Lessons from Continued Sodomy
AS LITIGATION EFFORTS spread to other states, a mixed record developed. Some state high courts went the way of Kentucky and Tennessee, while others were more hesitant, not wishing to challenge political and legal moralism. However, sodomy law repeal efforts without litigation achieved even fewer results for reformers. This demonstrates the significant power of courts to achieve change, especially when that change is framed in a way that reinforces powerful strains of a political culture.
Although the U.S. Supreme Court invalidated the Texas sodomy law in Lawrence v. Texas in 2003, developments in Texas before this decision provide an excellent example of the role that liberal legal arguments can play in contemporary U.S. politics, as well as the continued salience of morality politics, especially in socially conservative states where courts are more reluctant to act aggressively. Until recently, Texas was one of four states to criminalize sodomy for persons of the same sex only. A sodomy law dating from 1860 relied on common law interpretations from the courts to give it effect, since the wording of the statute was quite general.1 The law was given specificity by the legislature in 1943, when a discussion of specific body parts and specific sexual acts, including oral sex, were included in the definition of sodomy.2 This expansion of the law was upheld by the Texas courts as a legitimate exercise of legislative authority and not violative of any fundamental rights.3
In 1969, the revised law was challenged in federal court. The case first involved a gay man (or as the case opinion stated “a confessed homosexual”) who had been arrested for having sex with another man in a public restroom in Dallas. The case was soon overshadowed with the concerns of heterosexuals, however, since a married couple and a heterosexual male who claimed they lived under the threat of future prosecution joined the case.4 The case was heard in a U.S. District Court, which declared the law unconstitutionally overbroad in that it implicated the sexual acts of married couples. Relying on the recent precedent of Griswold v. Connecticut, the court held that marital privacy was protected from such intrusion. Additionally, the court adopted a Millian approach to the regulation of private morality.
Sodomy is not an act which has the approval of the majority of the people. In fact such
conduct is probably offensive to the vast majority, but such opinion is not sufficient