August 20,1982 / Montrose Voice 3
Judge Says State's 'Homosexual
Conduct' Code Not Constitutional
Texas Human Rights Foundation president and Houston attorney
Robert Schwab, part of the legal team that successfully challenged
the constitutionality of the Texas "homosexual conduct" law
By Johannes Stahl
Section 21.06 of the Texas State Penal
Code, which proscribed consensual sex
between adults of the same sex, was ruled
"unconstitutional" Tuesday, August 17,
by Judge Jerry Buchmeyer of the Northern District/ Dallas Federal Court of
It was a lengthy 52-page opinion and
was in favor of plaintiff Don Baker on the
grounds of "right to privacy" and "equal
protection under the law."
"... This statute, 21.06, make criminals
out of more than 700,000 individuals in
Texas who are homosexual, although they
do not choose to be, and who engage in
private sexual conduct with other consenting adults," said Buchmeyer in his
Stating the U.S. Constituional grounds
of right to privacy and equal protection
under the law, the opinion continued:
"because if it were not (protected), the
state would have the same power to
intrude into the private lives and bedrooms of heterosexuals and regulate the
intimate sexual relationships of married
couples, single males, and females..."
Texas is the 26th state to decriminalize
homosexual conduct laws—or have them
decriminalized by a court.
"It's the first time a federal judge has
ruled on homosexual conduct laws, using
U.S. Constitutional grounds as a basis for
his decision," said Robert Schwab, president of the Texas Human Rights Foundation (THRF), which assisting Baker on the
"We plan to immediately enforce the ruling against any state action thatdiscrimi-
nates on the basis of sexual orientation,"
Steve Shiflett, THRF boardmember,
said at a press conference in Houston that
day, that any state licensing office and
even the police departments in the state
will be affected by the ruling.
Shiflett said the THRF chose this case
and has funded it in hopes of such a ruling.
Will there be an appeal?
"I doubt it," said Shiflett. "We're prepared for an appeal if there is one."
An appeal to the decision whould have
to come from Texas State Attorney General Mark White and be filed within 30
days of Judge Buchmeyer's decision.
Mark White was endorsed by several
gay political groups, including Houston
Gay Political CaucuB, in his successful
race in the Democratic primary for governor of Texas.
However, since the ruling, White has
been beseiged with letters and telegrams
from religionists urging him to appel the
Houston Gay Political Caucus president
Larry Bagneris Jr. Thursday, Aug. 19,
urged his members to start a letter-writing
campaign to White to counter the messages that were urging an appeal.
Baker was fired from his position as
teacher for the Dallas Independent School
District on grounds of the state law. He is
current president of the Dallas Gay
Alliance, serving his third term in that
The case of Baker vs. (Henry) Wade
(Dallas County District Attorney), a class
action suit, was argued June 15, 1981, in
federal court and a decision was due last
August but was delayed because of Judge
Buchmeyer's involvement in state
Houston Mayor Kathy Whitmire said in
a press conference Wednesday, August 18,
that the city's legal department is examining the ramifications ofthe ruling as they
pertain to the city.
"It's not generally in the best interest of
anyone to have the state trying to regulate
private acts between consenting adults,"
Whitmire said, when pressed for a
Sgt. T.D. Tippin, Houston police department recruiting office, said to reporters,
"Even if overturned, a state court would
have to review any changes relating to
hiring practices. It (21.06) was part ofthe
basis for not hiring openly gay recruits."
He speculated that such court action
would take place if the ruling is not
Schwab said though that once the judge
ruled the law unconstitutional, the law is
"off the books, even during an appeal
In an interview withHouston Police
Chief Lee Brown in June Brown told MONTROSE VOICE reporter Ed Martinez that
"... If a person is eligible for being hired
and there are no legal prohibitions then no
police agency would be in a position not to
hire them (gay and lesbian applicants)
because they'd (the police) be breaking the
celebration night in
What would have otherwise been a average
Tuesday night in Montrose turned into a
party night when word spread that Federal
Judge Jerry Buchmeyer struck down
section 21.06 of the Texas Penal Code
That's the section that made it a crime for
adult members of the same sex to engage in
sex in private.
Judge Buchmeyer didn't just strike it
down—he STRUCK it down in a 53-page
court opinion that took over a year to
Obviously, to anyone with two ounces of
brains, it is unconstitutional for one person
to tell another person how to act sexually
with another consenting adult in private.
So obviously, our Texas lawmakers don't
have two ounces of brains.
And, likewise, neither do the
homophobes (many who claim to be
Christians and many who wear blue
uniforms) who are now ranting and raving
But let them r- * and rave. They've got to
do something to stay occupied.
Houston gay activists Lee Harrington,
Ray Hill, George Barnhart. others, were the
focus of attention by Houston's TV stations
Tuesday and Wednesday, popping
champagne corks at the new Fred Paez
Community Center on Avondale.
(I bet you never knew Ray Hill ever wore a
suit. I bet you didn't even know that George
Barnhart owned a suit. But we all know that
Lee Harrington has hundreds of suits)
Well, anyway, the TV coverage isn't over
yet. Harrington will appear on the Nancy
Carney interview show at 6:30 a.m. next
Wednesday on channel 11, and no doubt
appearances on other guest shows will
If you'd like to send a letter to our state
atorney general advising him not to waste
taxpapers' money in appealing the Federal
court ruling, you can write to Mark White.
1705 Guadalupe, Second Floor, Austin, TX
Several thousand "Christians" have
already flooded him (as of Thursday) with
letters and telegrams telling him that "God
will punish" him if he doesn't appeal the
Larry Bagneris of Houston's GPC says
telegrams and letters weigh heavy on a
politician's mind. So for Attorney General
White to get in the right frame of mind.
readers of the VOICE need to also write,
telegraph and call saying the Federal
judge's ruling was long overdue and that
you will be upset if he waists your taxpayer's
money with a useless appeal.
Additionally, as you know. White is the
Democratic candidate for governor in
November and is "expecting" the large gay
vote from Houston. You might just remind
him—in a polite way—that his decision on
whether to appeal the ruling could affect
your vote Nov. 2.
Everything's on schedule for the first big
edition of Dallas Gay News in three weeks,
says DGN editor Chuck Oberg,
Chuck wants to thank the "Dallas
Welcoming Committee" last weekend:
Michael, Walter, Paulette and the Widow
Two worthwhile garage sales this weekend:
The Brazos River Bottom's softball team
is heading to Tulsa for a tournament and is
having a garage sale to help with the
It'll be Saturday, 9:00 a.m to dusk, at 2107
And some GPC members will have a
garage sale Saturday and Sunday at 1004
California, 9:00 a.m. to 6:00 p.m., to raise a
few dollars for that organization
Come on out. ya hear?