The federal judge from Dallas who recently died proved he was way ahead of the curve on LGBT rights with his decision in Baker v. Wade
The recent death of retired U.S. District Judge Jerry Buchmeyer reminded me of the rich and sometimes painful history of the North Texas lesbian, gay, bisexual and transgender community.
It also caused me to fear that a piece of that history might pass virtually unnoticed unless those of us who lived or observed pieces of it take the responsibility to pass it on.
During the local mobilization of the Million Gay March this summer, more than one young organizer and activist commented that they did not know the history of our community.
Because the repository of local LGBT history, the Phil Johnson Historic Archives and Library, is operated by Resource Center Dallas, I feel an obligation to note Judge Buchmeyer’s contributions not only as a reminder of justice and courage, but also as an inspiration to those who will continue the struggle to secure equal rights for our community.
Just one day before Judge Buchmeyer’s death, tens of thousands of people celebrated Pride in Dallas, even though the majority of the LGBT universe (with a few exceptions, including Fort Worth), holds their Pride events in June, commemorating the rebellion at the Stonewall Inn on June 28, 1969.
So, why do we celebrate in September? Among the answers: To remember Judge Buchmeyer’s decision finding unconstitutional the Texas law that made "deviate sexual intercourse" (aka "homosexual conduct") between consenting adults a criminal offense.
Texas Penal Code 21.06 was used to prosecute alleged sexual behavior but also had a chilling effect on the everyday lives of gays and lesbians who, deemed to be criminals, were precluded from jobs such as teachers, police officers and health care workers that screened for criminal offenses.
Judge Buchmeyer’s ruling in Baker v. Wade was issued in August 1982, and the organizers of Dallas’ Pride parade moved the local celebration to September to commemorate the ruling, as well as take advantage of expected cooler weather.
The legal impact of Judge Buchmeyer’s opinion was short-lived, however.
The case was appealed to the 5th Circuit Court of Appeals, which reversed the district court’s ruling in 1985.
Judge Buchmeyer’s line of reasoning won out eventually, as the U. S. Supreme Court overturned all remaining state "sodomy laws" in another Texas-based case, Lawrence v. Texas, in 2003.
Judge Buchmeyer was ahead of his time in understanding that the right to privacy and equal protection applies to homosexuals as well as others in this country.
Dallas LGBT leaders were involved in both of these historic cases.
The plaintiff, Don Baker, died in 2000.
He was a DISD teacher and served as president of Dallas Gay and Lesbian Alliance. Documents related to the case, including Baker’s records and notes, are housed in the Phil Johnson Archives.
While it would be nice if we could look back at Judge Buchmeyer’s decision and the string of judicial decisions through Lawrence as some distant era of repression, the truth is that 21.06 continues to be used as a weapon against our community.
Just this summer, two gay male customers of an El Paso restaurant were thrown out for kissing in public.
According to press reports, when the police showed up to investigate, they stated that "homosexual conduct" is a criminal offense.
While this is shocking, given that Lawrence became the law of the land more than SIX years ago, there might be a reason why the police claimed that — not a good reason, but a reason.
The Texas Commission on Law Enforcement Standards and Education (TCLOSE), the state agency that oversees training for law enforcement officers in Texas, still references 21.06 in its training guidelines. Even though the Texas Penal Code, both in printed paper form and online, correctly states that 21.06 was overturned by Lawrence in 2003, TCLOSE training materials include 21.06 without explicitly mentioning it was overturned.
Judge Buchmeyer understood that the protections granted in our Constitution apply to all people. Perhaps the best way we can honor his legacy is to remain vigilant.
As philosopher George Santayana wrote, "Those who cannot remember the past are condemned to repeat it."
The history book on 21.06 is not closed. The Texas Legislature needs to remove the overturned law from the Penal Code, and law enforcement needs proper instruction.
While we mourn the loss of a beloved public servant in Judge Buchmeyer, let us honor him by keeping his story alive as we secure the rights to which we are entitled.
Cece Cox, J.D., is associate executive director for LGBT community services at Resource Center Dallas.
This article appeared in the Dallas Voice print edition October 2, 2009.