Texas anti-sodomy statute is constitutional ... even though it only applies to gays

On June 8, 2000, in a 2-1 decision, a three-judge panel of the all-Republican Fourteenth Court of Appeals ruled that section 21.06 of the Texas Penal Code (the Anti-Sodomy Statute) is unconstitutional. Immediately after the court issued its opinion, Harris County Republican Party Chair Gary Polland orchestrated a letter-writing campaign calling for the two judges who declared the statute unconstitutional to step down. Then, at the State Republican Convention last summer, Polland had them singled out and censured for their legal ruling because it was directly contrary to the Republican Party platform’s position on homosexuality and homosexual conduct. (So much for the concept of an "independent judiciary.")

After the ruling, and after Polland had made his and his party’s position clear to all of the Republican judges sitting on the Fourteenth Court of Appeals, the nine-judge court agreed to reconsider its opinion. On March 15, it issued a new opinion. And, lo and behold, in a 7-2 opinion issued, the court reversed itself and declared that the Anti-Sodomy Statute is constitutional after all because it "advances a legitimate state interest ... namely, preserving public morals."

It took the seven-member majority of the court 22 pages of judicial smoke and mirrors to conclude that "deviant sexual intercourse, when performed by members of the same sex, is an act different from or more offensive than any such conduct performed by members of the opposite sex." Along the way to finding gay and lesbian sodomites "more offensive" than their heterosexual counterparts, the majority wandered through the Magna Carta, the Emancipation Proclamation, Dr. Alfred Kinsey’s report on sexuality, and the Bible. The majority, however, never did manage to explain how permitting individuals of the same sex to privately engage in acts of sodomy would undermine public morals, but permitting individuals of the opposite sex to privately engage in acts of sodomy somehow promotes public morality.

While it’s hard for me to find much of anything in the majority’s opinion that’s well-reasoned, I think the most absurd holding in the opinion is the majority’s conclusion that the Anti-Sodomy Statute does not distinguish persons by their sexual orientation. Indeed, the majority actually wrote that "while homosexuals may be disproportionately affected by the statute, we cannot assume homosexual conduct is limited only to those possessing a homosexual ‘orientation.’" In other words, the majority concluded that since it is possible for heterosexuals to engage in homosexual conduct, a statute that outlaws only homosexual conduct does not single out homosexuals. It keeps straight people from committing homosexual sex acts, too.

Right. And a government ban on Christian prayer does not single out Christians because it also prevents Jews from invoking Jesus’ name. And an employer’s practice of firing "persons" with breast cancer does not single out women.

Amazingly, upon reconsideration by the full court, only the two judges who originally declared the statute unconstitutional could agree that a statute that permits "deviant sexual conduct" between same-sex persons, but permits "deviant sexual conduct" between heterosexual persons, cannot in any way promote public morality. So, these two lonely judges dissented.

In their dissent, they called "bull----" on the hypocrisy of the majority opinion by pointing out that "sodomy is either immoral or it is not.... The Legislature’s removal of the prohibition on heterosexual sodomy while retaining it for homosexual sodomy cannot be explained by anything but animus toward the persons it affects."

Unfortunately, we will never know whether one or more members of the majority upheld the Anti-Sodomy Statute because they have "animus" toward gay and lesbian persons. Was this decision reached because they truly believe the statute is constitutional? Or because they were afraid that they, too, would be singled out, censured, or targeted by their own party if they sided with the minority and declared the statute unconstitutional? What we do know is that seven Republicans declared that it is constitutionally acceptable to criminally punish those who privately commit an act of consensual sodomy with another member of the same sex.

The Texas Legislature defines "sodomy" as the commission of "deviate sexual intercourse with another individual of the same sex." "Deviate sexual intercourse" is defined as "any contact between any part of the genitals of one person and the mouth or anus of another person; or ... the penetration of the genitals or the anus of another person with an object."

I hope the four men and three women who signed onto the majority opinion remember these statutory definitions the next time they have to undergo a prostate or gynecological exam. Because, under the statutory definitions that these seven judges deemed constitutionally acceptable, a prostate or gynecological exam by a member of the same sex is an act of sodomy that warrants criminal punishment in the name of public morality.

Hopefully, the Fourteenth Court of Appels will not be the last word on this issue as the two "criminals" convicted of sodomy plan to appeal the ruling to the all-Republican Texas Court of Criminal Appeals. Then, if they lose there, it will be up to the United States Supreme Court to decide whether heterosexual sodomy promotes public morals, but same-sex sodomy demeans them.