Skip to Content

Out of Place: Gender, Sex and Criminalization in Post-War Texas Cities

Before Lawrence V. Texas

Before Lawrence V. Texas: The Making of a Queer Social Movement
by Wesley Phelps

Austin: University of Texas Press 2023.
304 pp. $45.00 Hardcover.

Reviewed by
John Mckiernan-Gonzalez

On November 7, 1972,  Texas voters overwhelmingly endorsed the Texas Equal Rights Amendment, making the statement “equality under the law shall not be denied or abridged because, of sex, race, color, creed or national origin” part of the articles of the Bill of Rights in the Texas constitution. In Before Lawrence v. Texas: The Making of a Queer Social Movement, historian Wesley Phelps traces key social and legal campaigns by many LGBTQIA activists to be included as equal under the law in Texas. In the process of documenting, synthesizing, and sharing a near-inside story of how queer individuals and liberal advocacy organizations expanded the meaning of due process in Texas, Phelps dispels the notion that criminal sodomy laws are a holdover of a Jim Crow past. The Texas Legislature ratified the code at the center of Before Lawrence—article 21.06 in the Model Penal Code—in 1974, two years after The Texas Equal Rights Amendment became constitutional law; legislators narrowed the previous 1943 code—article 524—to same-sex partners. The rise of 21.06 in the Texas Criminal Code speaks to the policy power of a powerful coalition pushing to keep homosexuality and LGBTQIA communities stigmatized, excluded, and banned from public spaces and the promises of citizenship. Phelps’s discussion of gay rights mobilization after WWII also tracks this increasingly sophisticated backlash to the legal victories won in Texas. Before Lawrence v. Texas speaks to a broadening of citizenship for all in the campaign to overthrow Jim Crow in Texas, particularly as this civil rights-led social movement helped open up space in courts and city councils to challenge both the homophobic conduct of police departments and broaden access to public service and equal employment to more communities in Texas.  

   Before Lawrence starts in what constitutes the before times for 20th century historians: the nineteenth century. Phelps demonstrates the presence of same-sex affection and desire in Texas through the criminal prosecution of sodomy cases in jurisdictions in North, South, Central, and West Texas. Phelps uses the record of these sodomy cases to highlight the challenges facing the criminal definition of sodomy. Legislators expressed unease at describing what could be considered sodomy; many easy legislative definitions—any sexual contact or labor not dedicated to procreation—could ensnare the majority of dalliances that happen among consenting adults. Despite these ambiguities, the stigma of criminal sodomy allowed police to harass consenting adults—mostly men—in urban and rural areas. The arrest record also demonstrates that all across Texas, men and some women went out of their way to spend intimate time with each other, demonstrating yet again that even in nineteenth century Texas, same sex attraction existed without an established LGBTQIA community infrastructure and in the face of widely shared prohibitions. 

   Criminal reform efforts in New Deal Texas contributed to making “sodomy” a state-level criminal matter. In 1943, Article 524 defined oral and anal sex as sodomy and prohibited same-sex and opposite-sex partners from performing these acts. With this reform, prosecutors found it easier to convict people; lawyers faced a more challenging road to appealing these verdicts. Some districts visibly committed to prosecuting what they called sodomy act, with the Dallas Police Department registering 450 arrests between 1963 and 1969. However, the broad definition helped establish challenges to the law on universalizing grounds. In February 1969, Alvin Buchanan challenged his convictions for sodomy on privacy grounds, because the policing made it impossible for “homosexuals to be treated as their heterosexual equals.” Henry McCluskey, his lawyer, argued that article 524 made it impossible for couples and consenting adults to enjoy the privacies outlined in the Griswold v. Connecticut decision. In February 1970, supported by the ACLU and his good friend Frank Kameny, McCluskey convinced Federal District Court Judge Sarah Hughes to invalidate article 524 for the threat it posed to the privacy of couples and marriages. The Texas legislature responded to the district-level invalidation of article 524 in Buchanan v. Batchelor by drawing up Article 21.06 which reduced the charge of sodomy from a two-to-ten-year long sentence to a misdemeanor and applied the charge only to people who engaged in these activities with someone of the same sex. The liberal legislative push to create a Model Penal Code also enabled the targeting of Texas lesbian and gay communities for “homosexual conduct,” deep in the heart of the Rights Revolution. In a deeply compelling chapter, Phelps demonstrates how police departments, city agencies, family courts, and city councils used the broad prohibition of same-sex intimacy under article 21.06 to harass, intimidate, and humiliate their fellow Texans and forbid them from participating in public service. Even as people in LGBTIA communities used reforms such as the 1965 Civil Rights Act and the Texas Equal Rights Amendment to challenge their banishment from the bounds of respectability, Article 21.06 provided a tool for interested agencies to exclude people from the basic entitlement of citizenship. Mary Jo Risher, a lesbian and a divorcee, lost custody of her children because her son and ex-husband claimed the law would always make her a potential criminal and thus ineligible for parenting. In one particularly troubling hearing, the judge used Risher’s family participation in the Houston area YWCA as evidence of her unfitness for parenting.  

   The next three case studies explore the legal mobilization against Article 21.06.  Here, the plaintiffs themselves craft compelling narratives. Phelps reconstructs why three of the litigants’ lives provided a compelling case for the public impact of lives hammered by homophobia and legal anti-gay discrimination, done in ways that helped create empathy among judges hearing these challenges. One case study weaves through Donald Baker. He grew up in the Pentecostal church, briefly attended UT Austin, but left college to enlist in the military to find a space where he could work with his feelings for other men. After his honorable discharge, Baker attended a teaching college in Ithaca and through conversations with other students while working a student center job at Cornell University, he found a way to reconcile his faith and his desire, realizing that “true peace came only when I realized my self-worth and that god loved me as I was.”   He graduated and went as close to home as possible to start work as a teacher in Dallas ISD. His friends in the Texas Gay Alliance and the Texas Human Rights Foundation convinced him that he would be an ideal challenge to 21.06.  The subsequent case Baker v. Wade led to the invalidation of 21.06 by Judge Sarah Hughes at the district court level, potentially leading to a state-wide decision. In Dallas, clubs called for a “Gayteenth” celebration, simultaneously marking an affinity and a disregard for Black Texas culture. The celebration lasted two years. The fifth circuit stayed the decision and, when the case moved up toward the Supreme Court, the court chose to hear Bowers V. Hardwick.  

   The subsequent cases—Morales v. Texas and England v. Dallas—leaned on the Texas Constitution instead of the Supreme Court. Linda Morales, one of the five plaintiffs in Morales, reflected on the broad impact of this law. She told the court, “I was born a lesbian… Just as being Hispanic cannot be changed, my sexual orientation cannot be changed. When I discovered that my desire for women was considered illegal in Texas, I was shocked and hurt. I began to understand that hatred and discrimination toward lesbians and gay men was deeply affirmed and rooted in our legal system.” District Court Judge Thom Davis ruled for the plaintiffs, declaring article 21.06 an unconstitutional intrusion on privacy, leaving the state-wide implications open to appeal to the Texas Supreme Court. This decision helped other cases, allowing Mica England to have Dallas judges and the Dallas City Council end the Dallas Police Department prohibition on the employment of gays and lesbians. As she told the Dallas Morning News, “I cannot wait to start my police job,” an understatement given that she came out to her interviewers in person when she first applied for a job with the Dallas PD. When the Texas Supreme Court decided on a 5-4 majority that civil courts could not decide on the constitutionality of relatively unenforced criminal statutes, they left the constitutionality of 21.06 in limbo, pending a constitutional challenge to a criminal conviction. 

   Telling the story of when liberalism mattered to communities mobilizing in post-WWII Texas is a tall order. Figuring out how to research and communicate a queer angle on civil rights mobilizing in the second-biggest state in the Union adds another complicating dimension to the choices and commitments necessary to putting together this tale. Phelps decided to follow the law: that is, identify key cases that had state-wide implications; build biographies for the key players in these cases; socially and politically contextualize each legal campaign; explain why these cases and these communities helped lay the groundwork for subsequent supreme court cases and their political and cultural impact. The cases he chose foreground the impact of anti-sodomy article 21.06 in the Texas Criminal Code on the cultures shaping the basic due process rights for people in Texas. The people that accompanied the four cases—Buchanan v. Batchelor, Baker v. Wade, Morales v. Texas and England v. City of Dallas—are true Texas characters whose stories also speak to rural-urban migration, the importance of faith, the impact of Chicano and African American mobilizing, sunbelt urban expansion, and the internationalization of Texas cities. By true, I mean Texans can also be naturalizing immigrants, people who spent chunks of their working life outside of Texas, job-seeking Oklahomans, evangelicals as well as Chicana LGBTQ activists. That is, people like you and me also shape the history of Texas. The strength of Before Lawrence lies in the richness of the record preserved by archivists across Houston and Central Texas, the recognition of people who maintained their record and shared their memories of public challenges to the criminalization and exclusion of their many communities. The power of this narrative lies in the precedents they created that may be useful for the uneven legal landscape Dobbs v. Jackson has brought into view. The promise of this project lies in the way the experiences and campaigns detailed in Before Lawrence overlap with many other social justice and civil rights movements in Texas. Wesley Phelps should be read alongside other iconic monographs such as Robert Chase’s We Are Not Slaves, Max Krochmal’s Blue Texas, Dwight Watson’s Race and the Houston Police Department, Jan Reid’s Let The People In and Marissa Moss’s Her Country, scholars that seek to explain liberalism’s relative successes in Texas through the strength of grassroots mobilizing. Last I checked, the Texas Equal Rights Amendment is still in the Texas Constitution.

John Mckiernan-González is the Director of the Center for the Study of the Southwest, the Jerome and Catherine Supple Professor of Southwestern Studies, and an Associate Professor of History at Texas State University.  His first book, Fevered Measures: Public Health and Race at the Texas-Mexico Border, 1848-1942 (Duke, 2012), treats the multi-ethnic making of a U.S. medical border in the Mexico-Texas borderlands. Born in the U.S., he grew up in Colombia, Mexico, and the U.S. South and brings a migrant eye and experience to his projects in public history, medical history, and Latino studies.