# Amicus Curiae Brief — Lawrence v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 558 ## Text OFFICE OF THE CLERK In The Supreme Court of the Gnited States ¢ JOHN GEDDES LAWRENCE AND TYRON GARNER, Petitioners, v. STATE OF TEXAS, Respondent. S On Petition For A Writ Of Certiorari To The Court Of Appeals Of Texas Fourteenth District 4 AMICUS BRIEF OF STONEWALL LAW ASSOCIATION, PARENTS, FAMILIES, & FRIENDS OF LESBIANS & GAYS, TEXAS HUMAN RIGHTS FOUNDATION, LESBIAN/GAY RIGHTS LOBBY, GAY & LESBIAN ADVOCATES & DEFENDERS, NATIONAL CENTER FOR LESBIAN RIGHTS, & HUMAN RIGHTS CAMPAIGN IN SUPPORT OF PETITIONERS o ~ CLAIRE SWIFT KUGLER STEPHEN G. TIPPS EDWARDS & GEORGE, L.L.P. Counsel of Record 5847 San Felipe REBECCA L. ROBERTSON Suite 2375 ROGER DONLEY Houston, TX 77057 Scott F. WENDORF (713) 339-3233 BAKER BOTTS L.L.P. One Shell Plaza 910 Louisiana Houston, TX 77002 (713) 229-1234 (713) 229-1522 (facsimile) Counsel for Amici Curiae COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 See i TABLE OF CONTENTS Page INTERESTS OF AMICI CURIAE.............::c0:c0000e0000s 1 SUMMARY OF THE ARGUMENT. .............:c0000000000 2 CIID iviitcincriiiibicialaitai tiga liieiatatsitaees Blistitieas 3 I. The direct and indirect harms caused by same-sex sodomy laws make gay and lesbian Americans second-class citizens..................... 3 II. The Homosexual Conduct Law and other laws like it simply cannot be justified by appeals to “morality.” ..........ccccrcccresccosssscoesesees 12 COT AIDS cc cccvcececsccveccssccsscssscocescessocscossnnscosssesoes 20 li TABLE OF AUTHORITIES Page FEDERAL CASES Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev'd, 769 F.2d 289 (5th Cir. 1985)..............ccccee0ee 5, 6, 14 Bowers v. Hardwick, 478 U.S. 186 (1986) .................. 3, 4, 6 Brown v. Board of Education, 347 U.S. 483 (1954)............ 4 Childers v. Dallas Police Dep’t, 513 F. Supp. 134 iene iianeinieninesinemnennenensenees ) Gay Student Servs. v. Texas A&M Univ., 737 F.2d Ee ee 8 In re Naturalization of Longstaff, 538 F. Supp. 589 (N.D. Tex. 1982), aff'd, 716 F.2d 1439 (5th Cir. EEE ESO ee 7 Plumley v. Landmark Chevrolet, 122 F.3d 308 (5th EEE 9 STATE CASES Bottoms v. Bottoms, 457 S.W.2d 102 (Va. 1995) ................. i) Ex parte D.W.W., 717 So. 2d 793 (Ala. 1998)... 9 Gryczan v. Montana, 942 P.2d 112 (Mont. 1997)............... 16 Head v. Newton, 596 S.W.2d 209 (Tex. Civ. App.— Houston [14th Dist.] 1980, mo writ) ..............cccccccccceeeeeees 4 Jilek v. Chatman, 613 S.W.2d 558 (Tex. Civ. App.— Beaumont 1981, mo Wit) .............ccccccccscceceeeeeeeeeeereeeeeeeees 7 Kentucky v. Wasson, 842 S.W.2d 487 (Ky. 1992).......... 16, 19 Pruett v. Texas, 463 S.W.2d 191 (Tex. Crim. App. ENS 14 TABLE OF AUTHORITIES — Continued Page STATUTES ALA. CODE § 13A-6-65 (1994) .........ccccccccccccecessssssssssseeseenees 13 FLA. STAT. ANN. § 800.02 (1992) .0...........cccceseeeeeeeeeeeeeeeeeeees 13 IDAHO CODE § 18-6605 (1997) ........cccccccccceceeseersreseeeeeeeenes 13 KAN. CrIM. CopDE ANN. §§ 21-3501(2), 21-3505 (I hv crensascencsncnesssanunesntoesengiosnmnsacnsesssansmnsuesmmenennesenninds 14 LA. REV. STAT. ANN. § 14:89 (1986) ............ccccccccceceeeeeeeeeeees 13 MIss. CODE ANN. § 97-29-59 (1973) ...........cccccccecceeeeeeeeeeenes 14 Mo. ANN. Start. §§ 566.010, 566.090 (1999).................:0e 14 N.C. GEN. STAT. § 14-177 (19938) ...........ccccccceeceeeeeeeeeeeeeeeeees 14 OKLA. STAT. ANN. tit. 21, § 886 (1999) .00........ccccccceeeeeeeeeees 14 S.C. CODE ANN. § 16-15-120 (1998)............cccccccececeeeeeeeeeeees 14 Tex. PEN. CODE ANN. § 21.01 (Vernon 1999) ...............:0000 3 TEX. PEN. CODE ANN. § 21.06 (Vernon 1999)............. passim UTAH CODE ANN. § 76-5-403 (1995) ..........ccccccccceceeeeeeeneeeees 14 VA. CODE ANN. § 18.2-361 (1996)............cccccceesereeeeeeeereeeeees 14 MISCELLANEOUS American Ass’n of Sex Educators, Counselors, and Therapists, Code of Ethics (1993).............cccccccsereereeeeeees 18 American Psychiatric Ass’n, Fact Sheet: Gay and I Cie ccctecccccevesevssensstscccnssencsesssenstnecceeses 18 American Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS Ce TIPU W dctececietvennttusvabitnenettitniibaginibinennninnbiniennss 15 iv TABLE OF AUTHORITIES -— Continued Page American Psychol. Ass’n, Resolution of the Ameri- can Psychological Association Council of Repre- ee tccctrnciciciercneristnstnnninsnsinensnsinnatiniasasniases Jorge C. Armesto, Developmental and Contextual Factors that Influence Gay Fathers’ Parental Competence: A Review of the Literature, 3 Psy- CHOL. OF MEN AND MASCULINITY 67 (2002).................0+. Associated Press, Gay Rights Supporters’ Meeting Site Draws Protest, DALLAS MORNING NEWS, Jan. a Ee eee BLACK’S LAW DICTIONARY (6th ed. 1990) ..0.............ccccccceeeee Bertram J. Cohler & Robert M. Galatzer-Levy, THE COURSE OF GAY AND LESBIAN LIVES: SOCIAL AND PSYCHOANALYTIC PERSPECTIVE 294 (2000) ..............000000. S. Cole et al., Elevated Physical Health Risk Among Gay Men Who Conceal Their Homosexual Iden- tity, 15 HEALTH PSYCHOLOGY 243 (1996)................c0000++ T. Cowan, GAY MEN AND WOMEN WHO ENRICHED Anthony R. D’Augelli, Developmental Implications of Victimization of Lesbian, Gay, and Bisexual Youth, in STIGMA AND SEXUAL ORIENTATION: UN- DERSTANDING PREJUDICE AGAINST LESBIANS, GAY — AND BISEXUALS 187 (Gregory M. Herek ed., Seca iececia icine itiniitineraiteatinaleatintsiniatiacathtaiaiieatae 5, John D’Emillio, Capitalism and Gay Identity, in LESBIANS, GAY MEN, AND THE LAW 26 (William I a, i lt \edentiene F — Vv TABLE OF AUTHORITIES — Continued Robert B. Dean & Harold Richardson, Analysis of MMPI Profiles of Forty College-Educated Overt Male Homosexuals, 28(6) J. CONSULTING Psy- Anne H. Faulkner & Kevin Cranston, Correlates of Same-Sex Sexual Behavior in a Random Sample of High School Students, 88 AM. J. PUB. HEALTH Linda Garnets & Douglas Kimmel, Lesbian and Gay Male Dimensions, in PSYCHOLOGICAL PER- SPECTIVES ON HUMAN DIVERSITY IN AMERICA 143 (Jacqueline D. Goodchilds ed., 1991).............ceccceeeeeeees Anne B. Goldstein, History, Homosexuality, and Political Values: Searching for the Hidden De- terminants of Bowers v. Hardwick, 97 YALE L.J. SETI CITE cncrtiniceicpecsenatennedipemaniunnbengntetmieemenguentenmmemmenests Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panop- tics, 89 CAL. L. REV. 643 (2001) ..............cccceceeeeees 3, 11, John Gonsiorek & J.R. Rudolph, Homosexual Identity: Coming Out and Other Developmental Events, in HOMOSEXUALITY: RESEARCH IMPLICA- TIONS FOR PUBLIC POLiIcy 161-76 (John Gonsiorek & James Weinrich eds., 1991).................cccccccceeeeeeeeeeeeees Stephanie E. Griest, Hate Crimes Act Named for Byrd Heads for House, AUSTIN AM. STATESMAN, 8 Oe 8, A. Nicholas Groth & H. Jean Birnbaum, Adult Sexual Orientation and Attraction to Underage Persons, in SEXUAL ABUSE OF CHILDREN: SE- LECTED READINGS 87 (Barbara McComb Jones et Oo A, Tee icnciennisnesenenenmmmmnensvememmnmnnsmmmnamnacssiacssanes 12 vi TABLE OF AUTHORITIES - Continued David M. Halperin, Is There a History of Sexuality?, reprinted in LESBIAN AND GAY STUDIES READER (Henry Abelove et al., eds., 1993) ..............ccccccccceeeeeeeeees S. Hammersmith & M. Weinberg, Homosexual Identity: Commitment, Adjustment and Signifi- cant Others, 36 SOCIOMETRY 56 (1973) ...........c.cccc0eceeeees Diana Hassel, The Use of Criminal Sodomy Laws in Civil Litigation, 79 TEx. L. REv. 813 (2001).............. Gregory Herek, The Context of Anti-Gay Violence: Notes on Cultural and Psychological Heterosex- ism, 5 J. INTERPERS. VIOLENCE 316 (1990)..................... Gregory M. Herek, Myths about Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133 (1991) ..........cccscccesseeseseeeseereeeeeess G. Herek, Why Tell If You’re Not Asked? Self- Disclosure, Inter-Group Contact, and Heterosexu- als’ Attitudes Toward Lesbians and Gay Men, in Out IN FORCE: SEXUAL ORIENTATION AND THE MILITARY 197, 211 (G. Herek et al. eds., 1996).............. Evelyn Hooker, The Adjustment of the Male Overt Homosexual, 21 J. PROJECTIVE TECH. 18 (1957)............ Polly R. Hughes, Bill Would Ban Gay Texans From Adopting Children, HOUSTON CHRON., Dec. 11, Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.- ll Be Bs GS CI cnczensssncenecenssemseasensnsntiniconsszeseenenes Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41 (July Vii TABLE OF AUTHORITIES — Continued Michael King & Annie Bartlett, British Psychiatry and Homosexuality, 175 BRITISH J. OF PSYCHIA- eget steranaienanaaet anette aera James Krajeski, Homosexuality and the Mental Health Professions: A Contemporary History, in TEXTBOOK OF HOMOSEXUALITY AND MENTAL HEALTH 20 (Robert P. Cabaj & Terry S. Stein eds., Edward O. Laumann et al., THE SOCIAL ORGANIZA- TION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 360 (1994).............cccccccsseccecesseeeeeeeeeeee 4,16 Lesbian and Gay Issues, 38(3) NASW News (Na- tional Ass’n of Social Workers), Mar. 1993, at 15.......... J. Leserman et al., Gay Identification and Psycho- logical Health in HIV-Positive and HIV-Negative Gay Me::, 94 J. APPLIED Soc. PSYCHOLOGY 2193 Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. REV. 103 (2000) ...............+.. 4, 6, William Masters & Virginia Johnson, HUMAN SEXUAL INADEQUACY (1970)..........ccsccccsecccsseecessecsssceeseeees David McWhirter & Andrew Mattison, THE MALE COUPLE: HOW RELATIONSHIPS DEVELOP 262 (1984) ....... Stuart Michaels, The Prevalence of Homosexuality in the United States, in TEXTBOOK OF HOMOSEXU- ALITY AND MENTAL HEALTH, 55-56 (Robert P. Ca- baj & Terry S. Stein eds., 1996) ............cccccccseeeeerereeees TABLE OF AUTHORITIES — Continued Page Bonnie M. Mucklow & Gladys K. Phelan, Lesbian and Traditional Mothers’ Responses to Adult Re- sponse to Child Behavior and Self Concept, 44 PSYCHOL, REP. 880 (1979) .......ccssscseeeeseersrerneenensennenenenes 17 Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025 (1992)........ccceeeeeeeeees 17 Charlotte J. Patterson & Raymond W. Chan, Gay Fathers and Their Children, in TEXTBOOK OF HOMOSEXUALITY AND MENTAL HEALTH 383 (Robert P. Cabaj & Terry S. Stein eds., 1996)..........00008 17 Gary Remafedi, The Relationship Between Suicide Risk and Sexual Orientation: Results of a Popu- lation-Based Study, 88 AM. J. PUB. HEALTH 57 Ginger D. Richardson, Gay Rights Effort Likely to Be Tabled, Ft. WORTH STAR-TELEGRAM, Jan. 19, Marcel T. Saghir et al., Textbook of Homosexuality: III. Psychiatric Disorders and Disability in the Male Homosexual, 126(8) AM. J. PSYCHOL. 1079 (1970)....c.ceccoscersescosssssorsorrensenseresssvensenssnssnssvensscnssensesenss 15 Edward P. Sarafino, An Estimate of Nationwide Incidence of Sexual Offenses Against Children, 58 CHILD WELFARE 127 (1979) ......-:::cccseeerereseeeneenernnsnnnnerenes 17 Pepper Schwartz & Philip Blumstein, AMERICAN COUPLES 193, 201 (1983)........:-:sssseeeeserssereeennsnnnsnnsrensens 5 Texas Dept. of Public Safety, Crime in Texas (1997)......... 10 Bruce Tomaso, Stephen F. Austin Senate Bans Gay Group, DALLAS MoRNING NEws, Nov. 2, 1994, at ix TABLE OF AUTHORITIES - Continued Mike Ward, Gay Groups Urge Veto of Penal Code With Sodomy Law, AUSTIN AM. STATESMAN, May 29, 1993, at B10 ........s-sererererenrersnsnenenenensnsenenensnnnnanansnsnsers 8 Jo Ann Zuniga, Gay Parents Are Fighting Back Against Blackmail, Court Bias, HOUSTON CHRON., June 27, 1994, at BADD... cccccccccscscccccscecsssssonsssoeses 7 — a 1 INTERESTS OF AMICI CURIAE The amici’ share an interest in challenging Texas Penal Code § 21.06, the so-called “Homosexual Conduct Law,” which criminalizes certain sexual conduct for same- sex couples but not heterosexual ones. The amici are the Stonewall Law Association of Greater Houston; Parents, Families, and Friends of Lesbians and Gays of Houston; the Texas Human Rights Foundation; Lesbian/Gay Rights Lobby of Texas; Gay & Lesbian Advocates & Defenders; the National Center for Lesbian Rights; and the Human Rights Campaign.’ Amici are a diverse group of local, state, and national organizations united by a commitment to equality for gay men and lesbians. Their work on behalf of gay and lesbian citizens includes prosecuting impact litigation, lobbying state and federal governments for non- discriminatory laws, educating the public through re- search and information initiatives, and providing legal and other support to persons affected by discrimination on the basis of sexual orientation. The amici know all too well that discrimination is often rationalized by reference to same-sex sodomy laws like the cne Petitioners have asked this’ Court to review. These organizations and their members have a special interest in ensuring that rights guaranteed by the United States Constitution are not undermined by laws like § 21.06, which contains an unwarranted sexual orienta- tion- and sex-based classification and unfairly authorizes government intrusion into the private lives of certain ‘ The parties have consented to the filing of this brief. Counsel for a party did not author this brief, in whole or in part. No person or entity, other than the amici curiae, their members, and their counsel, made a monetary contribution to the preparation or submission of this brief. * More detailed statements of interest from the amici are included in the attached Appendix. 2 citizens. The amici therefore support Petitioners applica- tion for a writ of certiorari. SUMMARY OF THE ARGUMENT It is critically important that the Court review the constitutionality of Texas’s Homosexual Conduct Law, which criminalizes the sexual conduct of same-sex part- ners but permits heterosexual couples to engage in the very same acts without penalty. Such laws, whether or not enforced, have devastating effects on gay and lesbian citizens and their families. By singling out gays and lesbians as sexual criminals, § 21.06 and other same-sex sodomy laws stigmatize gays and lesbians and thereby legitimize discrimination, hatred, and even violence against them. , The huge burden that same-sex sodomy laws impose on the most private aspect of the lives of gay and lesbian citizens also merits this Court’s attention. Although the law targets only same-sex couples, the objective data show that the specific sexual behavior targeted by the law is widely practiced by heterosexuals as well. There is no credible evidence that the sexual expression of gay men and lesbians is somehow deviant or detrimental. To the contrary, there is ample evidence that, as with hetero- sexuals, sexual intimacy is vital to the health and well- being of gay and lesbian adults and is an important component of stable, loving same-sex relationships. Nor is it possible to identify any justification for same- sex sodomy laws that could balance these substantial harms. The traditional justification — that homosexuality poses a moral threat against which society must be de- fended — cannot withstand scrutiny. Despite what their proponents say, same-sex sodomy laws have little to do with “traditional morality.” For example, not until 1974 did Texas first single out gays and lesbians for special condemnation. 3 Because the Homosexual Conduct Law targets a politically disfavored group and imposes unique and substantial harms on that group, the law simply cannot be reconciled with our highest constitutional values. This Court should grant certiorari. ARGUMENT I. The direct and indirect harms caused by same-sex sodomy laws make gay and lesbian Americans second-class citizens. This Court should grant certiorari to consider the constitutionality of the Homosexual Conduct Law, Texas Penal Code § 21.06,° because the harms that the law inflicts on homosexual citizens of Texas are real and substantial. Although courts and commentators have sometimes presumed that sodomy laws are harmless because such laws are rarely enforced,‘ this presumption is fundamentally flawed.* In fact, even when unenforced, * Texas’s Homosexual Conduet Law prohibits certain sex acts only when performed by same-sex partners. That law provides: (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. (b) An offense under this section is a Class C misde- meanor. Tex. PEN. CODE ANN. § 21.06 (Vernon 1999). “Deviate sexual inter- course” is defined as “any contact between any part of the genitals of one person and the mouth or anus of another person” or “the penetra- tion of the genitals or the anus of another person with an object.” Id. § 21.01. * See, e.g., Bowers v. Hardwick, 478 U.S. 186, 198 n.2 (1986) (Powell, J., concurring) (“The history of nonenforcement [of the statute] suggests the moribund character today of laws criminalizing this type of PIivate, aw ce ~~. conduct.”). * See Ryan Goodman, Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics, 89 CAL. L. REV. 643, 648 (2001) (arguing that “the relevant legal actors ... are encouraged to (Continued on following page) 4 criminal laws nevertheless may have profound effects on society. Laws such as Texas’s Homosexual Conduct Law harm gay and lesbian citizens by inhibiting mental and emotional health, providing justification for a wide range of private and official discrimination, and facilitating anti- gay violence.’ First and most fundamentally, the Homosexual Conduct Law and other laws like it interfere with healthy mental and emotional development.’ As scientific and sociological literature on the subject demonstrates,’ sexual expression is a vital component of personal psychological well-being.” It is likewise essential to healthy intimate conclude that sodomy laws do not really matter”); Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103, 104 (2000) (undertaking a case study of sodomy laws to illustrate “how the mere existence of an ‘unenforced’ criminal law creates a-criminal-class whose members are treated as felons, even though they have been convicted of no crime”). * See Leslie, supra note 5, at 103. " Of course, Texas’s Homosexual Conduct Law was enforced in this case, thus negating any comfort that gays and lesbians in Texas may take from the supposed “history of nonenforcement,” Hardwick, 478 U.S. at 198 n.2, of similar statutes in other states. Gay and lesbian Texans presently are subject to an immediate threat of prosecution, which causes fear and anxiety to them as well as their families, friends, colleagues, employers, and others in the heterosexual community. * See Leslie, supra note 5, at 116-21. * This Court considered evidence of such harms in Brown v. Board of Education, 347 U.S. 483 (1954). In Brown, the Court considered the detrimental psychological and emotional effects of school segregation on blacks. The Court looked to psychological and sociological journals to examine the social and personal implications of denying blacks equal educational opportunities. Just as the Court noted that “the impact is greater when [school segregation) has the sanction of the law,” this Court should consider the harmful psychological and social impact that upholding the Homosexual Conduct Law will have on gay and lesbian Americans. See id. at 494. * EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: SEXUAL PRACTICES IN THE UNITED STATES 360 (1994) (Continued on following page) 5 relationships between adults; in both heterosexual and homosexual relationships, sex functions to strengthen the partners’ interpersonal bonds and as an expression of the couple’s feelings for each other.” The Homosexual Conduct Law necessarily takes a psychological toll on gay and lesbian Texans by intruding into this most personal of activities and by penalizing intimate relations so funda- mental to healthy adulthood.” Indeed one federal court has recognized that the Homosexual Conduct Law has a negative effect on the mental health of gay and lesbian Texans. “ (national study by University of Chicago finding persons who have sexual experiences report higher levels of happiness than those who have no sexual experiences); WILLIAM MASTERS & VIRGINIA JOHNSON, HUMAN SEXUAL INADEQUACY (1970); John Gonsiorek & J.R. Rudolph, Homosexual Identity: Coming Out and Other Developmental Events, in HOMOSEXUALITY: RESEARCH IMPLICATIONS FOR PUBLIC POLICY 161-76 (John Gonsiorek & James Weinrich eds., 1991). " See, e.g., PEPPER SCHWARTZ & PHILIP BLUMSTEIN, AMERICAN COUPLES 193, 201 (1983) (“[A] good sex life is central to a good overall relationship.”). ” Td. at 201, 205-06; Davin MCWHIRTER & ANDREW MATTISON, THE MALE COUPLE: HOW RELATIONSHIPS DEVELOP 262 (1984). * Gonsiorek & Rudolph, supra note 10; Anthony R. D’Augelli, Developmental Implications of Victimization of Lesbian, Gay, and Bisexual Youth, in STIGMA AND SEXUAL ORIENTATION: UNDERSTANDING PREJUDICE AGAINST LESBIANS, GAY MEN, AND BISEXUALS 187, 191 (Gregory M. Herek ed., 1998) (describing the psychological conse- quences of stigmatization on gay, lesbian, and bisexual youth). “ As that court explained in Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev’d, 769 F.2d 289 (5th Cir. 1985): (The existence of these criminal laws, even if they are not enforced (like § 21.06), does result in stigma, emotional stress and other adverse effects. The anxieties caused to homosexuals — fear of arrest, loss of jobs, discovery, etc. ~ can cause severe mental health problems. Homosexuals, as criminals, are often alienated from society and institutions, particularly law enforcement officials. (Continued on following page) 6 Moreover, the Homosexual Conduct Law is psycho- logically harmful because it “fuel{s] internalized homopho- bia in some homosexuals, including .. . self-derision, self- hatred, hatred of others in the group, and acting out self- fulfilling prophesies about one’s own inferiority.” And sodomy laws necessarily inhibit — indeed all but turn into self-incrimination - what has been demonstrated to be a psychologically necessary action for many gays and lesbi- ans: that of “coming out” to friends and family by revealing a previously repressed or hidden sexual orientation.” By encouraging gays and lesbians to repress or hide their sexual orientation with the threat of criminal sanction, the Homosexual Conduct Law in fact encourages conduct that may be unhealthy both mentally and physically. "’ Id. at 1130. The district court’s findings were based upon the testimony of a psychiatrist and a sociologist “whose qualifications as experts in the field of homosexuality were outstanding and whose testimony was very credible [and consistent with) the positions adopted by various medical and psychiatric associations.” Jd. at 1129, 1132. * Leslie, supra note 5, at 117 (quoting Brief of Amici Curiae American Psychological Association and the American Public Health Association in Support of Respondents at 7, Bowers v. Hardwick, 478 U.S. 186 (1986) (No. 85-140)). * See, e.g., S. Hammersmith & M. Weinberg, Homosexual Identity: Commitment, Adjustment and Significant Others, 36 SOCIOMETRY 56, 78 (1973) (concluding that “having . . . ‘settled into’ a homosexual identity ... leads to better psychological adjustment as indicated by a more stable, positive self-image, fewer anxiety symptoms, and less depres- sion”); J. Leserman et al., Gay Identification and Psychological Health in HIV-Positive and HIV-Negative Gay Men, 24 J. APPLIED Soc. PSYCHOLOGY 2193, 2205 (1994) (presenting findings that “better psychological health [is] related to gay self-acceptance, participating in gay organizations and groups, socializing with other gay men, and parental disclosure and acceptance of being gay”). " See, e.g., G. Herek, Why Tell If You're Not Asked? Self-Disclosure, Inter-Group Contact, and Heterosexuals’ Attitudes Toward Lesbians and Gay Men, in Out IN Force: SEXUAL ORIENTATION AND THE MILITARY 197, 211 (G. Herek et al. eds., 1996) (noting that “closeted gay women and men may experience a painful discrepancy between their public (Continued on following page) 7 The Homosexual Conduct Law also enables individu- als and institutions to cite the fact that “homosexual conduct” is illegal in order to rationalize all manner of discrimination against gay and lesbian Texans. Because some forms of sexual expression by gays and lesbians are illegal, the argument goes, the people who participate in them are criminals. Employers, bureaucrats, school administrators, lawmakers, litigants, and others routinely use such logic to support disadvantaging gays and lesbi- ans. For example, those who advocate depriving gays and lesbians of full citizenship have claimed that the Homo- sexual Conduct Law justifies closing the public library to gay groups; denying permanent residence to a homosex- ual immigrant;” depriving gay parents of custody of their children;” prohibiting gays from fostering or adopting and private lives,” causing them to feel “they are living a lie,” and further noting that not coming out can “create considerable strain for lesbian and gay male couples, who must hide or deny their relationship to family and friends,” which ultimately “may have a deleterious effect on psychological adjustment”); S. Cole et al., Elevated Physical Health Risk Among Gay Men Who Conceal Their Homosexual Identity, 15 HEALTH PSYCHOLOGY “43 (1996) (finding that “those who concealed the expression of their homosexual identity experienced a significantly higher incidence of cancer . . . and several infectious diseases”). " Associated Press, Gay Rights Supporters’ Meeting Site Draws Protest, DALLAS MORNING News, Jan. 15, 1996, at 8D (describing protesters’ objection to a gay group’s meeting in the San Antonio public library because gays “engage in deviant conduct that is illegal under the state penal code”). ” See, e.g., In re Naturalization of Longstaff, 538 F. Supp. 589, 590- 92 (N.D. Tex. 1982) (rejecting plea of homosexual immigrant because he had violated the Homosexual Conduct Law and therefore lacked good moral character), aff’d, 716 F.2d 1439 (5th Cir. 1983). * Jo Ann Zuniga, Gay Parents Are Fighting Back Against Black- mail, Court Bias, HOUSTON CHRON., June 27, 1994, at All (reporting that common tactic of vilifying homosexual parent in custody battle is “give(n) ... teeth” by § 21.06); cf Jilek v. Chatman, 613 S.W.2d 558 (Tex. Civ. App.—Beaumont 1981, no writ) (relying, in part, on evidence (Continued on following page) children;” banning gay and lesbian student groups on college campuses;” opposing protection of gays and lesbi- ans from discrimination in employment;” and denying gay and lesbian Texans protection under proposed hate crime legislation.” Indeed, such laws routinely are used in civil litigation — particularly in the areas of family law and public em- ployment law — to disadvantage gay people who have never even been charged, let alone convicted of any of father’s admitted bisexuality and history of same-sex relationships to uphold order transferring custody from father to mother). " Polly R. Hughes, Bill Would Ban Gay Texans From Adopting Children, HousTON CHRON., Dec. 11, 1998, at A38 (noting that the sponsor of a bill to prohibit gays from fostering or adopting children in state custody relied on Homosexual] Conduct Law); see also Mike Ward, Gay Groups Urge Veto of Penal Code With Sodomy Law, AUSTIN AM. STATESMAN, May 29, 1993, at B10 (reporting that conservative groups had favored retention of the sodomy ban in the revised penal code because the law serves as a basis for denying gay and lesbian couples the right to adopt). * Bruce Tomaso, Stephen K Austin Senate Bans Gay Group, DALLAS MORNING NEws, Nov. 2, 1994, at 1A (quoting student leader who said that student government voted to ban gay student group because “(w]e felt they're in contradiction to Texas state law”); see also Gay Student Servs. v. Texas A&M Univ., 737 F.2d 1317, 1320 n.4 (5th Cir. 1984) (quoting university administrator's argument that “it would be most inappropriate for a state institution officially to support a (gay) student organization which is likely to incite, promote and result in acts contrary to and in violation of the Penal Code of the State of Texas”). * Ginger D. Richardson, Gay Rights Effort Likely to Be Tabled, FT. WorTH STAR-TELEGRAM, Jan. 19, 1999, at 1 (reporting that city council member killed a measure to add gays and lesbians to Fort Worth antidiscrimination ordinance because it would be at odds with Homo- sexual Conduct Law). * Stephanie E. Griest, Hate Crimes Act Named for Byrd Heads for House, AUSTIN AM. STATESMAN, Mar. 12, 1999, at B10 (quoting state lawmaker who opposed extending protections to gays and lesbians because “the act of homosexuals is illegal” (sic)). crime.” In the area of family law, the presumption that a gay parent is violating a state sodomy law motivates the outcome in many custody decisions.” See, e.g., Ex parte D.W.W., 717 So. 2d 793, 796 (Ala. 1998) (upholding restric- tions on lesbian mother’s visitation rights, reasoning in part that “the conduct inherent in lesbianism is illegal in Alabama” and that the mother’s “[e]xposing her children to such a lifestyle, one that is illegal under the laws of this state and immoral in the eyes of most of its citizens, could greatly traumatize them”); Bottoms v. Bottoms, 457 S.W.2d 102, 108 (Va. 1995) (noting that, although “a lesbian mother is not per se an unfit parent,” “[clonduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth ... ; thus, that conduct is another impor- tant consideration in determining custody”). Similarly, sodomy statutes have been used as a basis for denying public employment to homosexuals.” See, e.g., Childers v. Dallas Police Dep’t, 513 F. Supp. 134, 142-43 n.13 (N.D. Tex. 1981) (“The- overriding reason that the Plaintiff was not hired [as a storekeeper for the property storeroom of the Dallas Police Department] was because he admitted to engaging in homosexual conduct prohibited by Texas penal statutes.”). Thus the mere presence in a state’s criminal code of a statute like the Homosexual Conduct Law is enough to stigmatize gay and lesbian citizens.” * See Diana Hassel, The Use of Criminal Sodomy Laws in Civil Litigation, 79 Tex. L. REV. 813, 813-14 (2001). * See generally id: at 822, 831-36. ” See generally id. at 836. * The stigmatization that follows from criminalizing sex acts between same-sex partners should not be underestimated. In Texas, merely saying that another is homosexual is slanderous per se because of the implication that he or she has violated the Homosexual Conduct Law. Head v. Newton, 596 S.W.2d 209, 210 (Tex. Civ. App.—Houston [14th Dist.) 1980, no writ); see also Plumley v. Landmark Chevrolet, 122 F.3d 308, 310 (5th Cir. 1997) (same). 10 . By stigmatizing gays and lesbians as “outlaws,” the Homosexual Conduct Law and its counterparts in other states also contribute to an atmosphere of hatred and violence that puts gay men and lesbians at risk. As one scholar has observed, “the relationship between homosex- ual sodomy laws and homophobic violence is not merely coincident, but coordinate: the criminalization of homo- sexual sodomy and criminal attacks on gay men and lesbians work in tandem.”” In Texas, for example, gays and lesbians are among the most frequent victims of bias- motivated crimes, including rape, robbery, murder, as- sault, intimidation, and vandalism.” Gay and lesbian youth, in particular, routinely are tormented with epi- thets, bullied, and even attacked by their peers,” often with severe consequences for their physical and mental health.” Sodomy laws facilitate such violence by providing a means for its perpetrators to “rationalize their violence ” Gregory Herek, The Context of Anti-Gay Violence: Notes on Cultural and Psychological Heterosexism, 5 J. INTERPERS. VIOLENCE 316 (1990). * According to recent hate crime statistics, only blacks were more often the victims of hate crimes. Texas Dept. of Public Safety, Crime in Texas (1997); see also Griest, supra note 24, at B10 (recounting personal stories of sister of a gay man who had been shot three times and set on fire; prominent lesbian whose neighbor threatened to kill her; minister who found a rainbow flag burning on church lawn). " For example, one recent study concluded that gay, lesbian, and bisexual teens report “significantly greater exposure to violence” than their peers, are three times as likely to miss school because they feel unsafe, and are twice as likely to have been injured or threatened with a weapon at school. Anne H. Faulkner & Kevin Cranston, Correlates of Same-Sex Sexual Behavior in a Random Sample of High School Students, 88 AM. J. Pus. HEALTH 262, 263-64 (1998). “ D’Augelli, supra note 13, at 189-91; Gary Remafedi, The Relationship Between Suicide Risk and Sexual Orientation: Results of a Population-Based Study, 88 AM. J. PUB. HEALTH 57 (1998) (concluding that homosexual and bisexual teenagers are at greater risk of suicide than other teens). 11 as vigilante enforcement of sodomy laws.”” Such laws further promote anti-gay violence by deterring homosexual victims of bias-motivated crimes from reporting those crimes to the police; “[tJhis underreporting, and the conse- quent lower risk of arrest, encourages attacks against gay citizens.”™ The link between the existence of sodomy laws on the books and the psychological and social harms described above is not merely speculative. Findings from recent empirical research show that laws like the Homosexual Conduct Law do, in fact, cause serious psychological and social harm to individuals, groups, and social institutions, even if unenforced.” One empirical study found that an “unenforced” sodomy law: ¢ “bolstered [gays’ and lesbians’) parents’ fear and hostility towards homosexuality”; * supported “hostility and threats posed by in- dividuals outside the family”;” ¢ “fractured” the “relationship many people have to the law and to the police force in gen- eral,” causing lesbians and gays to not “rely on * Leslie, supra note 5, at 124 (“Many anti-gay attackers perceive themselves as performing legitimate law enforcement by bashing gay people who elude prosecution under state sodomy laws.”). “ Id. at 125. * Goodman, supra note 5. Goodman’s empirical study is an ethnographic study that compared groups of South African gays and lesbians before and after the repeal of South Africa’s sodomy laws. Id. at 647-48. South Africa was chosen because it gave an opportunity for an examination of “the social effects of sodomy laws ... in a legal regime in which sodomy laws existed under similar conditions as they do in the United States.” Jd. at 647. “[Llike their American counter- parts, (the South African sodomy laws) were generally not enforced.” Jd. at 679. * Id. at 692. ” Id. at 694. —=—__—. 12 the police for problems that arise in situations _ tangentially related to their sexual iden- tity;” | * caused “an internal schism within those les- bian and gay individuals who wish to view themselves as law-abiding members of soci- ety;”” and ¢ played “a significant role in strengthening anti-gay ideologies in other institutions of cul- tural authority.” Overturning § 21.06 and similar statutes is essential not only to removing the barriers to full citizenship for gay men and lesbians, but also to changing the environment of hatred and bigotry that leads to violence. This Court should reject any suggestion, therefore, that the Petition- ers’ constitutional challenge is somehow trivial. The direct and indirect harms that laws like the Homosexual Con- duct Law cause to gay and lesbian Americans are immeasurable. Il. The Homosexual Conduct Law and other laws like it simply cannot be justified by appeals to “morality.” Section 21.06, with its discriminatory bias against same-sex intimacy, finds no support in “traditional” notions of morality. To the contrary, it is only relatively recently that such acts have been proscribed solely be- tween people of the same sex.” Before the concept of a * Id. at 708, 732. * Id. at 732. ” Id. at 663. “ Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. REv. 531, 539 (1992) (tracing historical evolution of the term “sodomy” - from a catchall description of all non-procreative sex to the modern (Continued on following page) 13 unique “homosexual identity” gained currency in late nineteenth- and early twentieth-century American cul- ture,” “sexual touchings between men were determined to be licit or illicit according to criteria that applied equally to heterosexual practices. ... Although illicit sexual acts were seen as sinful, immoral, criminal, or all three, before the 1870s illicit sexual acts be\.ween men were not seen as fundamentally different from, or necessarily worse than, illicit acts between a man and a woman.”” Even today, of the thirteen states that outlaw sodomy, nine apply their sodomy bans to both gay and non-gay people alike.“ Only four states, including Texas, punish usage as a synonym for anal intercourse, particularly between two men ~ and documenting the attendant shifts in American law). “ Scholars have observed that, although same-sex relationships have been documented throughout history, the concept of homosexuality (or, for that matter, heterosexuality) as a defining characteristic of one’s identity is relatively recent. Comparing modern Western notions of sexual identity to those of antiquity, for example, one scholar reports: “(TJhe currently fashionable distinction betweer homosexuality and heterosexuality (and similarly between ‘homosexuals’ and ‘heterosexu- als’ as individual types) had no meaning for the classical Athenians: there were not, so far as they knew, two different kinds of ‘sexual- ity’... .” David M. Halperin, Js There a History of Sexuality?, reprinted in LESBIAN AND Gay STUDIES READER (Henry Abelove et al., eds., 1993). Making a similar point about American history, another scholar notes that “colonial society lacked even the category of homosexual or lesbian to describe a person,” though colonial court records refer to incidents of sexual acts between two women or two men. John D’Emillio, Capitalism and Gay Identity, in LESBIANS, GAY MEN, AND THE Law 26, 28 (William Rubenstein ed., 1993). It was only in the 1920s and 1930s that Ameri- can scientific literature began describing homosexuality “as a condition, something that was inherent in a person, a part of his or her ‘nature.’” Id. at 29. “ Anne B. Goldstein, History, Homosexuality, and Political Va. ues: Searching for the Hidden Determinants of Bowers v. Hardwick, 97 YA." L.J. 1073, 1088 (1988). “ See ALA. CODE § 13A-6-65 (1994); FLA. Stat. ANN. § 800.02 (1992); IDAHO Cope § 18-6605 (1997); La. Rev. STAT. ANN. § 14:89 (Continued on following page) 14 solely same-sex conduct,“ and Texas’s ban on “homosexual conduct” is only 28 years old. The legislative history of Texas’s Homosexual Conduct Law demonstrates just how recently discrimination against gay people has surfaced in American law. The first Texas sodomy statute, enacted in 1860, was interpreted to prohibit bestiality and anal sex, whether committed by husband and wife, unmarried heterosexuals, or homo- sexuals. See Baker v. Wade, 553 F. Supp. 1121, 1148 (N.D. Tex. 1982) (citing Tex. Pen. Code art. 342 (1860)), aff'd on other grounds, 743 F.2d 236 (5th Cir. 1984), rev'd, 769 F.2d 289 (5th Cir. 1985); Pruett v. Texas, 463 S.W.2d 191 (Tex. Crim. App. 1970). In 1943, the statute was amended to prohibit all oral and anal sex. Tex. Pen. Code art. 524 (1943). It was not until 1974 that the Texas Legislature repealed the general prohibition on sodomy. That year the Legislature enacted the Homosexual Conduct Law, for the first time criminalizing consensual relations only between people of the same sex. Jd. § 21.06 (Vernon’s 1999). The common misconception that gays and lesbians have “always” been singled out and their sexual relations criminalized is belied by the facts. Defenders of these modern-day same-sex sodomy statutes often resort to the position (as the State of Texas did below) that homosexuality is malum in se, inherently wicked or evil by its very nature.“ But the outdated stereotype of gays and lesbians as perverted and morally corrupt has long been discredited. Modern research (1986); Miss. CopE ANN. § 97-29-59 (1973); N.C. Gew Star. § 14-177 (1993); S.C. CopE ANN. § 16-15-120 (1998); UTAH CopE ANN. § 76-5-403 (1995); Va. Cope ANN. § 18.2-361 (1996). . “ Kan. Crm. Cope ANN. §§ 21-3501(2), 21-3505 (1995); Mo. ANN. Stat. §§ 566.010, 566.090 (1999); OxLa. Star. ANN. tit. 21, § 886 (1999). “ BLAck’s Law DicTIONARY (6th ed. 1990). 15 demonstrates not only that homosexuality is “normal” (i.e., a natural orientation for some people), but also that gays and lesbians are productive, well-adjusted citizens. Substantial scientific and psychologica! research has shown that homosexuality is not an “abnormal” condi- tion.“ Because of these studies, the American Psychiatric Association removed homosexuality as a mental illness from the Diagnostic and Statistical Manual of Mental Disorders in 1973.“ Subsequent research has confirmed that gays and lesbians show no more psychopathology than heterosexuals.” “Indeed, virtually all systemic study “ Recent studies have confirmed that the number of gay men and women is between two and ten percent of the general population. See, e.g., Stuart Michaels, The Prevalence of Homosexuality in the United States, in TEXTBOOK OF HOMOSEXUALITY AND MENTAL HEALTH, 55-56 (Robert P. Cabaj & Terry S. Stein eds., 1996). “ For example, as early as 1957, one landmark study concluded that homosexuality is “within the normal range, psychologically.” Evelyn Hooker, The Adjustment of the Male Overt Homosexual, 21 J. PROJECTIVE TECH. 18, 30 (1957); see also Robert B. Dean & Harold Richardson, Analysis of MMPI Profiles of Forty College-Educated Overt Male Homosexuals, 28(6) J. CONSULTING PSYCHOL. 483, 485 (1964) (finding no significant difference between functioning heterosexuals and homosexuals); Marcel T. Saghir et al., Textbook of Homosexuality: III. Psychiatric Disorders and Disability in the Male Homosexual, 126(8) AM. J. PSYCHOL. 1079, 1086 (1970) (study of 35 unmarried heterosexual men and 89 gay males finds “an absence of striking differences”). “ AMERICAN PSYCHIATRIC ASS’ N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (1973) (“DSM-II”). The World Health Organization followed suit in its International Classification of Diseases, dropping the term homosexuality as a diagnosis in 1992. See Michael King & Annie Bartlett, British Psychiatry and Homosexuality, 175 BRITISH J. OF PSYCHIATRY 106, 106 (1999). ” Gregory M. Herek, Myths about Sexual Orientation: A Lawyer's Guide to Social Science Research, 1 LAW & SEXUALITY 133, 142 (1991) (review of dozens of studies shows no relationship between gay or lesbian sexual orientation and psychopathology); James Krajeski, Homosexuality and the Mental Health Professions: A Contemporary History, in TEXTBOOK OF HOMOSEXUALITY AND MENTAL HEALTH, supra (Continued on following page) 16 has shown sexual orientation to be independent of psychopathology.”” Nor is there any scientific reason to view the sexual practices of gay and lesbian couples as anything other than healthy and normal.” The sexual conduct of gays and lesbians is comparable to that of heterosexuals. The sexual activity that is the subject of the Homosexual Conduct Law is widely practiced by heterosexuals as well as homo- sexuals. Approximately 75% of both heterosexual men and heterosexual women have engaged in oral sex. Twenty-five percent of heterosexual men and 20% of heterosexual women have experienced anal intercourse.” Despite the widespread incidence of this conduct, it is illegal only if engaged in by people of the same sex. Scientists and social workers also have focused on the ability of gay men and lesbians to function in society. Research repeatedly has shown that gay and lesbian parents have the same quality of parenting skills as heterosexual parents and that children raised by gay and note 47, at 20 (finding that, beginning in the 1960s, many studies that used standardized psychological instruments began to provide a “firm research basis for the finding that homosexuality does not equate with psychopathology”). “ BERTRAM J. COHLER & ROBERT M. GALATZER-LEVY, THE COURSE OF GAY AND LESBIAN LIVES: SOCIAL AND PSYCHOANALYTIC PERSPECTIVE 294 (2000). “ For example, the transmission of disease, particularly HIV, is not peculiar to same-sex intercourse. See, e.g., Gryczan v. Montana, 942 P.2d 112, 124 (Mont. 1997) (noting that “heterosexual contact is now the leading mode of HIV transmission in this country”); Kentucky v. Wasson, 842 S.W.2d 487, 501 (Ky. 1992) (rejecting HIV transmission as justification for Kentucky's “sodomy” law because there was no distinction “between male-male and male-female anal intercourse as a method of preventing AIDS”). “ LAUMANN ET AL., supra note 10 at 318-19 (national survey of sexual practices published by the University of Chicago). 17 lesbian parents are as well-adjusted as children raised by heterosexual parents.” “As with heterosexual parents, the ability of gay and lesbian parents to foster the healthy development of their children appears to be more related to unique family dynamics and other contextual factors and less tied to parents’ sexual orientation than society would have us believe.”” Contrary to prevalent myths and stereotypes, moreover, gay men and women are no more likely than heterosexuals to commit child sexual abuse. For example, in a study of 269 children seen for sexual abuse, researchers found that only one adult offender could be identified as a lesbian and that only one offender could be identified as a gay man. In contrast, 77% of abuse against girls and 74% of abuse against boys was commit- ted by the adult male heterosexual partner of a female family member.” Same-sex sodomy statutes cannot be “ See Bonnie M. Mucklow & Gladys K. Phelan, Lesbian and Traditional Mothers’ Responses to Adult Response to Child Behavior and Self Concept, 44 PSYCHOL. REP. 880 (1979) (finding no differences between lesbian and heterosexual mothers in self-concept, maternal attitudes, or responses to slides of children’s behaviors); Charlotte J. Patterson, Children of Lesbian and Gay Parents, 63 CHILD DEV. 1025, 1036 (1992) (review of 30 studies showed “no evidence to suggest that psychosocial development among children of gay men or lesbians is compromised in any respect relative to that among offspring of hetero- sexual parents”); Charlotte J. Patterson & Raymond W. Chan, Gay Fathers and Their Children, in TEXTBOOK OF HOMOSEXUALITY AND MENTAL HEALTH, supra note 47, at 383 (available data suggest that five to ten percent of children of gay fathers, about the same percentage as those raised by heterosexuals, grow up to be gay or bisexual). “ Jorge C. Armesto, Developmental and Contextual Factors That Influence Gay Fathers’ Parental Competence: A Review of the Literature, 3 PSYCHOL. OF MEN AND MASCULINITY 67 (2002) (citations omitted) (explaining further that “children of gay and lesbian parents do not appear to differ from children of heterosexual parents in terms of gender identity development, sex role behavior, sexual orientation, mental! health, self-concept, or intelligence”). “ Carole Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 PEDIATRICS 41, 41-42 (July 1994); see also Edward P. (Continued on following page) 18 justified with the argument that discrimination against homosexuals or proscriptions on consensual, same-sex sexual activity are necessary for the welfare of society.” Lesbians and gay men are a diverse and capable group of people. “[T]he gay male and lesbian community is diverse and multiethnic and differs by gender, socioeco- nomic status, and few generalizations apply across cul- tural borders.... Research on mental health has documented that as individuals, couples, and a social community, gay men and lesbians do not show lower levels of adjustment.”™ Far from posing a threat to society, gay men and lesbians continuously have made unique and significant contributions.” Sarafino, An Estimate of Nationwide Incidence of Sexual Offenses Against Children, 58 CHILD WELFARE 127, 133 (1979) (finding abuse of boys by peer-oriented homosexual males is “scarce”); A. Nicholas Groth & H. Jean Birnbaum, Adult Sexual Orientation and Attraction to Underage Persons, in SEXUAL ABUSE OF CHILDREN: SELECTED READINGS 87, 89 (Barbara McComb Jones et al., eds., 1980) (finding no abuse of boys by peer-oriented homosexual males; instead, the study found that offenders either have been sexually attracted exclusively to children during their lives or are heterosexual males frustrated by their relationships). " See American Psychiatric Ass’n, Fact Sheet: Gay and Lesbian Issues (1996) (calling for nondiscrimination on the basis of sexual orientation); American Psychol. Ass’n, Resolution of the American Psychological Association Council of Representatives (1975), (same); Lesbian and Gay Issues, 38(3) NASW News (National Ass’n of Social Workers), Mar. 1993, at 15 (“NASW will support the repeal of all laws against any form of consensual adult sexual activity.”); American Ass’n of Sex Educators, Counselors, and Therapists, Code of Ethics (1993), (calling for nondiscrimination on the basis of sexual orientation). “ Linda Garnets & Douglas Kimmel, Lesbian and Gay Male Dimensions, in PSYCHOLOGICAL PERSPECTIVES ON HUMAN DIVERSITY IN AMERICA 143, 174-75 (Jacqueline D. Goodchilds, ed., 1991). ” See, e.g., T. COWAN, GAY MEN AND WOMEN WHO ENRICHED THE WORLD (1988) (discussing achievements of various individuals believed (Continued on following page) 19 - As the Kentucky Supreme Court held when striking down Kentucky's ban on consensual sexual relations between same-sex partners: In the final analysis we can attribute no legisla- tive purpose to this statute except to single out homosexuals for different treatment for indulg- ing their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform.... We need not sympathize, agree with, or even understand the sexual preference of homosexuals in order to recognize their right to equal treatment before the bar of criminal jus- tice. Kentucky v. Wasson, 842 S.W.2d 487, 501 (Ky. 1992). Same- sex sodomy laws cannot be squared with the Constitution’s requirement that all citizens receive equal treatment under the law. This Court should grant the writ of certio- rari and address the important constitutional issues raised by these laws and the burdens they impose on gay and lesbian Americans. to be gay, lesbian, or bisexual, including authors, mathematicians, politicians, economists, scientists, and artists). 20 CONCLUSION For the reasons set forth above, the petition for writ of certiorari should be granted. CLAIRE SWIFT KUGLER EDWARDS & GEORGE, L.L.P. 5847 San Felipe Suite 2375 Houston, TX 77057 (713) 339-3233 Dated: August 19, 2002 Respectfully submitted, STEPHEN G. TIPPS Counsel of Record REBECCA L. ROBERTSON ROGER DONLEY Scott F. WENDORF BAKER BOTTS L.L.P. One Shell Plaza 910 Louisiana Houston, TX 77002 (713) 229-1234 (713) 229-1522 (facsimile) Counsel for Amici Curiae App. 1 APPENDIX The Stonewall Law Association of Greater Houston (“Stonewall Lawyers”) is a non-profit bar association founded in 1990 for the purpose of promoting human rights and, in particular, the rights of gay, lesbian, bisex- ual, and transgender citizens of Texas. Its members include attorneys, law professors, law students, and local lawmakers. Many of the organization’s members have been in the position of defending a gay or lesbian client’s rights — in the workplace, at school, as parents — against an assault justified on the grounds that “homosexual conduct” is criminal in Texas. Parents, Families, and Friends of Lesbians and Gays of Houston, Texas (“P-FLAG”) is the local chapter of an international, grassroots organization founded by parents of gays and lesbians to support, educate, and advocate for the families and friends of gays and lesbians, as well as for gays and lesbians themselves. P-FLAG actively promotes the health and well-being of gays and lesbians and their families and friends through monthly meetings, public awareness campaigns, speaker panels for educational and corporate institutions, scholarships to deserving high school seniors and college students, lobbying and testifying at legislative hearings, and individual support via a telephone hotline and the Internet. P-FLAG parents regularly suffer with their children the harms that come from discrimination based on their son’s or daughter's sexual orientation, including harassment, violent crimes, - vandalism, threats, and loss of employment. The mere existence of same-sex sodomy statutes (no matter how rarely enforced) exacerbates these problems, as the stat- utes often are used to rationalize and excuse such dis- The mission of the Texas Human Rights Foundation (the “Foundation”) is to end discrimination against les- bian, gay, bisexual, and transgendered persons, and persons with HIV and AIDS, through public education, App. 2 high impact litigation, and legal assistance. The Founda- tion sponsors a hotline for Texans who have questions about their rights or need legal help because of discrimina- tion, and it publishes a widely distributed resource book- let, AIDS & the Law, in both English and Spanish. As part of its litigation strategy, the Foundation funded two earlier legal challenges to Texas’s same-sex sodomy statute. The Foundation believes that Petitioners’ case presents this Court with an important opportunity finally to resolve whether same-sex sodomy statutes are unconstitutional. The Lesbian/Gay Rights Lobby of Texas (“LGRL”) works toward the elimination of social, legal, and economic discrimination based on sexual orientation through lobby- ing, education and research directed toward the Texas Legislature and other state governmental agencies. LGRL has advocated for the rights of gay and lesbian Texans on issues such as discrimination in the workplace and in public schools and colleges, hate crime legislation, and increased protections and services for people living with HIV. During the 2001 legislative session, LGRL once again lobbied for the repeal of Texas’s Homosexual Conduct Law. Due in part to LGRL’s efforts, the bill to repeal § 21.06 was voted out of the House Criminal Justice Committee, but it was not brought to a vote before the legislative session adjourned. The Texas Legislature does not reconvene until 2003. Gay & Lesbian Advocates & Defenders (“GLAD”) is a public interest law firm founded in 1978. GLAD’s mission is to secure and advocate for the legal rights and interests of lesbians, gay men, and bisexuals, and it does so through litigation and public education in the six New England states. GLAD has considerable legal expertise in the area of civil rights and civil liberties for gay men, lesbians, and bisexuals. Throughout its nearly 25-year history, GLAD has represented individuals who have been charged with violating laws regulating intimate conduct in several states. GLAD challenged the Massachusetts sodomy law App. 3 in GLAD v. Reilly, 436 Mass. 132 (2002) as well as the Rhode Island law, State v. Lopes, 660 A.2d 707 (R.I. 1995). GLAD believes these laws impose a stigma on gay people and that persons charged under these laws face a serious risk of harm to their physical safety as well as to their professional livelihood if they are publicly identified. Since 1977 the National Center for Lesbian Rights (“NCLR”) has advocated for fairness and equality for lesbians under the law. NCLR’s legal advocacy extends to gay men, bisexual and transgendered individuals as well, primarily in the areas of family security and protection, elder law, rights of youth and fair immigration policy. NCLR has witnessed first-hand the ravages of “homosex- ual conduct” laws on the fair and objective application of the law to lesbians and gay men in this country. From child custody cases to employment or protection of youth from harassment, such laws are deployed to deny lesbians and gay men equal treatment under the law. The Human Rights Campaign (“HRC”) is America’s largest gay and lesbian organization, with over 450,000 members nationwide. HRC lobbies lawmakers for fairer laws, educates the public through information initiatives, helps define the national debate on public policies impor- tant to gay and lesbian Americans, and through its bipar- tisan PAC, works to elect fair-minded candidates to public office. HRC is dedicated to ensuring that gay, lesbian, bisexual and transgender Americans can be open, honest and safe at home, at work, and in the community. PETITIONER’S BRIEF © No. 02-102 JAN 16 2003 7 OFFIC & OF THE @LERX. IN THE recat eta a sss. atte ie Supreme Court of the United States JOHN GEDDES LAWRENCE AND TYRON GARNER, Petitioners, Vv. STATE OF TEXAS, Respondent. On Writ of Certiorari to the Court of Appeals of Texas Fourteenth District BRIEF OF PETITIONERS PAUL M. SMITH RUTH E. HARLOW WILLIAM M. HOHENGARTEN Counsel of Record DANIEL MACH PATRICIA M. LOGUE SHARON M. MCGOWAN SUSAN L. SOMMER JENNER & BLOCK, LLC LAMBDA LEGAL DEFENSE 601 13th Street, N.W. AND EDUCATION FUND, INC. Washington, DC 20005 120 Wall Street, Suite 1500 (202) 639-6000 New York, NY 10005 MITCHELL KATINE (212) 809-8585 WILLIAMS, BIRNBERG & ANDERSEN, L.L.P. 6671 Southwest Freeway, Suite 303 Houston, TX 77074 (713) 981-9595 Counsel for Petitioners WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001 5 4) \4 ~ ” +! é hap rl i QUESTIONS PRESENTED Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law - which criminalizes adult, consensual same-sex intimate behavior, but not identical behavior by different-sex couples - violate the Fourteenth Amendment right to equal protection of the laws? Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled? TABLE OF CONTENTS Page QUESTIONS PRESENTED ......cccccccccccccccscccss i ED «cs cbedesisedvcvececscesceseees ii TAB OF AUTIROIEEED oc ccccccccccccccccccccccess V OPINIONS AND ORDERS BELOW ................... l ET dicetceuechedhdevedereseodouceesecess | STATUTORY AND CONSTITUTIONAL PROVISIONS .. 2 STATEMENT OF THE CASE 22... ccc ccccccccccccccees 2 A. Petitioners’ Arrests, Convictions, PGES cevesccccccccceseccvccccccees 2 B. The Homosexual Conduct Law ............. 4 SUMMARY OF ARGUMENT ......................55. 8 TT hits dinbenesoasée senencedseeéeoeecnses 10 I. Section 21.06 Violates Constitutional Rights to Liberty and Privacy Possessed by All PE vccccececcccecccecceccccceccescscoees 10 A. American Adults Have Fundamental Liberty and Privacy Interests in Making Their Own Choices About Private, Consensual Sexual DE hed dadacdunenseseductobsseseces 11 TABLE OF CONTENTS - continued Page 1. Well-Established Protections for Intimate Relationships, Bodily Integrity, and the Privacy of the Home Converge in This Vital PRMD occccccccccecescccecesess 11 2. There Is No Constitutional Exception to Liberty for Gay and Lesbian GCHRREED oc cccccccccccscoscecsccese 16 Ww Objective Considerations Support Recognition of Fundamental Interests FERED oc ccccccccccccccccesccccoocces 19 Texas Cannot Justify Section 21.06’s Criminal Prohibition of Petitioners’ and Other Adults’ Private Sexual Intimacy ...........-.--055: 25 Bowers Should Not Block Recognition and Enforcement of These Fundamental , PPPPPPPRTETELTTITTLI LILLE ELE 29 II. Section 21.06 Discriminates Without Any Legitimate and Rational Basis, Contrary to the Guarantee of Equal Protection ....... 6... ..0eeeee reese eenees 32 A. Section 21.06’s Classification Is Not Rationally Related to Any Legitimate Purpose and Serves Only the Illegitimate Purpose of Disadvantaging One Group ..........-+--- 34 CONCLUSION iV TABLE OF CONTENTS - continued Page The Broader Realities Reinforce This Law’s Affront to Core Principles of Equal ua theo at 40 1. The Homosexual Conduct Law Brands Gay Persons As Second-Class Citizens and Licenses Wide-Ranging Discrimination Against Them ....... 41 2. The Homosexual Conduct Law Reflects and Helps Fuel a Continuing History of Discrimination Against Gay PY 680s ctdulnedeccentauccs 45 Equal Protection Concerns Are Particularly Strong Here Because of the Personal Burdens Imposed by This Criminal Law Vv TABLE OF AUTHORITIES Page CASES Adams v. State, 86 S.W. 334 (Tex. Crim. App. BOG onc ccccccccccccccccccccccccccsescsccscccces 5 Adarand Constructors, Inc. v. Pena, 515 US. 200 (1995)... cece cece c cee cceecceeeetereeneees 30 Agostini v. Felton, 521 U.S. 203 (1997) .......- 0.0055: 29 Atkins v. Virginia, 122 S. Ct. 2242 (2002) ......---+.+> 24 Atwater v. City of Lago Vista, 532 U.S. 318 (QOOT) cece cece cece cece eee eeeecseeneeeeeeeees 27 BE&K Construction Co. v. NLRB, 122 S. Ct. 2390 (2002)... cece cc cccccccccccccceccuccscesscceees 27 Baker v. Wade, 769 F.2d 289 (Sth Cir. 1985) ...........-- 7 Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982), rev'd, 769 F.2d 289 (Sth Cir. 1985) ........ 5, 7,44 Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) ........-.- 12 Board of Regents v. Roth, 408 U.S. 564 (1972) .....-..... 11 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) ..... 2... eee eee 34, 39, 40 Boddie v. Connecticut, 401 U.S. 371 (1971) .........+++: 49 Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) .........- 42 Boutilier v. INS, 387 U.S. 118 (1967) ...... 6... eee e ees 46 Bowers v. Hardwick, 478 U.S. 186 (1986) ........-. passim Brown v. Board of Education, 347 U.S. 483 (BOBO) on ccccccccccccccccccccccsecscsesccces 30, 32 ee eee vi TABLE OF AUTHORITIES - continued | Page Burdine v. Johnson, 66 F. Supp. 2d 854 (S.D. Tex. 1999), aff'd, 262 F.3d 336 (5th Cir. 2001), cert. denied, 122 S. Ct. 2347 (2002) .... 0.00... oe, 44 C.M. v. State, 680 S.W.2d 53 (Tex. App. 1984) .......... 5 Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. STR aarp 22, 23, 24 Carey v. Population Services International, Se UE Ses ecsudedédecavesceccectcsces 10 Childers v. Dallas Police Department, 513 F. Supp. 134 (N.D. Tex. 1981), aff'd, 669 F.2d PEED CS Ob snntsedeccoveccucsécescescce 44 City of Cleburne v. Cleburne Living Center, Inc., SED osackencessscosese 10, 34, 37, 39, 40 City of Dallas v. England, 846 S.W.2d 957 (Tex. PUP EEE G6. neKdenseuececvceccccceseucuisccces 7,44 Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) ...... 24 Commonwealth v. Wasson, 842 S.W.2d 487 Se ES HeNeednddneedekéescaceecuces 22, 23, 33, 35 County of Sacramento v. Lewis, 523 U.S. 833 SEE SUS RGAR Ken NSbNAdadhudebeudevdacccdscceese 19 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) ............ 10, 13, 25, 26, 50 Ex parte D.W.W., 717 So. 2d 793 (Ala. 1998) ........... 42 Dickerson v. United States, 530 U.S. 428 (2000) ......... 30 Doe v. Commonwealth's Attorney for the City of Richmond, 425 U.S. 901 (1976) .... 2.0.0.0... 00.02. 7 Vii TABLE OF AUTHORITIES - continued Page Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. May 15, 2001) ......... cece eee cece ees 23 Dunn v. Blumstein, 405 U.S. 330 (1972) ..... 6... 6c eee 32 Eisenstadt v. Baird, 405 U.S. 438 (1972) .......... 9,12, 41 Frisby v. Schultz, 487 U.S. 474 (1988) .............565. 14 Gitlow v. New York, 268 U.S. 652 (1925) ...........665. 32 Griswold v. Connecticut, 381 U.S. 479 GIUEED ccccccncuccecesscsccnesesececs 9, 10, 12, 14, 20 Gryzcan v. State, 942 P.2d 112 (Mont. 1997) ........ 23, 24 Ex parte H.H., 830 So. 2d 21 (Ala. 2002) .............. 42 Head v. Newton, 596 S.W.2d 209 (Tex. App. 1980) ...... 45 In re ].M., No. SO2A1432, 2003 WL 79330 (Ga. Jan. TED vv ccccccccuscccescccesccccccessssuscene 23 ].P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989) ....... 43 Jegley v. Picado, 80 S.W.3d 332 (Ark. PEED cs cvcecoscecnecccecossocesooss 22, 23, 35, 38, 43 Kyllo v. United States, 533 U.S. 27 (2001) .............. 14 Lewis v. State, 35 S.W. 372 (Tex. Crim. App. BE se oc vcsacccdeccecocncevscctsceseusccesses 5, 21 Lofton v. Kearney, 157 F. Supp. 2d 1372 (S.D. FE ED weececenccescopetcovonsscesocucccesese 18 In re Longstaff, 538 F. Supp. 589 (N.D. Tex. 1982), aff'd, 716 F.2d 1439 (Sth Cir. 1983) ............ 27 Loving v. Virginia, 388 U.S. 1 (1967) ............55. 20, 24 Vill TABLE OF AUTHORITIES - continued Page M.L.B. v. S.L.J., 519 U.S, 102 (1996) ... 6... eae, 48, 49 McLaughlin v. Florida, 379 U.S. 184 (1964) ......... 32, 34 Maher v. Roe, 432 U.S. 464 (1977) 2.0... eee 28 Malloy v. Hogan, 378 U.S. 1 (1964) . 2... eee 32 Meyer v. Nebraska, 262 U.S. 390 (1923) .......... 10, 20, 29 Michael H. v. Gerald D., 491 U.S. 110 (1989) ........ 18, 20 Michigan Organization for Human Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. Poapee Cami Fay DS, TOGO) ance ccccccccesvcvvens 23 Minnesota v. Olson, 495 US. 91 (1990) .. 2... 6. ee. 14 Miranda v. Arizona, 384 U.S. 436 (1966) ............... 30 Mississippi University for Women v. Hogan, SP PEED So chesecectesccccneseseccecces 38 Mitchell v. United States, 526 U.S. 314 (1999) .......... 31 Moore v. City of East Cleveland, 431 U.S. 494 SUOUD CeSdeeveecedenresusessecceccccccecscecens 10 Munoz v. State, 281 S.W. 857 (Tex. Crim. App. GREED wecevsdecsdecaneedeneneresuccesescecesccese 5 Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ....... 47 New York Transit Authority v. Beazer, 440 U.S. PED ob eceniesccenecsccenescccssceceeceeses 41 Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969) ........ 47 O’Connor v. Donaldson, 422 U.S. 563 (1975) ........... 37 1X TABLE OF AUTHORITIES - continued Page One Eleven Wines & Liquors, Inc. v. Division of Alcohol Beverage Control, 235 A.2d 12 Re oer rere 46 One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957), rev'd, 355 U.S. 371 (1958) «0... 6. eee eee eens 47 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) .......-. 30 Palmore v. Sidoti, 466 U.S. 429 (1984) .........5555- 37, 38 Paris Adult Theatre | v. Slaton, 413 U.S. 49 (1973) .... 12, 13 Payne v. Tennessee, 501 U.S. 808 (1991) ......--- 29, 31, 32 Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925) ....... 10, 16, 20, 28 Planned Parenthood of Southeastern Pennsylvania | v. Casey, 505 U.S. 833 (1992) ... 6... cece renee passim Plyler v. Doe, 457 U.S. 202 (1982) ... 6-66. sere eres: 49, 50 Poe v. Ullman, 367 U.S. 497 (1961) .......--. 14, 15, 26, 28 Post v. State, 715 P.2d 1105 (Okla. Crim. App. , 19BG) oo. cccccccccccncccccreccsccccseccesersess Powell v. State, 510 S.E.2d 18 (Ga. 1998) .........-- 23, 24 Prindle v. State, 21 S.W. 360 (Tex. Crim. App. : TODB) cc ccccccccccccccecsecscccccseecccseeeess Railway Express Agency v. New York, 336 U.S. = 106 (1949) 00... cece cece eee eee eee eee nen e ees Rinaldi v. Yeager, 384 U.S. 305 (1966) ...-..- 6+. see ees 34 Roberts v. United States Jaycees, 468 U.S. 609 (19B4) ccc cece eee eee eee erence nena ences 12, 13 ——_—_ — — a — xX TABLE OF AUTHORITIES - continued Page Roe v. Wade, 410 U.S. 113 (1973)... 0.000.000... 10, 20, 28 Romer v. Evans, 517 U.S. 620 (1996) .............. passim San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) .... 0.0... eee cece eee 49 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ... 29 Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) ....... 42 Stanley v. Georgia, 394 U.S. 557 (1969) ..... 0.0.2.0... 14 State v. Ciuffini, 395 A.2d 914 (NJ. Super. Ct. GEN Gs ohn due nEEh uted ExeaSeckséackene 24 State v. Cogshell, 997 S.W.2d 534 (Mo. Ct. App. 1999) .... 7 State v. Morales, 826 S.W.2d 201 (Tex. App. 1992), rev'd on jurisdictional grounds, 869 S.W.2d 941 PM idct na eheuaseunsekenekekidne hdc passim State v. Morales, 869 S.W.2d 941 (Tex. 1994) ............ 8 State v. Smith, 766 So. 2d 501 (La. 2000) .............. 23 T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) ............... 18 Thomas v. Bynum, No. 04-02-00036-CV, 2002 WL 31829509 (Tex. App. Dec. 18, 2002) ......... 44, 45 Troxel v. Granville, 530 U.S. 57 (2000) —.......... passim Turner v. Safley, 482 U.S. 78 (1987)... 2.0... 20 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) ........... 10, 37, 39, 40, 41 Vance v. Bradley, 440 U.S. 93 (1979) ............... 40, 46 Vasquez v. Hillery, 474 US. 254 (1986) ..............-. 31 xl TABLE OF AUTHORITIES - continued Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. DOOD cv nivcindedsevedsdvecssvesssctecsteseeess 42 Washington v. Glucksberg, 521 U.S. 702 (1997) 13, 19, 20, 26 West Virginia State Board of Education v. Barnette, SED UG. GOO CHIE on cc cccccccccccccecss 16, 29, 30, 32 Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648 (1981) ............ 34 _ Whitney v. California, 274 U.S. 357 (1927) ........6055: 37 Williams v. State, No. 98036031 /CL-1059 (Md. Cir. Ct. Balt. City Oct. 15,1998) ............-. 23 STATUTES , is i S| ererrrrrrrrrrrrrr rrr etre 2 U.S. Const. amend. XIV, § 1 .........0 2 eee eee eee 2, 48 Ale. Code § 1SA-S-7laM1) .... cc ccc ccccccccccceces 27 Ale. Codie § ISA-G-GOER) 2... ccc ccccccccccccccccces 6, 27 Ala. Code § 13A-6-65(a)(3) 2.2... 6c eee ee eee es 6 | ff w FePerrrrrrrrerrre Tri rere 22 Rate, Rov. Seat. GS TDBER on cc ccccccccsvcesccccesons 23 Asia. Rev. Stat. § US.1412 2... nccccccccccccccccccess 23 2001 Ariz. Legis. Serv. 382 (West) ............+55. 23, 24 1999 Cal. Legis. Serv. ch. 592 (West) ........-000-0055 31 1971 Colo. Sess. Laws ch.121 ........6 00 e cece eees 43 1991 Conn. Legis. Serv. 91-58 (West) ...........--+55 31 a ak) es Xi TABLE OF AUTHORITIES - continued Page ie diliue in danceaveceasibel rs 23 EE Ee es oe eA 23 Human Rights Act of 1977, D.C. Laws 2-38........... 31 Ee ee ee ee eee 23 Fla. Stat. Ann. § 775.082(4)(b) .................000., 27 SD SIU ob etd codvudencdccckccncdaus 23 Re ee ee ee 6, 27 EE ee 23 1991 Hawaii Sess. Laws Act2 ...................... 31 I ne ee ee Se rk) 23 I rte inh ha Dn 2 Wh) 6, 27 I eS i aL od 27 Faw We Cota. Bik. SPARS 2... cece cc cccccccccces 23 Kan. Stat. Ann. § 21-3505 ....................0.. 22, 27 Kan. Stat. Ann. § 21-3505(a)(1) .........00.0..00000.. 7 Kan. Stat. Ann. § 21-4502(1)(b) .........00000...0... 27 1969 Kan. Sess. Laws ch. 180 .............. cdabnates 22 Bove ey. BOW, MAND, GOB oo. occ ccc ecccccccecccess 22 La. Rev. Stat. Ann. § 14:89 ....................... 6, 27 SS FS) eee 27 Se I GIT ov ccccccccccccccncccccsicces 31 Mass. Gen. Laws ch. 272,§18 ...............000000- 23 xill TABLE OF AUTHORITIES - continued Page Mass. Gen. Laws ch. 277 § 39 ....... 0. cece eee e eens 23 1989 Mass. Legis. Serv. ch. 516 (West) ....---..--5+> 31 Mich. Comp. Laws Ann. § 750.335 .....---6++seeeees 23 Minun. Stat. § 609.34 0.0.0... cece ccc ccc eeceeeeneees 23 1993 Minn. Sess. Law Serv. ch. 22 (West) ............- 31 Miss. Code Ann. § 45-33-23 ....... 0. cece eee ee eee 27 Miles. Code Ann. § 97-291 .........sccseceees 2 Jae 23 Miss. Code Ann. § 97-29-59 2.0... cece eee eee 6, 27 Mo. Rev. Stat. § 558.011 (seuenneses sacs vudnnesen 27, 28 Mo. Rev. Stat. § 566.090 ........- esses eee eens 7,22, 27 1977 Mo. Laws sec. 1, § 566.090 .... 0... 6. cee ee eee 22 1973 Mont. Laws ch. 513...........555 vue euunanees de 22 N.C. Gem. Stat. $14-177 ... ccc cccccccccsvccsnss 6, 27 N.C. Gen. Stat. § 14-184 .......... cece cree eee ceeees 23 ere 27 N.D. Cent. Code § 12.1-20-10 .. 2... . ccc ee eee eee 23 1997 N.H. Laws ch. 108 ......... cece cece cece eees 31 2001 N.M. Laws ch. 32 ........cccccecceccesccceees 24 1991 N.J. Sess. Law Serv. ch. 519 (West) ........--+-- 31 WOO] N.Y. Lawe Gn. 2... cccccccccccccccsccveees 31, 47 1977 Nev. Stat. Ch. 598 .. 1. ccc cece ec cecceecceees 22 UL ek NS rrr rrr 23 XIV TABLE OF AUTHORITIES - continued Page PPA k6.c.ci convkcicacacededetuue 31 Nev. Rev. Stat. Ann. § 201.193 ...................... 23 Soe ee OOD, BR GD ois ivi ovis sc voas cccccecdeccen 7, 27 2002 Okla. Sess. Law Serv. ch 460, § 8 (West) ......... 27 R.I. Gen. Laws § 11-10-1 ...................000005,, 23 1995 R.I. Pub. Laws ch. 95-32 ...............0000005, 31 Se ENE ness Wreiece bu cee ee 23 S.C. Code Ann. § 16-15-60 2.0.00... 0. cc cece cc uee. 23 S.C. Code Ann. § 16-15-80 ............. 0... cece eee. 23 S.C. Code Ann. § 16-15-120 .........0 0... cee, 6, 27 S.C. Code Ann. § 23-3-430 2.0.0.0... cece cece cece, 27 1989 Tenn. Pub. Acts ch. 591 .......0..00...0000005. 22 Tex. Alco. Bev. Code § 11.46(a)(3) ................... 27 ee A! Pee 3 Tex. Occ. Code § 164.051(a)(2)(B) ..............0.00. 27 Tex. Occ. Code § 301.409(a)(1)(B) ...........0..0.... 27 Tex. Occ. Code § 401.453(a) ... 2.00.00. eee eee 27 Ben. Coc. Codie § GGL. ZBMAME) .. wo ccc cc cccccccccss 27 Tex. Occ. Code § 1053.252(2) 0.2.0... cece ccc eae 27 Tem. Coc. Codie § SBG0. BGR 2... ccc ccc cece cccccccece 27 Pe IEEE kcédebicccededetvectclavaucs 6 Wet, Pam, Ce GAR BOD on. cccccccccccccccvecces 2,5 XV TABLE OF AUTHORITIES - continued Page Tex. Pen. Code § 21.06 .......55: cece eee e eee 2, 3, 6, 33 Tex. Pen. Code § 21.07(a)(2) ..... 6.6 cece eee cerns 6 Tex. Pen. Code § 21.08 .........cc cece eee eee reeeees 6 Tar, Pam, Code Q Zh. 21... ccc ccc ccccccccvecvcveccces 6 Tex. Pen. Code § 22.011(a) ........ 5c cece eee e eee e ene 6 Tex, Pam. Code $40.02 .... nc cc cccccccccccsccecccees 6 Tex. Pen. Code art. 342 (1860) ... 6.2... cece eee ees 5, 21 Tex. Pen. Code arts. 499-504 (1954)... 6... eee res 5 Tex. Transp. Code § 512.022(f) .....-- 0-0 eee ee sees: 27 1943 Tex. Gen. Law Serv. ch. 112,§1 .......-6 5000 5,21 1973 Tex. Gen. Laws ch. 399, § 1 «2.2... 52 eee eens 5, 22 1973 Tex. Gen. Laws ch. 399, §3 ...... 5c eee eens 5,22 1993 Tex. Sess. Law Serv. ch. 900 (Vernon) .......--+>. 5 H.B. 687, 2001 Leg. 77th (R) Sess. (Tex.) ..--.-- 600 sees 5 Austin, Tex., City Code, vol. I, tit. VIL... .-.--...e0s. 31 Dallas, Tex., Mun. Ordinance 24927 (May 8, 2002) ..... 31 Fort Worth, Tex., Code of Ordinances, ch. 17, cs ccd teheesenedevecoscccoccces 31 Houston, Tex., City Code, ch. 2, tit. ae 31 Utah Code Ann. § 76-3-204(2) .. 0... 6. cece ee ees freee 27 Utah Code Ann. § 76-5-403(1) «0.6... eee 6, 27 ——— ae a - XVi TABLE OF AUTHORITIES - continued Page Va. Code Ann. § 18.2-10 ........................ 27 Va. Code Ann. § 18.2-344 .......... 0.0000... 23 Va. Code Ann. § 18.2-361 ....................... 27 Va. Code Ann. § 18.2-361(A) ..................... 6 1992 Vt. Acts & Resolves 135 ................... 31 W. Va. Code § 61-8-3 .......000000........... 23 1981 Wis. Laws ch. 112 ..................... 31 MISCELLANEOUS American Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.12 0 a 18 American Psychological Ass’n, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620 (1975) ................ 16, 17 American Psychiatric Ass'n, Position Statement: Psychiatric Treatment and Sexual Orientation (1998), available at http:/ / www.psych.org /archives/980020.pdf ..................... 46 A. Steven Bryant & Demian, Relationship Characteristics of American Gay and Lesbian Couples, 1 J. Gay & Lesbian Soc. Servs. 101 PE AUEREDC0RShee6ecccdédccccécceccccccec 17 John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (1988) ... 21, 45 XVil TABLE OF AUTHORITIES - continued Page R.A. Dyer, Two Men Charged Under State's Sodomy Law, Hous. Chron., Nov. 6, 1998, at Al ....-...+++++: 2 Employers That Offer Domestic Partner Health Benefits, available at http:/ / www.hrc.org/ worknet/dp/index.asp (accessed Jan. 15, 2003) ..... 18 William Eskridge, Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. . 4 L. Rev. 419 (2001) ....0 cece eee eee eee teen eee erees Howard Fischer, Hull OKs Repeal of ‘Archaic’ Sex Laws, Ariz. Daily Star, May 9, 2001, at Al ....... 24, 25 James A. Garland, The Low Road to Violence: Governmental Discrimination as a Catalyst for Pandemic Hate Crime, 10 L. & Sexuality 1 (2001) ...... 46 Anne B. Goldstein, History, Homosexuality, and Political Values, 97 Yale L.J. 1073 (1988) .......---++: John C. Gonsiorek & James D. Weinrich, The Definition and Scope of Sexual Orientation, in Homosexuality: Research Implications for Public Policy (J. Gonsiorek & J. Weinrich eds., 1991) ........ 33 Diana Hassel, The Use of Criminal Sodomy Laws in Civil Litigation, 79 Tex. L. Rev. 813 (2001) ......--. Hidden From History: Reclaiming the Gay and Lesbian Past (Martin Duberman, Martha Vicinus & George Chauncey, Jr. eds., 1990) ......--. Polly Hughes, Bill Would Ban Gay Texans From Adopting Children, Hous. Chron., Dec. 11, 1998, OY. PPPPTTTTTTTT TTT a P —_ XViil TABLE OF AUTHORITIES - continued Pa Dianna Hunt, Plan to Ban Anti-Gay Bias in Fort " Worth Dies, Dallas Morning News, Jan. 20, SOIDONEID So sentticnenesceucavavecsecécecacs.. 44 Nan D. Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531 (1992) 0.0. 42 Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 EE atcndenvcucnceces 15 Jonathan N. Katz, Gay/Lesbian Almanac ees 46 Jonathan N. Katz, Gay American History: Lesbians and Gay Men in the U.S.A. (rev. ed. ere 45, 46, 47 Terry S. Kogan, Legislative Violence Agai gainst Lesbians and Gay Men, 1994 Utah L.Rev.209 ............ 42 Lawrence A. Kurdeck, Sexuality in Homosexual and Heterosexual Couples, in Sexuality in Close Relationships (K. McKinney & S. Sprecher eds., DINED os vcasccscccessesccccscceccccccecccccces, 17 Edward O. Laumann et al., The Social Organization of Sexuality (1994) .......000 00 33 Arthur S. Leonard, Legislative Notes, 1998 Lesbian/ EP NINIIEE baacubnatuseiesesssoneccss..... 44 Lesbians, Gay Men and the Law (William B. Rubenstein ed., 1993) ............................ 45 ee ! pm Leslie, Creating Criminals: The nyunes Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103 a 17, 48 Model Penal Code and Commentaries a ae 6, 45 xix TABLE OF AUTHORITIES - continued National Ass‘n of Social Workers, Policy Statement on Lesbian and Gay Issues, reprinted in Nat'l Ass'n of Social Workers, Social World Speaks: NASW Policy Statements 162 (3d ed. 1994) ............2205. 17 National Gay and Lesbian Task Force, Hate Crime Laws in the U.S., available at http:/ / www.ngltf. org/downloads/hatecrimeslawsmap.pdf (accessed Jan. 14, 2003) .... 2.6... cece cece eees 31 Amit R. Paley, The Secret Court of 1920, Harv. Crimson, Nov. 21, 2002, available at http: / /www.thecrimson.com/article.aspx?ref= 255428 (accessed Jan. 14, 2003) ...... 6. cece 47 People for the American Way Foundation, Hostile Climate: Report on Anti-Gay Activity CTD on cccccccccccccccccvccccccesecesesecseses 43 Letitia A. Peplau, Lesbian and Gay Relationships, in Homosexuality (J. Gonsiorek & J. Weinrich OD, TIFED occcccccvcccscncccsccccecess sencseess 17 Ellen C. Perrin, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (Feb. 2002) ....... 2.6... - eee eeee 18 Richard A. Posner & Katharine B. Silbaugh, A Guide to America’s Sex Laws (1996) ..........66-555 23 Richard A. Posner, Sex and Reason (1992) .......... 13, 22 Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 1991 J.S. Ct. Hist. 13.2.2... 666.66 e ee eee 29 Resolution of the American Psychiatric Ass'n (Dec. 15, 1973), 131 Am J. Psychiatry 497 (1974) ..... 16 OPO XX TABLE OF AUTHORITIES - continued Jed Rubenfeld, The Right of Privacy, 102 Hav. L. TED Stdndubudtinnnksdeddvseecusedcuive 16 William B. Rubenstein et al., Some Demographic Characteristics of the Gay Community in the United States (Williams Project, UCLA School of ed a available at http:/ / www1.law.ucla. u/~erg/pubs/GD/GayDemographics. pdf (accessed Jan. 15, 2003) ” A Vicious Attack on Gay Student, Beaten, Burned and Left for Dead, N.Y. Newsday, Oct. 10, 1998, GROUP oe esansavdnsccadncstneccccaccncceese Between 1969 and 1989, Texas and seven other States legislatively replaced general laws with laws targeting homosexual couples. See infra at 21-22 & * “Homosexual conduct” is a Class C misdemeanor punishable by a fine of up to $500. Tex. Pen. Code §§ 21.06(b), 12.23. > Ala. Code §§ 13A-6-60(2), 13A-6-65(a)(3); Fla. Stat. Ann. § 800.02; Idaho Code § 18-6605; La. Rev. Stat. Ann. § 14:89; Miss. Code Ann. § 97-29- 59; N.C. Gen. Stat. § 14-177; S.C. Code Ann. § 16-15-120; Utah Code Ann. § 76-5-403(1); Va. Code Ann. § 18.2-361(A). 7 note 15. Four of those discriminatory laws have already been judicially invalidated, and one has been repealed. See id. Now only Texas and two other States criminalize same-sex conduct but not identical different-sex conduct by statute, while one other State has reached the same result through judicial construction of a facially evenhanded law.° Similarly, all but a few States have repealed criminal laws prohibiting fornication. Infra note 18. Since its enactment, Section 21.06 has narrowly survived several federal and state constitutional challenges. In Baker v. Wade, a federal district court held that Section 21.06 violates the constitutional rights of privacy and equal protection. 553 F.Supp. at 1125. The court rejected the State’s claimed justifications for Section 21.06 and found that, even when not enforced, the law results in serious harms to gay persons, including employment discrimination. Id. at 1130, 1146-47. Although the Texas Attorney General withdrew the State’s appeal, a divided en banc Fifth Circuit allowed an appeal by an intervenor and reversed, citing the summary affirmance in Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976). Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc). In the early 1990s, Texas Courts of Appeals declared Section 21.06 unconstitutional in two cases exercising state equity jurisdiction. City of Dallas v. England, 846S.W.2d 957 (Tex. App. 1993); State v. Morales, 826S.W.2d 201 (Tex. App. 1992), rev'd on jurisdictional grounds, 869S.W.2d 941 (Tex. 1994). In both cases, the intermediate appellate court struck down the Homosexual Conduct Law under the Texas Constitution and found that the statute inflicted severe harms beyond the direct threat of criminal convictions. See England, 846S.W.2d at 959; Morales, 826S.W.2d at 202. As the State itself stipulated in Morales, Section 21.06 Kansas and Missouri have same-sex-only statutes, Kan. Stat. Ann. § 21-3505(a)(1); Mo. Rev. Stat. § 566.090, although one intermediate court of appeals in Missouri has held that State’s statute applicable only to non- consensual conduct, State v. Cogshell, 997 S.W.2d 534 (Mo. Ct. App. 1999). Oklahoma’s general statute has been construed to exclude different-sex couples. Okla. Stat. tit. 21, § 886; Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986). 8 “brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law.” Id. at 202-03. In 1994, Morales was set aside by the Texas Supreme Court as reaching beyond the power of the State’s equity courts. 869 S.W.2d at 943-47. The court ruled that constitutional review should occur in the context of a criminal prosecution, with final review in the Texas Court of Criminal Appeals. Id.’ In the present criminal case, however, the Court of Criminal Appeals refused to exercise its jurisdiction to review the validity of the law, Pet. App. 1a, 2a, leaving its burdens in effect throughout Texas. SUMMARY OF ARGUMENT As the experience of Lawrence and Garner vividly illustrates, Section 21.06 puts the State of Texas inside its citizens’ homes, policing the details of their most intimate and private physical behavior and dictating with whom they may share a profound part of adulthood. Texas has enacted and enforced a criminal law that takes away - from same-sex couples only - the freedom to make their own decisions, based upon their own values and relationships, about the forms of private, consensual sexual intimacy they will engage in or refrain from. The State defends this law only by saying the majority wants it so. Texas asserts a power of the majority to free itself from state dictates about private, consensual sexual choices, while using the criminal law to condemn and limit the choices of a minority. This law and its application to Petitioners violate both the guarantee of equal protection and fundamental liberties safeguarded by the Fourteenth Amendment. Petitioners explain below why the equality claim and the liberty claim are each well rooted in the Constitution. The Court, however, need not rule on both constitutional violations if it chooses to focus on one 7 Although the Texas Supreme Court did not review England, due to a jurisdictional defect in that court, see Morales, 869 S.W.2d at 942 n.5 (noting dismissal of writ of error in England without reaching merits), the state supreme court's ruling in Morales removed the underpinnings of England. 9 infirmity rather than the other. Petitioners discuss the fundamental liberty claim under the Due Process Clause first because even if the Court were not to reach that issue, a full appreciation of the personal interests affected by Section 21.06 also illuminates and informs the equal protection analysis that follows. Fundamental liberty and privacy interests in adults’ private, consensual sexual choices are essential to the ordered liberty our Constitution protects. The State may not, without overriding need, regiment and limit this personal and important part of its citizens’ lives. More so than in 1986, when Bowers v. Hardwick was decided, it is clear today that such a fundamental right is supported by our basic constitutional structure, by multiple lines of precedent, and by a decisive historical turn in the vast majority of the States to repudiate this type of government invasion into private life. The well-established fundamental interests in intimate relationships, bodily integrity, and the sanctity of the home all converge in the right asserted here. See Griswold v. Connecticut 381 U.S. 479 (1965); Eisenstadt v, Baird, 405 US. 438 (1972); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). That right belongs to all Americans, including gay men and lesbians, and should be shielded from Section 21.06’s unjustified invasion. Much more is needed to outweigh fundamental individual interests than the majority's preferences. Indeed, the Fourteenth Amendment's protection of liberty exists to guard against the very impulse Texas acted on here. Principles of stare decisis do not, in these circumstances, justify adherence to Bowers. Texas also has violated the Fourteenth Amendment's guarantee of equal protection of the laws. The Homosexual Conduct Law creates classes of persons, treating the same acts of consensual sexual behavior differently depending on who the participants are. By this law, Texas imposes a discriminatory prohibition on all gay and lesbian couples, requiring them to limit their expressions of affection in ways that heterosexual couples, whether married or unmarried, need not. The law’s discriminatory focus sends the message that gay people are 10 second-class citizens and lawbreakers, leading to ripples of discrimination throughout society. Such a discriminatory law cannot satisfy even the minimal requirement that a legislative classification must be rationally related to a legitimate State purpose. See Romer, 517 U.S. 620. The bare negative attitudes of the majority, whether viewed as an expression of morality, discomfort, or blatant bias, cannot take away the equality of a smaller group. See id.; United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1%, 3,; City of Cleburne v. Cleburne Living Ctr., Inc., 473 US. 432, 44¢ (1985). ARGUMENT I. Section 21.06 Violates Constitutional Rights to Liberty and Privacy Possessed by All Americans. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, 505 U.S. at 847. It is well settled that the Due Process Clause of the Fourteenth Amendment guarantees the personal liberty of Americans against encroachment by the States, and that this protection of liberty encompasses substantive fundamental rights and interests that are unenumerated. See, e.g., Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Casey, 505 U.S. at 846-51; Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990); Carey v. Population Servs. Int'l, 431 U.S. 678, 684-85 (1977); Moore v. City of E. Cleveland, 431 U.S. 494, 501-03 (1977); Roe v. Wade, 410 U.S. 113, 152-53 (1973); Griswold, 381 U.S. at 482-85; Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S.510,534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923). Giving substance to “liberty” is necessary to maintain the individual freedoms that are the essence of American democracy, while also allowing government action that is justified by the collective good. See Casey, 505 US. at 849-51. Among the liberties protected by the Constitution is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex. This extremely personal 11 sphere implicates three aspects of liberty that have long been recognized as fundamental: the interests in intimate associations, in bodily integrity, and in the privacy of the home. For the State to limit and dictate the intimate choices of American couples in this realm without any substantial justification is repugnant to ordered liberty. Stare decisis does not require continued adherence to the Court's contrary decision in Bowers. A. American Adults Have Fundamental Liberty and Privacy Interests in Making Their Own Choices About Private, Consensual Sexual Relations. 1. Well-Established Protections for Intimate Relationships, Bodily Integrity, and the Privacy of the Home Converge in This Vital Freedom. Being forced into a life without sexual intimacy would represent an intolerable and fundamental deprivation for the overwhelming majority of individuals. Equally repugnant is any form of external compulsion to engage in sexual relations. There should be no doubt, then, that the Constitution imposes substantive limits on the power of government to compel, forbid, or regulate the intimate details of private sexual relations between two consenting adults. All adults have the same fundamental liberty interests in their private consensual sexual choices. This fundamental protection is rooted in three well-recognized aspects of personal liberty - in intimate relationships, in bodily integrity, and in the privacy of the home. These aspects of liberty should not be viewed as “a series of isolated points,” but are part of a “ rational continuum” that constitutes the full scope of liberty of a free people. Casey, 505 U.S. at 848 (quotation marks omitted); see also Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed”). Sexual intimacy marks an intensely personal and vital part of that continuum. The Court has recognized that “choices to enter into and maintain certain intimate human relationships must be secured 12 against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). “[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.” Id. at 619; see also Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545-46 (1987). The adult couple whose shared life includes sexual intimacy is undoubtedly one of the most important and profound forms of intimate association. The Court has rightly recognized that regulation of the private details of sexual relations between two adults sharing an intimate relationship has “a maximum destructive impact upon that relationship.” Griswold, 381 US. at 485. Griswold struck down a law that intruded directly into a inarried couple’s private sexual intimacy - and thus their estmatecdationtie- - by criminalizing the use of contraceptives and allowing intercourse only if accompanied by the risk of . Id. at 485-86. Since Griswold, the Court has recognized that all adults, regardless of marital status or other facets of their relationship, have the same interest in making their own intimate choices in this area. See Eisenstadt, 405 U.S. at 453 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person”) (emphasis in original); Casey, 505 US. at 898 (“The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power” ); id. at 852 (reaffirming Eisenstadt and Griswold). Sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the of human personality.” Paris Adult Theatre I v. Slaton, 413 US. 49, 63 (1973). One’s sexual orientation, the choice of 13 one’s partner, and whether and how to connect sexually are profound attributes of personhood where compulsion by the State is anathema to liberty. Cf. Casey, 505 U.S. at 851.° Thus, the essential associational freedom here is the freedom to structure one’s own private sexual intimacy with another adult. Section 21.06 utterly destroys that freedom by forbidding most sexual behavior for all same-sex couples, whether they are in a committed, long-standing relationship, a growing one, or anew one. State regulation of sexual intimacy also implicates the liberty interest in bodily integrity. “It is settled now . . . that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about... bodily integrity.” Casey, 505 US. at 849 (citations omitted); see also id. at 896 (“state regulation . . . is doubly deserving of scrutiny . . . [where] the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman”). Stated generally, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Glucksberg, 521 U.S. at 777 (Souter, J., concurring) (quotation marks omitted); see also id. at 720; Rochin v. California, 342 US. 165, 166, 173-74 (1952); Cruzan, 497 US. at 278. Control over one’s own body is fundamentally at stake in sexual relations, involving as they do the most intimate physical interactions conceivable. Like the decision whether to continue or terminate a pregnancy, or the decision whether to permit or decline medical procedures, the physical, bodily dimensions of how two persons express their sexuality in intimate relations are profoundly personal. Indeed, consent is a critically important dividing line in legal and societal views about sexuality for the For many adults in modern society, sexual intimacy is an important aspect of forming or building a committed relationship where one does not already exist. See Roberts, 468 U.S. at 618 (Constitution protects “ the formation and preservation” of “highly personal relationships”) (emphasis added); Richard A. Posner, Sex and Reason 349 (1992) (“Consensual sex in whatever form is as we know a method of cementing a relationship”). 14 very reason that individual control over sexual activity is of fundamental importance to every person's autonomy. Texas invades the liberty interest in bodily integrity by dictating that citizens may not share sexual intimacy unless they perform acts approved by the legislature, and by attempting to coerce them to select a sexual partner of the other sex. The liberty interest at issue here also involves the deeply entrenched interest in the privacy of the home. “In the home, [the Court's] cases show, all details are intimate details, because the entire area is held safe from prying governmenteyes.” Kyllo v. United States, 533 U.S. 27, 37 (2001) (emphasis in original); Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight guest receives protection under “everyday expectations of privacy that we all share”). The importance of shielding the home from intrusion goes beyond the Fourth Amendment. In Frisby v. Schultz, 487 US. 474 (1988), for example, the Court relied on the constitutional status of the home in rejecting a First Amendment challenge to an ordinance against picketing targeted at a home. /d. at 484 (“The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order ina free and civilized society” ) (quotation marks omitted). And constitutional protection for the home was an important consideration in Griswold itself. See 381 U.S. at 485 (rejecting intrusion into “sacred precincts of marital bedrooms”). “[I]f the physical curtilage of the home is protected, it is surely as a result of the solicitude to protect the privacies of the life within.” Poe v. Ullman, 367 US. 497,551 (1961) (Harlan, J., dissenting); see also Stanley v. Georgia, 394 U.S. 557 (1969). Even without actual physical entry by the police, Section 21.06 directly invades the privacy of the home by criminalizing the private intimate conduct taking place there. Poe, 367 U.S. at549, 551-52 (Harlan, J., dissenting). But this case also graphically illustrates how laws criminalizing consensual adult sexual intimacy permit invasion of the privacy of the home in the starkest sense. Although Petitioners do not challenge the lawfulness of the police entry into Lawrence’s home in response to a report 15 of an armed gunman, the officers did not withdraw after discovering the report was false. Instead, under license of Section 21.06, they multiplied their intrusion exponentially by scrutinizing the specific intimate acts in which Petitioners were involved, arresting them, hauling them off tojail, and charging them with a crime for which they were later convicted. Denying the existence of a liberty interest in private consensual adult sexual activity would give constitutional legitimacy to the grossest forms of intrusion into the homes of individuals and couples. To investigate this “criminal” conduct, the police could use every investigative method appropriate when ordinary criminal activity, such as drug use or distribution, occurs in the home: obtaining warrants to search for physical evidence of sexual activity; interrogating each member of the couple about the intimate details of the relationship; and surveillance, wiretaps, confidential informants, and questioning of neighbors. That these routine police methods are so repugnant and unthinkable in the context of adult consensual sexual relations is a strong indication that the conduct at issue differs in a fundamental way from ordinary criminal conduct that happens to occur in the home. Cf. Romer, 517 U.S. at 645 (Scalia, J., dissenting) (“’To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution’) (quoting Kadish, The Crisis of Overcriminalization, 374 Annals of Am. Acad. of Pol. & Soc. Sci. 157, 161 (1967)).’ The core liberty interests at stake in this case are a bulwark against an overly controlling and intrusive government. The “fundamental theory of liberty upon which all governments in The argument here in no way implies that ordinary criminal conduct may find refuge in the home. In the present context, “the privacy . of the home is const'*utionally protected not only because the home is seen as a sanctuary, privileged against prying eyes, but also because it is the place where most intimate associations are centered.” Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 634 (1980) (footnote omitted); see also Poe, 367 U.S. at 551 (Harlan, J., dissenting) (“[t]he home derives its pre-eminence as the seat of family life’). 16 this Union repose excludes any general power of the state to standardize,” Pierce, 268 U.S. at 535, or “to coerce uniformity,” West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943). The right of privacy exists because democracy must impose limits on the extent of control and direction that the state exercises over the day-to-day conduct of individual lives. ... People do not meaningfully govern themselves if their lives are . .. molded into standard, rigid, normalized roles. Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 783, 804-05 (1989). 2. There Is No Constitutional Exception to Liberty for Gay and Lesbian Citizens. Gay and lesbian Americans have the same liberty interests as heterosexuals in private consensual sexual intimacy free from unwarranted intrusion by the State. Gay adults, like their heterosexual counterparts, have vital interests in their intimate relationships, their bodily integrity, and the sanctity of their homes. Today, family lives centered on same-sex relationships are apparent in households and communities throughout the country. Likewise, the special interplay between the privacy of the home and individual decisions about sexual expression applies to lesbians and gay men as it does to others. A gay or lesbian sexual orientation is a normal and natural manifestation of human sexuality. A difference in sexual orientation means a difference only in that one personal characteristic. Mental health professionals have universally rejected the erroneous belief that homosexuality is a disease. For example, in 1973 the American Psychiatric Association concluded that “homosexuality per se implies no impairment injudgment, stability, reliability, or general social or vocational capabilities.”"° For gay adults, as for heterosexual ones, sexual 10 Resolution of the American Psychiatric Ass'n (Dec. 15, 1973), 131 Am. J. Psychiatry 497 (1974); accord American Psychological Ass'n, Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 17 expression is integrally linked to forming and nurturing the close personal bonds that give humans the love, attachment, and intimacy they need to thrive. See, e.g., Lawrence A. Kurdeck, Sexuality in Homosexual and Heterosexual Couples, in Sexuality in Close Relationships 177-91 (K. McKinney & S. Sprecher eds., 1991); Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws, 35 Harv.C.R.-C.L. L. Rev. 103, 119-20 (2000). “[M]ost lesbians and gay men want intimate relationships and are successful in creating them. Homosexual partnerships appear no more vulnerable to problems and dissatisfactions than their heterosexual counterparts.” Letitia A. Peplau, Lesbian and Gay Relationships, in Homosexuality 177, 195 (J. Gonsiorek & J. Weinrich eds., 1991). Same-sex relationships often last a lifetime, and provide deep sustenance to each member of the couple. See, e.g., A. Steven Bryant & Demian, Relationship Characteristics of American Gay and Lesbian Couples, 1}. Gay & Lesbian Soc. Servs. 101 (1994). That gay Americans have exactly the same vital interests as all others in their bodily integrity and the privacy of their homes is so plain that it appears never to have been disputed in the law. In contrast, the vital liberty interest that gay adults have in their intimate relationships has not always been recognized. Even a few decades ago, intense societal pressure, including many anti-gay government measures, ensured that the vast majority of gay people hid their sexual orientation - even from their own parents - and thus hid the important intimate relationships that gave meaning to their lives. See infra Point II.B.2. Lesbians and gay men, moreover, were falsely seen as sick and dangerous. See infra at 46. As recently as 1986, it was still possible not to perceive the existence and dignity of the families formed by gay adults. See, e.g., Bowers, 478 U.S. at 191, 195. Today, the reality of these families is undeniable. The 2000 United States Census identified more than 600,000 households (1975); National Ass'n of Social Workers, Policy Statement on Lesbian and Gay Issues, reprinted in Nat'l Ass’n of Social Workers, Social World Speaks: NASW Policy Statements 162, 162-65 (3d ed. 1994). 18 of same-sex partners nationally, including almost 43; vot in Texas. These families live in 99.3% of Americancounties.'' Many state and local goveraments and thousands of private employers have adopted domestic partner benefits or more extensive protections for same-sex couples.” Virtually every State permits gay men and lesbians to adopt children individually, jointly and/or through “secor.d-parent adoptions” that are analogous to stepparent adoptions. See, e.g., Lofton v. Kearney, 157 F. Supp. 2d 1372, 1374 n.1 (S.D. Fla. 2001) (observing that Florida is currently “the only state” “to statutorily ban adoption by gay or lesbian adults”); American Law Inst., Principles uf the Law of Family Dissolution: Analysis and Recommendations § 2.12 cmt. f, at 312 (2002). These and other legal doctrines have secured parental bonds for many of the estimated millions of children in the United States with gay parents. Ellen C. Perrin, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341,341 & n.1 (Feb. 2002) (estimating one to nine million children with at least one lesbian or gay parent); see also, e.g., T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (allowing claim for partial custody by lesbian second parent under in loco parentis doctrine). The reality of these families cannot be disregarded just because they do not match the “nuclear” model of a married couple with their biological children. See, e.g., Troxel, 530 U.S. at 63 (“The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household”); id. at 85 (Stevens, J., dissenting); id. at 98-101 (Kennedy, J., dissenting); Michael H. v. Gerald D., 491 U.S. 110, 124 n.3 (1989) (plurality opinion) (“The family unit accorded traditional respect in our society . . . includes "See William B. Rubenstein, et al., Some Demographic Characteristics of the Gay Community in the United States 3 (Table 1), 5 (Williams Project, UCLA School of Law 2003), available at http://wwwl.law.ucla. edu/~erg/pubs/GD/GayDemographics.pdf (accessed Jan. 15, 2003). "2 See Employers That Offer Domestic Partner Health Benefits, available at http:/ / www.hrc.org/worknet/dp/index.asp (accessed Jan. 15, 2003). 19 the household of unmarried parents and their children”). For gay men and lesbians, their family life - their intimate associations and the homes in which they nurture those relationships - is every bit as meaningful and important as family life is to heterosexuals. Thus, the liberty interest at issue here should not be defined in terms of sexual orientation as the “right of homosexuals to engage in acts of sodomy,” Bowers, 478 U.S. at 191, or reduced in value on that account. If heterosexual adults have a fundamental interest in consensual sexual intimacy, including the choice to engage in oral or anal sex, then so too must homosexual adults. The Due Process Clause itself does not distinguish among classes of citizens, extending the Constitution's shield to the highly personal associations and choices of some, but not protecting the very same associations and choices for others. These liberties are important to and de for all Americans. 3. Objective Considerations Support Recognition of Fundamental Interests Here. Toensure that its decisions in this area are firmly grounded, the Court has sought objective guideposts for the recognition of fundamental liberties. See County of Sacramento v. Lewis, 523 U.S. 833, 857-58 (1998) (Kennedy, J., concurring, joined by O’Connor, J.) (emphasizing that “objective considerations,” including but not limited to “history and precedent,” determine substantive due process interests). Asjust discussed, this Court's precedents and our constitutional structure indicate that the personal liberty protected by the Constitution must include adults’ private choices about sexual intimacy. Foremost among other guideposts has been the history of legislation concerning the matter at hand, from prior centuries through the present. See, e.g., Glucksberg, 521 U.S. at 710-19. In reviewing relevant legal traditions, the Court has made clear that protected liberty interests are not limited to those explicitly recognized when the Fourteenth Amendment was ratified. Casey, 505 U.S. at 847, 850 (“such a view would be 20 inconsistent with our law”); Rochin, 342 U.S. at 171-72 (“To believe that . . .judicial exercise of judgment could be avoided by freezing ‘due process of law’ at some fixed stage of time or thought is to suggest that the most important aspect of constitutional adjudication is a function for inanimate machines and not for judges”). Abundant examples exist of the Court giving meaning tocontemporary truths about freedom, where earlier generations had failed to acknowledge and specify an essential aspect of liberty. See, e.g., Turner v. Safley, 482 U.S. 78, 94-99 (1987); Roe, 410 US. at 152-53; Loving v. Virginia, 388 US. 1,12 (1967); Griswold, 381 U.S. at 482-85; Pierce, 268 U.S. at 534-35; Meyer, 262 U.S. at 399-400. See generally Casey, 505 U.S. at 847-48. Similarly, in cases rejecting asserted liberty interests, the Court's decisions have never rested on past legal history alone. Because constitutional “tradition is a living thing,” Casey, 505 US. at 850 (quotation marks omitted), the Court has always deemed it essential that the relevant legal tradition have continuing vitality today. In Glucksberg, for example, the Court rejected the claimed liberty interest in doctor-assisted suicide based notonly on the common law’s criminalization of assisted suicide, but also on the fact that “the States’ assisted-suicide bans have in recent years been reexamined and, generally” - witha single exception - “reaffirmed.” 521 U.S. at 716; see also Michael H., 491 US. at 127. Even in Bowers, the Court looked not only to criminal laws concerning sodomy in 1787 and 1868, but also to the fact that half the States continued to outlaw such conduct in 1986. 478 U.S. at 192-94." ‘8 The Court has repeatedly rejected the notion that fundamental rights encompass only those recognized at “the most specific level” at the time the Fourteenth Amendment was adopted. Casey, 505 U.S. at 847-59; Michael H., 491 U.S. at 132 (O’Connor, J., joined by Kennedy, J., concurring in part) (the Court's cases have discussed “asserted rights at levels of . generality that might not be ‘the most specific level’ available”). While the Court has sought carefully to describe fundamental liberty interests, as Petitioners do in this case, careful description means neither restriction to the most specific level nor limitation to historically recognized rights. Moreover, to the extent the Court prefers to characterize the asserted right parallel to the historical legal treatment, laws regulating consensual sex between adults, 21 Over the last half century, the Nation has firmly broken from its prior legal tradition of criminalizing many adult choices about private sexual intimacy. Even before 1960, however, the relevant legal tradition is more complicated than an initial examination might reveal. Bowers observed that when the Fourteenth Amendment was ratified, 32 of 37 States had criminal laws against sodomy. 478 U.S. at 192-93. Buta critical feature of those 19th- century and earlier laws was not discussed by the Bowers majority: Almost without exception, such laws historically have applied tocertain specified sex acts without regard to whether same-sex or different-sex couples were involved. See, e.g., Anne B. Goldstein, History, Homosexuality, and Political Values, 97 Yale L.J. 1073, 1082-86 (1988). In addition, actual prosecutions for private intimacy have been exceedingly rare since the Nation’s founding. See John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 66-67 (1988). And the scope of the specific sexual conduct covered has varied over time. See, e.g., Goldstein, 97 Yale L.J. at 1085-86. Texas law isa case in point. A Texas statute adopted in 1860 penalized “the abominable and detestable crime against nature” for all persons, Tex. Pen. Code art. 342 (1860); supra note 2, and an amendment in 1943 extended that ban to oral sex for all persons, 1943 Tex. Gen. Laws ch. 112, § 1. See supra at 5. Only in 1973 did Texas - like a handful of other States in the same period - replace its general ban with one that singled out the sexual intimacy of same-sex couples for criminal prohibition. and state decisions to abolish such regulation, have almost always been written generally - not specifically to apply only to same-sex relationships. ‘* In 1868, at most three of the 32 States with sodomy prohibitions limited them to sexual conduct between two men; even in those three States, however, there is some uncertainty whether heterosexual couples were also covered. See Goldstein, 97 Yale L.J. at 1084 nn.60 & 66. Statutes using the word “mankind” frequently included sexual relations between men and women, as was the case in Texas. See Lewis, 35 S.W. at 372 (“Woman is included under the term ‘mankind’”). In any event, three of 37 States is no legal tradition. 22 1973 Tex. Gen. Laws ch. 399, §§ 1, 3."° Thus, our Nation has no longstanding legal tradition of defining permissible or prohibited sexual conduct in terms of sexual orientation. Rather, the tradition exemplified by actual legislation is one of facial neutrality. The few discriminatory laws singling out lesbians and gay men show the divide that existed in the 1970s and 1980s between the majority's view of its own liberties and its lingering anti-gay attitudes. Most importantly, however, both evenhanded and discriminatory bans on private sexual conduct between consenting adults have been rejected incontemporary times. Since the 1960s, there has been a steady stream of repeals and state judicial invalidations of laws criminalizing consensual sodomy and fornication.’ “The unmistakable trend . . . nationally . . . is to curb government intrusions at the threshold of one’s door and most definitely at the threshold of one’s bedroom.” Jegleyv. Picado, ™~ © See also 1977 Ark. Acts 828 (struck down by Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002)); 1969 Kan. Sess. Laws ch. 180, codified at Kan. Stat. Ann. § 21-3505; 1974 Ky. Laws ch. 406 (struck down by Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992)); 1977 Mo. Laws sec. 1, § 566.090, codified at Mo. Rev. Stat. § 566.090; 1973 Mont. Laws ch. 513 (struck down by Gryczan v. State, 942 P.2d 112 (Mont. 1997)); 1977 Nev. Stat. ch. 598 (repealed by 1993 Nev. Stat. ch. 236); 1989 Tenn. Pub. Acts ch. 591 (struck down by Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996)). © “With nonmarital sex so utterly commonplace, the word fornication, ’ with its strong pejorative connotation, has virtually passed out of the language.” Posner, Sex and Reason 55 (emphasis in original). Likewise, “sodomy” is a term now used rarely outside legal contexts, while oral sex and anal sex are openly discussed in the media and society. Consensual sodomy and fornication have been the only criminal laws in American history where the State has acted solely to limit forms of intimacy by consenting adults. Other crimes relating to sexuality have included additional elements reflecting other state concerns. Adultery and bigamy laws, for example, aim to enforce the legal marriage contract. Incest and under-age sex laws, inter alia, seek to protect vulnerable individuals who may not be capable of true consent. Prostitution and public-sex laws address commercial or public interactions that have a negative impact on the larger community. This case concerns the narrow but important freedom to choose the expressions of sexual intimacy one shares with another adult partner in private, and does not challenge these other types of State regulation. — err 23 80S.W.3d 332, 356 (Ark. 2002) (Brown, J., concurring). By 1986, when Bowers was decided, 26 States had already removed consensual sodomy laws from their criminal codes. See 478 US. at 193-94. Today, only 13 States still have such prohibitions.” Moreover, of those 13 States, Texas and the three others that have discriminatory rules have eliminated criminal prohibitions in this area for the vast majority of adult couples. Similarly, only six States and the District of Columbia still criminalize fornication.” In contrast, when Loving was decided in 1967, 16 '’ Repeal or invalidation of same-sex-only sodomy laws since Bowers: 1993 Nev. Stat. ch. 236 (repealing Nev. Rev. Stat. § 201.193); Jegley, 80S.W.3d 332 (Ark.); Wasson, 842 S.W.2d 487 (Ky.); Gryczan, 942 P.2d 112 (Mont.); Campbell, 926 S.W.2d 250 (Tenn.). Repeal or invalidation of facially evenhanded sodomy laws since Bowers: 2001 Ariz. Legis. Serv. 382 (West) (repealing Ariz. Rev. Stat. §§ 13- 1411, 13-1412); 1993 D.C. Laws 10-14 (amending D.C. Stat. § 22-3502 to exclude private consensual adult conduct); 1998 R.1. Pub. Laws 24 (amending R.I. Gen. Laws § 11-10-1 to exclude conduct with other persons); Powell v. State, 510S.E.2d 18 (Ga. 1998); Williams v. State, No. 98036031 /CL-1059, 1998 Extra LEXIS 260 (Md. Cir. Ct. Balt. City Oct. 15, 1998); Michigan Org. for Human Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. Wayne County July 9, 1990); Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct. May 15, 2001). In Maryland, Michigan, and Minnesota, the States did not appeal the lower court decisions striking down the laws. One state high court upheld a sodomy law against a constitutional challenge in recent years. See State v. Smith, 766 So. 2d 501 (La. 2000). * As with sodomy laws, fornication laws have been struck down as contrary to the right of privacy protected by state constitutions. See, e.g., In re ].M., No. S02A1432, 2003 WL 79330 (Ga. Jan. 13, 2003) (invalidating Ga. Code Ann. § 16-6-18). The fornication laws remaining in seven jurisdictions criminalize any act of sexual intercourse between unmarried persons. See D.C. Stat. Ann. § 22-1602; Idaho Code § 18-6603; Mass. Gen. Laws ch. 272, § 18; id. ch. 277 § 39; Minn. Stat. § 609.34; Utah Code Ann. § 76-7-104; Va. Code Ann. § 18.2-344; W. Va. Code § 61-8-3. Seven other States, although purporting in some cases to proscribe “fornication,” prohibit a narrower category of sexual intercourse between unmarried persons, such as where it is “open and notorious,” 720 Ill. Comp. Stat. 5/11-8; N.D. Cent. Code § 12.1-20- [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A07. Public record. Not legal advice.