Do you live in Texas and want the sodomy laws overturned? Then by all means petition the legislature to remove the law. Bring a case to the Court of Criminal Appeals, which is the highest court in Texas for hearing appeals of criminal cases.
What you ask is no different than asking blacks to beg the Legislature to stop the racial segregation of the universities back in the 1950's and early 1960's. It wasn't going to happen, since the legislature and the governor's office was filled with racists. The federal courts had to step in, and rightfully so. The people opposing the federal court actions used that same exact wording that you are using against the Lawrence decision.
as long as the exceptions do not violate another amendment of the Constitution.
It did violate another amendment to the constitution, namely, the 14th amendment. The Texas sodomy statute was called, on it's face, "Homosexual Conduct". It was passed to only effect certain acts between same sex, and did not apply to heterosexual partners for the same acts. You can slice and dice it all you want, but the law would have no been no different if it said that it was illegal for two people of the different race to engage in certain sexual conduct, and let legal those same acts for same race couples.
This was precisely what the equal protection clause was made to protect, and your arguments are no different than what the Supreme Court stated in US v. Cruikshank, a horrifically racist Supreme Court decision which said that only the states could regulate criminal contact and that federal government could not step in to protect the civil rights of US Citizens against state supported mass murder and general loss of civil rights. The 1876 Supreme Court basically said "Go to your state legislature and state cops". Sorry, but when the state legislature is filled with racists (or in the case of today, homophobes) and the cops are the people trying to massacre you and/or take away your right to privacy and liberty, that makes that entire equal protection and liberty argument totally moot, because both the lawmaking body and the executive bodies, the ones who make the laws and the one who enforces the law are subject to the passions, wills, and hatreds, of the popular vote. The courts in some states are also popularly elected, too. You won't see massacres against homosexuals nowadays because you have the Pink Pistols, and of course, the media would have a field day with it.
The Homosexual Conduct statute was enacted in 1973 with the specific intent to discriminate. Penal Code, section 21.06, originally prohibited all forms of sodomy with opposite sex, same sex, and all sex with animals. The law was amended to only include same sex sexual conduct. Meaning that opposite sex couples could have oral and anal sex (folks, no need to edit stuff here, we're almost all adults here, and we can talk about this without snickering and being worried for kids), and any person could have sex with animals! Yet, have oral sex with a partner of the same sex, and you were a criminal. This was the law in Texas, Kansas, and Oklahoma. Missouri's sexual misconduct statute was declared unconstitutional by a district court of appeal in western MO, but a prosecutor outside that district said he would prosecute, and in fact, there was a prosecution in St. Louis under that statute.
Given that Texas legalized bestiality in lieu of illegalizing same sex sexual conduct, any claim to "protecting the morals of it's people" is a farce, and there is NOTHING you, or anyone else, can say to me or most rational people, to defend it on moral grounds.
The laws in the other 9 states, Utah, Idaho, Lousiana, Alabama, Mississippi, South Carolina, North Carolina, and Virginia, had it in effect for both same sex and opposite couples, but has been enforced almost exclusively against same sex couples.
In 1901, Alabama had a constitutional convention. There was a section that prohibited people convicted of misdemeanor convictions could not vote. From Jim March's website on the case of Hunter v. Underwood:
"Article VIII, 182, of the Alabama Constitution of 1901 provides for the disenfranchisement of persons convicted of certain enumerated felonies and misdemeanors, including "any . . . crime involving moral turpitude.""
Supreme Court made this decision:
Section 182 violates the Equal Protection Clause of the Fourteenth Amendment. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 . That 182 may have been adopted to discriminate against poor whites as well as against blacks would not render nugatory the purpose to discriminate against blacks, it being clear that the latter was a "but-for" motivation for adopting 182. There is no evidence that the disenfranchisement of those convicted of crimes involving moral turpitude was a motivating purpose of the 1901 Convention. Events occurring since 182 was adopted cannot validate the section. Nor can the Tenth Amendment save legislation prohibited by the Fourteenth Amendment. And the implicit authorization in 2 of [471 U.S. 222, 223] the Fourteenth Amendment to deny the vote to citizens "for participation in rebellion, or other crime," does not except 182 from the operation of the Equal Protection Clause. Pp. 227-233.
A statute that is on it's face not discriminatory, but made with discriminatory intent, even if enforced in a non-discriminatory way in the modern day, with any sort of disparity, is unconstitutional. Virginia and several other southern states targetted gays for sting operations. Overwhelmingly, gays were targetted for consentual conduct. There cannot be an argument that the law is no longer being enforced by homophobes. The laws were drafted with the intent that heterosexuals, being the lawmakers themselves, would NEVER be targetted for the sodomy statutes.
Think it can't happen? See the Florida Supreme Court case in the 1940's where a white man was charged with violating the Florida concealed weapons statute, and it was thrown out because it was never meant to target white men.
Also, see Cleburne v. Cleburne Living Center. A local ordinance was drafted specifically to target "hospitals for the feeble minded". Though not under a racial or gender precedent, the ordinance which gave the city of Cleburne the ability to deny the zoning to the Living Center was generally discriminatory in intent when it was drafted, and the effect was to discriminate against the mentally ill, even if the current city government was not against mentally ill people. It failed even under the lowest amount of judicial scrutiny in 1985.
All of you should be cheering the Lawrence case. You could make the argument that ownership of a firearm in your own home is a full civil right that is enumerated under the right to privacy, and it could still work.
Thanks to Jim March's website for all of the information on the wording of the cases.
