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By Sean Pendergast
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Houston's 14th Court of Appeals is poised for reconsideration -- and likely reversal -- of an earlier ruling by two of the court's justices that the state's homosexual conduct law is unconstitutional. Since the two GOP jurists, Chief Justice Paul Murphy and John Anderson, have been the target of a Republican-orchestrated pressure campaign in recent weeks, can they and their colleagues impartially rule in the case after their political futures have been threatened?
Nueces County District Judge Jack E. Hunter, a Democrat, argues that the answer is no. He's calling for a state investigation of an aborted campaign by GOP Harris County Chairman Gary Polland and others to pressure the jurists into changing their ruling or resigning. Polland was part of the effort to have party officials in the 14 counties in the Houston region send a letter with that ultimatum. (For details on the letter campaign, see the feature on Polland, "GOP Inc.," page 33.)
In his own missive addressed to Texas Supreme Court Justice Tom Phillips, Hunter asked Phillips to refer the matter to the Texas Rangers and Texas Attorney General John Cornyn for investigation.
"I believe these individuals and groups have committed possible violations of law as well as ethical violations," wrote Hunter. He cited Texas Penal Code sections addressing coercion of public servants, exerting improper influence on elected officials and obstruction or retaliation against public officeholders.
"I find this conduct has tainted the judicial process," continued Hunter. "The judiciary should not be subjected to this clear attempt to influence the outcome of a pending case. The independence of the judiciary as the third branch of government is the cornerstone of a free society."
Hunter was particularly bothered by a line in the GOP-crafted letter to Judge Anderson. It declared, "Your opinion blatantly defies the Republican Party Platform and creates potential for further damage to our society."
"When we start making decisions that way, I think we all have a problem," says Hunter. "I suspect the citizens of this state don't want judges to make those types of decisions."
The so-called sodomy law challenge began when Harris County sheriff's deputies entered a private home in 1998 on an erroneous search for an intruder and found two men having consensual sex. John Lawrence and Tyrone Garner were charged with homosexual conduct. They pleaded no contest in order to become poster boys challenging the constitutionality of the rarely enforced law.
A bit of history helps put the controversy in context. The Texas legislature passed an Equal Rights Amendment in 1972, and the next year it enacted a new state penal code that junked the century-old sodomy statute banning oral and anal sex by straight and gay people. In its place, lawmakers added a homosexual conduct statute that bans those activities only by same-sex couples. A companion bill that would have criminalized fellatio, cunnilingus and anal sex for straights somehow never made it into law, a development that some thought was self-serving for the legislators themselves.
Early last month, Justices Murphy and Anderson voted in the majority on a three-judge panel of the 14th Court of Appeals to overturn the law. They ruled it discriminated against gays by criminalizing behavior that is legal for heterosexuals.
Although the court had not officially slated an en banc rehearing of the matter by all nine justices on the 14th Court as of press time, a source close to one justice says an informal poll of the court found that the majority favor a rehearing by the full court. That same vote indicates the ruling by Anderson and Murphy will likely be overturned, since the justices presumably would not favor a rehearing unless they disagreed with the two-judge ruling itself.
Harris County District Attorney Johnny B. Holmes Jr. is a party in the case, and defends the constitutionality of the homosexual conduct statute. He argues that it's up to state lawmakers and not the courts to change the law. Holmes believes that the letter-writing campaign -- GOP treasurer Alan Simpson crafted the letter at Polland's direction -- may be ethically questionable, but not a violation of state law.
"I certainly don't condone the conduct, and would not have engaged in it myself, and don't think much of the lawyers -- in particular Polland -- that even thought about that," says Holmes. "But I am not the morality or ethical guru of this district. The question is whether a crime has been committed, and that's what the judge is suggesting."
Holmes brought his public integrity division chief, Roberto Gutierrez, into the conversation to confirm that he had looked into the matter and found no legal infractions. The key factor, says Gutierrez, is that the letter was never signed and formally sent to Anderson, even though it was faxed to the judge by an anonymous source. The law specifies that "private contact" has to be made to influence an official, so Gutierrez opines that no criminal action occurred. Holmes indicates that had the letter actually been mailed, a grand jury would likely be looking at the matter right now.
Holmes wonders whether Hunter would be alleging illegalities by Polland and crew if they had chosen to run an ad in the Houston Press calling on the justices to reverse their opinion or resign.
"You guys and gals in the media ought not to get too rambunctious with condemning conduct that pretty closely approaches free speech," warns the D.A.
In a phone interview, Hunter questioned whether Holmes can impartially investigate the matter, since he is a party to the sodomy law challenge.
After a long pause, Holmes replied mildly, "I don't have any quarrel with his perception. I believed that we could [be impartial,] because I've looked at it personally. And I don't feel the same way that a lot of people do about that statute. I'm in the 'I don't give a flip' mood with that statute."
Holmes says he never previously concerned himself with the statute, because it had never been enforced here before. "People engage in sexual activity in private, and when they don't, it's the public business," says Holmes. "You go have heterosexual sex in Kroger's, and you're going to be in trouble."
Hunter also contends that since the 14th Court justices have been pressured, the case should be transferred to another appeals circuit for an impartial, untainted hearing.
Holmes says that reasoning could also bias the judges against his side.
"That's my concern," muses the D.A. "If I were sitting on the court, I'm afraid that either consciously or subconsciously, I may be inclined to say, 'Screw you, Republican Party, I'll show you,' and just refuse to do anything with the three-judge panel's decision. I would hope the members of the appellate court are beyond that."
Nevertheless, Holmes does not favor moving the case to another appeals court. States the D.A.: "I don't have any reason to believe that the judges won't do what they think is right based on the law."
On the other hand, having been forewarned that their political futures could be in jeopardy if they defy the GOP platform, the jurists just might decide that their wisest option is to talk a straight line.