Baker v. Wade
Encyclopedia
Baker v. Wade 563 F.Supp 1121 (N.D. Tex. 1982), rev'd 769 F.2nd 289 (5th Cir. 1985)(en banc) cert denied 478 US 1022 (1986) is a federal lawsuit challenging the legality of the sodomy law of the state of Texas. Plaintiff Donald Baker contended that the law violated his rights to privacy and equal protection. After a victory at trial, an appellate court reversed the lower court's decision and in the wake of its decision in Bowers v. Hardwick
the Supreme Court of the United States
refused to review it.
adopted a revised Penal Code which included section 21.06: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The law carried a maximum penalty of $200 but the existence of the law served to stigmatize LGBT
residents of Texas as criminals. In 1976 in Doe v. Commonwealth's Attorney of Richmond (425 US 901) the United States Supreme Court upheld the sodomy law of the Commonwealth of Virginia
as constitutional. A number of gay rights organizations in Texas sought to repeal the state's sodomy law legislatively but were unsuccessful. The Texas Human Rights Foundation (THRF), composed largely of attorneys from across the state, believed that the Doe case failed because the plaintiff was anonymous, and so conducted a search to find someone to be the named (and visible) plaintiff in a test case
to challenge the law on Constitutional grounds before the federal court in Dallas, Texas. Donald F. Baker, president of the Dallas Gay Alliance and a Dallas teacher who had lost his job with the Dallas Independent School District
after coming out in a television interview, agreed to be the sole plaintiff, and the suit was filed on November 19, 1979, in the United States District Court for the Northern District of Texas
. The suit named Dallas County District Attorney Henry Wade
and Dallas city attorney Lee Holt as defendants and, because THRF wanted any affirmative ruling to apply statewide, included each of the 1,085 city, county and district attorneys in the state as part of the defendant class. The Texas Attorney General's
office intervened on behalf of the state, but no one else in the defendant class intervened.
The case went to trial before US District Judge Jerry Buchmeyer
in June 1981 and lasted two days. On August 17, 1982, Buchmeyer ruled in favor of Baker on Constitutional grounds, finding that the law violated Baker's right to personal privacy and equal protection under the laws.
filed an appeal on November 1, 1982. Following an election later that month, the new Attorney General, Jim Mattox
, withdrew the appeal. The Texas Constitution
invests the power to represent the state in civil litigation solely with the Attorney General, so withdrawing the appeal ordinarily would have ended the case. However, district attorney Danny Hill, recently elected to represent Potter County, along with a group of physicians called "Dallas Doctors Against AIDS", petitioned the court to force the state to appeal. Judge Buchmeyer denied the petition, as did a panel of the Fifth Circuit Court of Appeals
, but the full Fifth Circuit voted to hear the appeal of the Potter County District Attorney. On August 26, 1985, the Fifth Circuit voted 9—7 to reverse the district court. On October 23 the Court denied Baker's request for a re-hearing.
On January 18, 1986, Lawrence Tribe filed a writ of certiorari
on Baker's behalf with the United States Supreme Court. The attorneys general of 26 states, including 10 states with sodomy laws on the books, urged the Court to take the case, arguing that the Court should require federal courts to respect the decision of a state attorney general to withdraw an appeal. By the time the writ was filed, the Supreme Court had accepted Bowers v. Hardwick
, a challenge to the sodomy law of Georgia, which criminalized all sodomy regardless of the gender or marital status of the individuals involved in the conduct. The Court upheld Georgia's sodomy law on June 30, 1986, ruling that there was no privacy right to engage in sodomy when the state's penal code made such conduct a violation. Baker raised privacy issues but it also raised an equal protection claim, but the Supreme Court on July 7 denied certiorari.
The Texas sodomy law persisted until 2003, when the Supreme Court struck it and every remaining state anti-sodomy law down in Lawrence v. Texas
.
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
refused to review it.
Background
In 1974, TexasTexas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
adopted a revised Penal Code which included section 21.06: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The law carried a maximum penalty of $200 but the existence of the law served to stigmatize LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
residents of Texas as criminals. In 1976 in Doe v. Commonwealth's Attorney of Richmond (425 US 901) the United States Supreme Court upheld the sodomy law of the Commonwealth of Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
as constitutional. A number of gay rights organizations in Texas sought to repeal the state's sodomy law legislatively but were unsuccessful. The Texas Human Rights Foundation (THRF), composed largely of attorneys from across the state, believed that the Doe case failed because the plaintiff was anonymous, and so conducted a search to find someone to be the named (and visible) plaintiff in a test case
Test case
A test case in software engineering is a set of conditions or variables under which a tester will determine whether an application or software system is working correctly or not. The mechanism for determining whether a software program or system has passed or failed such a test is known as a test...
to challenge the law on Constitutional grounds before the federal court in Dallas, Texas. Donald F. Baker, president of the Dallas Gay Alliance and a Dallas teacher who had lost his job with the Dallas Independent School District
Dallas Independent School District
The Dallas Independent School District is a school district based in Dallas, Texas . Dallas ISD, which operates schools in much of Dallas County, is the second largest school district in Texas and the twelfth largest in the United States.In 2009, the school district was rated "academically...
after coming out in a television interview, agreed to be the sole plaintiff, and the suit was filed on November 19, 1979, in the United States District Court for the Northern District of Texas
United States District Court for the Northern District of Texas
The United States District Court for the Northern District of Texas is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in Dallas, Texas with divisions in Fort Worth, Amarillo, Abilene, Lubbock, San Angelo...
. The suit named Dallas County District Attorney Henry Wade
Henry Wade
Henry Menasco Wade , was a Texas lawyer who participated in two of the most notable U.S. court cases of the 20th century, the prosecution of Jack Ruby for killing Lee Harvey Oswald and the U.S. Supreme Court's decision legalizing abortion, Roe v. Wade...
and Dallas city attorney Lee Holt as defendants and, because THRF wanted any affirmative ruling to apply statewide, included each of the 1,085 city, county and district attorneys in the state as part of the defendant class. The Texas Attorney General's
Texas Attorney General
The Texas Attorney General is the chief legal officer of the State of Texas.The department has offices at the William P. Clements State Office Building at 300 West 15th Street in Austin.-History:...
office intervened on behalf of the state, but no one else in the defendant class intervened.
The case went to trial before US District Judge Jerry Buchmeyer
Jerry Buchmeyer
Jerry L. Buchmeyer was a United States District Judge for the Northern District of Texas in Dallas, Texas.Born in Overton, Texas in 1933, Buchmeyer received an Associates' Degree from Kilgore College in 1953, his Bachelor's Degree from University of Texas in 1956, and his LLB degree from...
in June 1981 and lasted two days. On August 17, 1982, Buchmeyer ruled in favor of Baker on Constitutional grounds, finding that the law violated Baker's right to personal privacy and equal protection under the laws.
Appeals
Wade and Hill decided not to appeal but Attorney General Mark WhiteMark White
Mark Wells White is an American lawyer, who served as the 43rd Governor of Texas from January 18,1983-January 20,1987.-Biography:...
filed an appeal on November 1, 1982. Following an election later that month, the new Attorney General, Jim Mattox
Jim Mattox
James Albon Mattox was a Dallas lawyer and Texas Democratic politician who served three terms in the United States House of Representatives and two four-year terms as state Attorney General, but lost high profile races for Governor in 1990, the U.S. Senate in 1994, and again as attorney general...
, withdrew the appeal. The Texas Constitution
Texas Constitution
The Constitution of the State of Texas is the document that describes the structure and function of the government of the U.S. State of Texas.Texas has had seven constitutions: the constitution of Coahuila y Tejas, the 1836 Constitution of the Republic of Texas, the state constitutions of 1845,...
invests the power to represent the state in civil litigation solely with the Attorney General, so withdrawing the appeal ordinarily would have ended the case. However, district attorney Danny Hill, recently elected to represent Potter County, along with a group of physicians called "Dallas Doctors Against AIDS", petitioned the court to force the state to appeal. Judge Buchmeyer denied the petition, as did a panel of the Fifth Circuit Court of Appeals
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
, but the full Fifth Circuit voted to hear the appeal of the Potter County District Attorney. On August 26, 1985, the Fifth Circuit voted 9—7 to reverse the district court. On October 23 the Court denied Baker's request for a re-hearing.
On January 18, 1986, Lawrence Tribe filed a writ of certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
on Baker's behalf with the United States Supreme Court. The attorneys general of 26 states, including 10 states with sodomy laws on the books, urged the Court to take the case, arguing that the Court should require federal courts to respect the decision of a state attorney general to withdraw an appeal. By the time the writ was filed, the Supreme Court had accepted Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, a challenge to the sodomy law of Georgia, which criminalized all sodomy regardless of the gender or marital status of the individuals involved in the conduct. The Court upheld Georgia's sodomy law on June 30, 1986, ruling that there was no privacy right to engage in sodomy when the state's penal code made such conduct a violation. Baker raised privacy issues but it also raised an equal protection claim, but the Supreme Court on July 7 denied certiorari.
The Texas sodomy law persisted until 2003, when the Supreme Court struck it and every remaining state anti-sodomy law down in Lawrence v. Texas
Lawrence v. Texas
Lawrence v. Texas, 539 U.S. 558 , is a landmark United States Supreme Court case. In the 6-3 ruling, the Court struck down the sodomy law in Texas and, by proxy, invalidated sodomy laws in the thirteen other states where they remained in existence, thereby making same-sex sexual activity legal in...
.