826 S.W.2d 201 (Tex. App.); 869 S.W.2d 941 (Tex. S.Ct.)
Brief Filed: 1/92 (Tex. App.); 12/92 (Tex. S.Ct.)
Court: Texas Court of Appeals; Supreme Court of Texas
Year of Decision: 1994
Read the full-text amicus briefopens in new window (PDF, 328KB)
Whether the equal protection and due process components of the Texas Constitution prohibit criminalization of consensual homosexual sodomy among adults in private
Sexual Orientation (anti-sodomy law)
The Texas Criminal Code criminalizes "deviate sexual intercourse", which is defined as oral or anal sexual contact involving persons of the same sex. The Texas Human Rights Foundation sponsored a lawsuit brought on behalf of individuals who have violated and will continue to violate the law. The trial court held that the statute violated the Texas State Constitution and enjoined the state from enforcing it. Texas appealed and APA submitted a brief in support of the plaintiffs. The appellate court affirmed and the state appealed the case to the Texas Supreme Court.
APA submitted amicus briefs at both the appellate court and the Texas Supreme Court levels. The brief submitted to the Texas Supreme Court argued: (1) the freedom to express intimacy through the proscribed sexual conduct is important to the psychological health of individuals and intimate human relationships and the law therefore violates the fundamental right to privacy under the Texas Constitution; (2) the relationships of homosexual couples are psychologically important; (3) sexuality is a fundamental aspect of gay and heterosexual couples' intimate relationships; (4) the proscribed sexual conduct is an important aspect of private, sexual expression for the general population, as well as gay men and women; (5) oral and anal sex do not harm but rather promote the psychological health of individuals and their relationships; (6) scientific research and opinion support the circuit court's decision that the law violates the appellees' right to equal protection of the laws under the Texas Constitution; (7) sexual orientation does not affect a person's ability to contribute to society; (8) discrimination against gay people is based on prejudice and false stereotypes; (9) sexual orientation is highly resistant to change, and it is therefore abhorrent for the state to penalize gay people; and (10) the statute (a) invidiously discriminates against a significant proportion of the population, (b) actually harms the public health and individual mental health, (c) is not a public health measure and is counterproductive to public health goals, (d) does not deter behavior through which HIV or other sexually transmitted diseases may be spread, (e) interferes with health education efforts designed to encourage safer sexual practices, (f) does not further any mental health objectives, (g) injures the mental health of many members of society with harmful repercussions for individual physical health, (h) is psychologically damaging to gay men and lesbians, (i) is likely to reinforce hostility, discrimination and violence against gay people, and (j) is likely to interfere with law enforcement efforts to deter violent crimes against gay men and lesbians.
The Texas Supreme Court declined to rule on the merits, holding that it lacked equity jurisdiction because there had been no showing that the law was ever enforced in the past or would be enforced in the future.