Buchanan v. Batchelor

• Decision Date: 21 January 1970
• Docket Number: Civ. A. No. 3-3179-B.
• Parties: Alvin Leon BUCHANAN et al., v. Charles BATCHELOR, Chief of Police et al.
• Court: U.S. District Court — Northern District of Texas

308 F. Supp. 729

Alvin Leon BUCHANAN et al., v. Charles BATCHELOR, Chief of Police et al.

Civ. A. No. 3-3179-B.

United States District Court, N. D. Texas, Dallas Division.

January 21, 1970.

Henry J. McCluskey, Jr., Dallas, Tex., George Schatzki, Austin, Tex., for plaintiffs.

Henry Wade, Dist. Atty., John B. Tolle, Thomas B. Thorpe, Asst. Dist. Attys., Dallas, Tex., Crawford C. Martin, Atty. Gen., Bennie Bock, II, Asst. Atty. Gen., Austin, Tex., for defendants.

Before GOLDBERG, Circuit Judge, and HUGHES and TAYLOR, District Judges.

HUGHES, District Judge.

This case involves the constitutionality of Article 524 of the Vernon's Ann. Texas Penal Code defining the offense of "Sodomy."

Plaintiff, Alvin Leon Buchanan, a confessed homosexual, had twice been arrested and charged under Article 524 of the Texas Penal Code for acts of sodomy with another male in public restrooms in Dallas, Texas. He requested the designation of a three-judge court and prayed (1) for preliminary and permanent injunctions against prosecution of the two cases in which he had been charged and against harassment by the police, (2) for a declaratory judgment on the constitutionality of Article 524 and (3) other equitable relief.

At a pretrial conference, that part of plaintiff's complaint relating to prosecutions pending in Dallas County, Texas, was dismissed. The portion alleging police harassment was severed and retained for consideration by a single judge of this court.

Suit was filed by Buchanan on May 26, 1969. Thereafter Michael Craig Gibson, et ux, Jannet S. Gibson were granted leave to intervene. They alleged that Buchanan did not fairly and adequately protect the interest of married persons who fear future prosecution for the commission of private acts described as sodomy. Likewise Travis Lee Strickland was granted leave to intervene. He claimed that Buchanan did not protect the interest of homosexuals who do not commit acts of sodomy in public places but fear future prosecution because of acts of sodomy committed in private. All intervenors adopted the allegations of Buchanan as were applicable and sued for themselves and others similarly situated.

Article 524 of the Texas Penal Code reads as follows:

"Sodomy

Whoever has carnal copulation with a beast, or in an opening of the body, except sexual parts, with another human being, or whoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation or who shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor, shall be guilty of sodomy, and upon conviction thereof shall be confined in the penitentiary not less than two (2) nor more than fifteen (15) years."

The first question to be determined is whether this is a three-judge court case. As originally filed plaintiff and intervenors did not ask for an injunction to restrain the enforcement of the statute, but only for a declaratory judgment and for equitable relief. By omitting to request an injunction the parties failed to properly invoke the jurisdiction of 28 U.S.C.A. § 2281¹ providing for a district court of three judges to hear a case asking for injunctive relief against the enforcement of a state statute. A later amendment of the pleadings prayed for such relief. We, therefore, hold that this is a proper subject matter for a three-judge court.

In the complaint filed by Buchanan there was serious question as to whether this plaintiff had standing to raise the constitutional rights of married persons committing acts of sodomy, or of homosexuals performing such acts with another male in private. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Green v. Board of Elections, 2 Cir., 380 F.2d 445, 452 (1967). It is clear, however, that the allegations of the Gibsons and those of Strickland give them standing to raise such rights for persons similarly situated.

It is defendants' contention that as a matter of comity this court should abstain from deciding whether or not the Texas Statute is unconstitutional until the Texas courts have had an opportunity to construe the statute and rule on its constitutionality. We disagree, first, because there is no prospect of the immediate availability of a state forum where the questions raised here could be litigated which is particularly significant given the operation of an alleged overbroad statute on First Amendment rights, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), compare, Douglas v. City of Jeanette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), and Cotner v. Henry, 7 Cir., 394 F.2d 873 (1968), and, second, because there exists in Article 524 no question of statutory interpretation for which the courts of this State would be of assistance in resolving.

Article 524 makes no distinction whether acts it describes as sodomy are committed in public or in private, whether they are committed homosexually, or whether by married or unmarried persons. Indeed it plainly appears that Article 524 applies to private consensual acts between married persons and private acts of sodomy between homosexuals.

There have been no prosecutions under the Act of married persons for private acts of sodomy. As to whether there have been prosecutions of homosexuals for private acts of sodomy is unclear. To require such persons to await a state court's disposition of the prosecution of an offense of sodomy committed by either of these classes of persons would result in an unfair delay in determination of their rights and a substantial impairment of freedom of action for reasons appearing subsequently in this opinion.

Abstention was refused in Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965), where it was contended that a state statute violated the rights of free expression under the First and Fourteenth Amendments. The Supreme Court in that case held:

"the abstention doctrine is inappropriate for cases such as the present one where * * * statutes are justifiably attacked on their face * * * as applied for the purpose of discouraging protected activities."

The controlling factor in Dombrowski on the abstention issue was the inability of the state court to assure expeditious protection of federal rights.

In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the Supreme Court again refused abstention. Numerous decisions² were reviewed, including United States v. Livingston, D.C.S.C., 179 F.Supp. 9, 12-13 (1959), from which the Court quoted:

"Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it. Any other course would impose expense and long delay upon the litigants without hope of its bearing fruit."

Also, from Stapleton v. Mitchell, D.C. Kan., 60 F.Supp. 51, 55 (1945), the Court quoted as follows:

"We have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum."

In the case before us it is clear that the statute applies to married persons and to homosexuals practicing acts of sodomy in private. There is no need for the state courts to interpret its provisions. Abstention is unwarranted. Chicago v. Achison, T. & S. F. R. Co., 357 U. S. 77, 84, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958); United Steel Workers v. Bagwell, 4 Cir., 383 F.2d 492, 495 (1967).

For the reasons stated we hold that we should not abstain but that this Court should determine the constitutionality of Article 524, Texas Penal Code.

An examination of the statute reveals that it operates directly on an intimate relation of husband and wife. While this relationship is not mentioned in the Constitution nor its amendments, it has been held by the Supreme Court to be included in the First Amendment. It was said in Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L. Ed.2d 510 (1965), that "the First Amendment has a penumbra where privacy is protected from governmental intrusion."

In a concurring opinion Justice Goldberg³ reviewed the action of the Court in other cases and declared (381 U.S. at p. 497, 85 S.Ct. at p. 1688):

"In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. `Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. Little Rock, 361 U.S. 516, 524 80 S.Ct. 412, 4 L.Ed.2d 480."

Since Griswold there have been several cases citing Griswold which have some significance in the interpretation of Article 524. In Cotner v. Henry, 7 Cir., 394 F.2d 873, 875 (1968), a habeas corpus proceeding, the opinion observes that Indiana statute punishing acts of married persons for sodomy might well be unconstitutional after Griswold.⁴ Worthy of noting is the comment in note 3, page 875 of Cotner that "the American Law Institute Model Penal Code adopts the view that consensual private sexual conduct between adults should not ordinarily be subject to criminal sanction."

In Travers v. Paton, D.C.Conn., 261 F.Supp. 110, 113 (1966), the opinion observes that Griswold protects "the sanctity of sexual aspects of the marital relationship," but holds that Griswold is applicable only within the marital context. Smayda v. United States, 9 Cir., 352 F. 2d 251, 255-257 (1965), also restricts the application of Griswold, holding that homosexuals committing acts of sodomy in a public rest-room are not protected by that decision.

The State, in defense of Article 524, points out...