Page 1


Jubilee, a California newspaper dedicated to somewhat right-wing Christian concerns. Jubilee’s representative in San Antonio, selfprofessed Davidian Ron Cole, has been issued a pass to the press room, as have all other applicants. The press room is wired with an audio feed from the court. If any one incident summarizes the knotty contradictions underlying the trial, it involves a bearded, fortyish reporter named Jim Pate. Pate, on the scene for Soldier of Fortune, is one of 50 reporters who received a press pass for courtroom entry. But he has to share his pass with a New York Daily News reporter, and as often as not, Pate has gotten into court as a member of the public. One day Pate was barred from the courtroom for wearing denim jeans. The following day he returned, still wearing jeans, but was admitted because they were corduroy. “Those aren’t jeans that I’m wearing, these are corduroy dress pants,” Pate quipedhaving discerned how Smith’s mind works. If the verdicts that come out of the court keep the spirit of Smith’s instructions on law and rules, the jury’s decision may turn on points that only a Republican judge can comprehend. JOURNAL Supreme Court Punts Sodomy Ruling A year after the Texas Supreme Court heard arguments in the class-action lawsuit challenging the 115-year-old state law against “deviate” homosexual conduct, the court on January 12 ducked a decision on the merits and ruled that it lacked jurisdiction in the case. The state’s highest civil appeals court left intact a lower appeals court decision in another case that found the sodomy statute unconstitutional. But defenders of the statute Section 21.06 of the state penal code said the Supreme Court decision did not remove the potential Class C misdemeanor charge for engaging in sexual intercourse with another person of the same sex. So Texas remains one of seven states that outlaws homosexual conduct but allows heterosexual sodomy. Sixteen other states bar homosexual and heterosexual sodomy. The plaintiffs claimed the statute violated their constitutional right to privacy and stigmatized them as criminals for engaging in conduct that should have been protected by their privacy rights under the Texas Constitution. They argued that the statute, while it is never used to prosecute, is used to justify discrimination against homosexuals in job opportunities, health care and that the statute encourages hate crimes. A trial court in Travis County in December 1990 found the criminal statute ‘unconstitutional and enjoined its enforcement. The Third Court of Appeals in Austin in March 1992 affirmed the trial court’s finding that the statute violated the plaintiffs’ right of privacy and the Supreme Court heard arguments in the case on January 5, 1993. Justice John Cornyn, a Republican writing for the Supreme Court majority that also included Democrats Raul Gonzalez and Jack Hightower and Republicans Nathan Hecht and Craig Enoch, wrote that the court was sympathetic with the argument that nonenforcement of the statute deprives the plaintiffs of standing to challenge the law, but it concluded that the courts did not have the jurisdiction to determine constitutionality of the criminal statute in this case because vested property rights were not affected. Cornyn did note that in another case, City of Dallas v. England, the Austin appeals court affirmed that Mica England, a lesbian,. actually suffered an injury when the Dallas Poliee Department cited the sodomy statute in denying England a job. However, the city’s appeal in that case was dismissed on a technical point and the Supreme Court did not address the merits of that case. Patrick Wiseman, an Austin attorney who represented the gay and lesbian plaintiffs for the Texas Human Rights Foundation, noted that the Supreme Court left the England case as a final ruling, “so we have a final ruling on the books that declares the statute unconstitutional.” The Supreme Court decision turned on the doctrine that a civil court does not have jurisdiction to consider a criminal law that does not cause irreparable injury to the property rights of individuals. “Today this court declares that a court in equity cannot address the constitutional merits of the plaintiffs’ claims because vested rights are not affected,” Justice Bob Gammage, a Democrat, wrote in the 13-page dissent, which was joined by Democrats Lloyd Doggett and Rose Spector and Republican Chief Justice Tom Phillips. He said the majority relied on outmoded reasoning when it decided that equity should intervene only when property was at stake. “Under the court’s analysis, the state may adopt all manner of criminal laws affecting the civil or personal rights of any number of citizens, and by declining to prosecute under them, ensure that no court ever reviews them,” Gammage wrote. That could have an impact for other classes of plaintiffs, he continued. “By its holding the court effectively denies standing in Texas courts to any individual or group of citizens who seek equitable relief under the Texas Constitution, because of an unenforced Texas criminal statute, for the alleged deprivation of any personal liberty or civil right which does not also involve what the court may perceive as an adequate vested property interest. . “The plaintiffs here are among over a quarter of a million Texas citizens who identify themselves as harmed by the existence of this statute. Today, this court tells these plaintiffs that it will not contemplate granting them a remedy even though the state agreed there is harm to their personal rights, absent their also showing harm to a vested property right.” Cornyn wrote that the decision does not exalt property rights over personal rights. “The personal rights of the citizens of this state are protected from infringement by criminal statutes by the criminal courts of Texas,” he wrote. ” … To note that there are also situations in which a party might allege irreparable injury to her property rights justifying equitable relief, does not exalt one right over another, but simply recognizes that many different rights are afforded protection by Texas courts. “The very balance of state governmental power imposed by the framers of the Texas Constitution depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds. … The checks and balances inherent in our form of government depend upon the judiciary’s equanimity and particularly upon our self-restraint.” While Wiseman said the upholding of the Third Court of Appeals decision in the England case should mean that the sodomy statute will never be a problem again, Diane Hardy-Garcia, executive director of the Lesbian and Gay Rights Lobby of Texas, is not so sure. She hopes the appeal court ruling that the statute was unconstitutional will help in efforts to get the Legislature to take the statute off the books next year. But she predicted that gay and lesbian people would have to continue going to the expense and the exposure of filing laWsuits to seek their rights. “It’s disappointing because the Supreme Court is supposed to be the protector of civil liberties in Texas and they didn’t want to protect our civil liberties,” she said. “When will the eyes of Texas get out of my bedroom? I would enjoy the privacy.” At a press conference after the court ruling was published, state Representative Glen Maxey, an Austin Democrat and the state’s only openly gay legislator, noted that the court waited a year and a week after the filing deadline for the 1994 primary elections to decide it had no jurisdiction. “The case was decided in a political manner and it will be answered in a political manner,” he said. J.C. 12 JANUARY 28, 1994