Keith Burgess-Jackson, J.D., Ph.D.

12-11-90 . . . The news out of Austin is that the Texas statute forbidding sodomy among homosexuals has been decreed unconstitutional by a district judge. The interesting thing about this case is that it rests on the Texas Constitution, not the United States Constitution. The United States Supreme Court ruled in 1986 (in the case of Bowers v. Hardwick) that the right to privacy does not include the decision to commit sodomy, which is defined in most states, as in Texas, as oral or anal sex. Hence, the states may, consistently with the United States Constitution, prohibit such conduct. Texas has and does. But a state constitution can give individuals a more expansive right to privacy than does the United States Constitution. That’s what the defendants in the Austin lawsuit argue. (They also argue that the Texas statute violates the Equal Protection Clause [of the Fourteenth Amendment] because it prohibits only homosexual sodomy.) It’ll be interesting to see what happens on appeal. I would love to see the anti-sodomy law struck down. It’s a gross invasion of personal liberty, autonomy, and privacy, not to mention an insult to homosexuals.