Baker v. Wade and the Long Struggle to Overturn the Texas Homosexual Conduct Law

In its landmark 2003 decision in Lawrence v. Texas, the United State Supreme Court invalidated the Texas homosexual conduct law, which since 1973 had prohibited “deviate sexual intercourse” between members of the same sex. The vast majority of those who hailed the decision praised the “pioneering” actions of John Lawrence and Tyron Garner, the two men arrested for having sex in a private residence in the late 1990s, and their attorneys who challenged the constitutionality of the law. It was as if there had been no history worth remembering of activists who challenged the law before Lawrence. This paper will investigate the most significant case challenging the Texas homosexual conduct law before Lawrence v. Texas. In 1979, Dallas resident Don Baker, a public school teacher and openly gay man, filed suit in a federal court against Dallas County District Attorney Henry Wade claiming that the DA’s enforcement of the Texas homosexual conduct law violated the constitutional rights of gay and lesbian citizens. The case, Baker v. Wade, marked the first time a federal court struck down a state homosexual conduct law. Although the Supreme Court eventually upheld state sodomy laws in 1986, Baker v. Wade was indispensable for laying the legal groundwork for the Lawrence decision. I will argue that in order to understand fully the significance of Lawrence v. Texas, we must come to terms with earlier challenges like Baker v. Wade.