Baker v. Wade

Decision Date17 August 1982
Docket NumberCiv. A. No. 3-79-1434-R.
Citation553 F. Supp. 1121
PartiesDonald F. BAKER, Plaintiff, v. Henry WADE, District Attorney of Dallas County, Texas, in his official capacity; and Lee Holt, City Attorney of Dallas, Texas, in his official capacity; and the Class of all City, County and District Attorneys in the State of Texas, in their official capacities, Defendants.
CourtU.S. District Court — Northern District of Texas

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James C. Barber, Dallas, Tex., for plaintiff.

Charles Baldree, Asst. Dist. Atty., Joseph G. Werner, Kent S. Hofmeister, Asst. City Attys., Dallas, Tex., for defendants.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a suit by a homosexual, Donald F. Baker, attacking the constitutionality of § 21.06 ("Homosexual Conduct") of the Texas Penal Code. Section 21.06 (and the related definitions in §§ 1.05 and 21.01) provide:

"A person commits an offense if he or she engages in deviate sexual intercourse with another individual of the same sex.
"`Deviate sexual intercourse' means any contact between any part of the genitals of one person and the mouth or anus of another person."

A violation of this statute is a "Class C misdemeanor," punishable only by "a fine not to exceed $200." Tex.Penal Code Ann. § 12.23 (Vernon 1974).

The defendants contend that § 21.06 is constitutional because it furthers the state's interests in protecting "morality, decency, health, welfare, safety, and procreation"— but, despite these important state interests, they also claim that the case should be dismissed because no one is ever prosecuted under this statute.

There have been (and will continue to be) prosecutions of both homosexuals and heterosexuals — under Texas Penal Code provisions not involved in this suit — for such sexual offenses as (i) rape and sexual abuse by force, §§ 21.02 and 21.04; (ii) indecent exposure or public lewdness, §§ 21.07 and 21.08; and (iii) rape, sexual abuse or fondling of a child, §§ 21.09-21.11.

However, § 21.06 does not concern rape, sexual abuse by force, offenses involving minors, or sexual conduct in public. Nor does it prohibit sodomy between a husband and wife or between an unmarried male and female. Instead, it condemns only homosexual conduct done in private between consenting adults. Accordingly, it is unconstitutional because it violates both the fundamental right of privacy and the right to equal protection of the laws guaranteed to the plaintiff (and other homosexuals) by the United States Constitution.

This opinion will first discuss the procedural background of the controversy, the sodomy statute involved, and the facts established at trial (pages 1125-1134). Then, it will analyze the legal issues of right of privacy and equal protection (pages 1134-1145). Finally, it will deal with several additional matters raised by the parties (pages 1145-1147), and conclude by describing the exact limits of this decision (pages 1147-1148).

The Procedural Setting

The complaint seeks a declaration that § 21.06 (Homosexual Conduct) of the Texas Penal Code is unconstitutional because it violates (i) the plaintiff's fundamental right to privacy, (ii) the equal protection clause of the fourteenth amendment, and (iii) the establishment of religion clause of the first amendment.

It named as defendants Henry Wade, District Attorney of Dallas County ("Dallas County") and Lee Holt, City Attorney of Dallas, Texas ("City of Dallas") — but also sought a defendant class, under Fed.R. Civ.P. 23(b)(2), consisting of "all district, county and city attorneys in the State of Texas responsible for the enforcement of Texas Penal Code Ann. § 21.06." After the State of Texas intervened, the parties agreed that such a defendant class was proper. A consent certification order was entered, and the Court reaffirms its determination that the defendant class was properly certified.1

The Statute

Texas has had three sodomy statutes. See Appendix A ("The Texas Sodomy Laws").

The first was enacted in 1860. It prohibited "the abominable and detestable crime against nature" (punishable by 5-15 years imprisonment). However, this statute did not condemn oral sex, but only anal sex and bestiality.2 Thus, for a period of 83 years, oral sodomy was not illegal in Texas — whether committed by man and wife, by unmarried male and female, or by homosexuals.

The second statute was Article 524, Texas Penal Code Ann., adopted in 1943. It prohibited "carnal copulation" with human or beast (punishable by 2-15 years imprisonment), and condemned all oral and anal sex and bestiality. Thus, for the next 31 years, it was a felony for anyone in Texas — married couples, single males and females, male homosexuals or lesbians — to engage in oral or anal sodomy, even in private with another consenting adult.3

The third statute, § 21.06, was passed in 1974 as part of the first comprehensive reform of the state's criminal laws since the initial penal code had been enacted in 1856. It prohibited only homosexual sodomy. All prohibitions against oral or anal sex between consenting adults of opposite sex, whether married or not, were rescinded (as were criminal laws against fornication and adultery). Thus, for the past 8 years in Texas, only homosexuals have been prohibited from engaging in private, consensual sodomy (although punishment was drastically reduced by § 21.06, with no imprisonment and a maximum fine of $200). At least three sessions of the Texas legislature have rejected attempts to repeal § 21.06, and this is the first direct constitutional attack upon it.4

There are practical difficulties in prosecuting persons under § 21.06 for private homosexual conduct. If the acts are between two people in private, there may be no witness to testify at trial. Moreover, "the consenting parties to acts of sodomy are equally guilty and their testimony as witnesses for the state would require corroboration."5

However, homosexuals have in fact been prosecuted under the Texas sodomy statutes.6 And, the parties in this case stipulated in the final pretrial order that the plaintiff is "an admitted practicing homosexual"; that he has not been arrested or prosecuted for a violation of § 21.06; but that cases involving violations of this statute "have been prosecuted by various assistant city attorneys and assistant district attorneys" in Dallas; and that both defendants "would prosecute the plaintiff and other homosexuals under § 21.06 if a provable violation of the law came to their attention."

The Facts

The following summary of the testimony of the plaintiff, the plaintiff's experts, and the defendants' witnesses constitutes this Court's findings of fact under Fed.R.Civ.P. 52(a).

the plaintiff

Donald F. Baker, 35, is a former Dallas school teacher who received his master's degree in education from Southern Methodist University in 1980. He has never been arrested or convicted of any criminal offense. He is an active and devout Christian. And, he is a good citizen, having served as precinct chairman and as a delegate to two state Democratic Party conventions.

But Donald Baker is a homosexual. He has never had sex with a woman, or even been sexually aroused by a female. He does engage in private sexual acts with other adult males, but is not capable of doing so with females. Therefore, Donald Baker is also a criminal under § 21.06 of the Texas Penal Code.

Baker was a very sincere, very credible witness.7 While his parents listened in the courtroom, Baker gave the following testimony about his adolescent ignorance of his homosexuality, his disgust and self-loathing upon recognition of it, his isolation and suffering, his suicidal tendencies, and his eventual change from a "homosexual" into a "gay."8

Baker was born on April 24, 1947, into a very stable and religious family in Dallas. His grandfather had been an Assembly of God minister, and Baker was very active in this church. He was a leader in various youth activities, including the church choir and the boy scouts. During his junior high school years, when Baker was 13 or 14, he started to become aware that he was somehow "different." Although he dated some girls because of peer pressure, he found this awkward. He began realizing that he had strong feelings for his male friends, but could not understand his frustration and loneliness. He knew that "queers were bad," and had no idea that he might be homosexual.

In 1965 Baker graduated from high school and attended East Texas State University. There, he became even more aware that he was "different." He did "some study" of the "general area of homosexuality," and learned it was illegal. He grew very disappointed in himself, and simply could not understand why he was having feelings that were "wrong" and "criminal" and "sinful."

After two years at East Texas (1965-67), Baker transferred to the University of Texas at Austin. There, he continued his church activities and worked at a campus bookstore. He had never engaged in any homosexual conduct and still did not know he was homosexual. Then, in November of 1967 — when Donald Baker was 20 — he had his first homosexual "experience."

On that day, Baker took a break from work at the bookstore to watch a football game on television in the student union. The room was crowded and Baker soon became aware of a man standing next to him. After a while, Baker looked up, and the man — blond, early twenties, medium height — was staring at Baker, with a look that was "erotic." Baker felt intense anxiety and attraction. He followed the man to the rest room, but nothing happened. Baker refused the man's advances, and returned to work, where he broke into sobs.

Baker was overwhelmed with fear and with disgust. He knew his desires for sexual contact with the man were wrong, and were contrary to his family and religious values. Baker felt he was a "dirty, nasty thing." He left work, and went to sing in the church choir, but broke down...

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