Amicus Curiae Brief — Lawrence v. Texas
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No. 02-102
IN THE
Supreme Court of the United States
JOHN GEDDES LAWRENCE AND TYRONE GARNER.
Petitioners.
Vv.
TEXAS,
Respondent.
On Writ of Certiorari to the
Texas Court of Appeals Fourteenth District
BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW
PROFESSORS BRUCE A. ACKERMAN, JACK M.
BALKIN, DERRICK A. BELL, JR., PAUL BREST,
EVAN CAMINKER, ERWIN CHEMERINSKY, DAVID
D. COLE, DAVID B. CRUZ, THOMAS C. GREY,
PAMELA S. KARLAN, KENNETH L. KARST,
ANDREW KOPPELMAN, SANFORD LEVINSON,
FRANK MICHELMAN, WILLIAM B. RUBENSTEIN,
STEVEN H. SHIFFRIN, GEOFFREY R. STONE, AND
KENJI YOSHINO IN SUPPORT OF PETITIONERS
WILLIAM B. RUBENSTEIN PAMELA S. KARLAN
405 Hilgard Avenue Counsel of Record
Los Angeles, California 90095 559 Nathan Abbott Way
(310) 206-7145 Stanford, California 94305
(650) 725-4851
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT
I. BECAUSE OF THE IMPORTANT INDI-
VIDUAL INTERESTS INVOLVED, THIS
' CASE CALLS FOR A LESS DEFERENTIAL
FORM OF RATIONALITY REVIEW
A. This Court Has Been More Likely to Find
Equal Protection Violations When Sig-
nificant Liberty Interests Are Involved,
Even When Those Interests Are Not Inde-
pendently Considered to Be Fundamental ...
. Statutes That Criminalize Private, Con-
sensual Homosexual Activity Interfere
With Significant Liberty Interests
. 1. Section 21.06 Interferes with the Inti-
x a mate Relationships of Lesbians, Gay
Men, and Bisexuals
. Section 21.06 Undermines the Parental
Relationships of Lesbians, Gay Men,
and Bisexuals
. Section 21.06 Restricts Employment
| Opportunities For Lesbians, Gay Men,
$ and Bisexuals
. Section 21.06 Threatens the Sanctity of
the Homes of Lesbians, Gay Men, and
Bisexuals
il ili
TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES
Page CASES Page
Il. SECTION 21.06 IS NOT RATIONALLY Adarand Constructors, Inc. v. Pena, 515 U.S.
RELATED TO A LEGITIMATE GOVERN- EE ee ae 5-6
MENT INTEREST .........::0eseeseeeeeeeerserseeneneenees 18 Anderson v. Martin, 375 U.S. 399 (1964)............... 6-7
A. Section 21.06 Does Not Serve a Legitimate Atwater v. City of Lago Vista, 532 U.S. 318
Government Purpose........sseeereeeeeeereeeeeeerses 19 (GEES Porsexensonsnensusssnssesevensseestessnecesatescnescssescensevsens 26-27
Barnes v. Glen Theatre, Inc., 501 U.S. 560
B. Even If This Court Were To Find the SE eS 20
Presence of a Legitimate State Interest in Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex.
This Case, Section 21.06 Still Would Not 1982), rev'd, 769 F.2d 289 (Sth Cir. 1985) (en
Be Rationally Related to Achieving That banc), cert. denied, 478 U.S. 1022 (1986).......... 4,23
PULPOSE........csceseseerereseensnennssnesensenetnenennenenenes 22 Baker v. Wade, 769 F.2d 289 (Sth Cir. 1985) (en
" banc), cert. denied, 478 U.S. 1022 (1986)......... 25
. “ oe aaa ge toony pea Bearden v. Georgia, 461 U.S. 660 (1983).............
Expressions of Constitutionally Imper- Blackburn v. Snow, 771 F.2d 556 (1st Cir. 1985). 28
missible AMiMUS..........sseeeessssssseeessesesee 24 Bowers v. Hardwick, 478 U.S. 186 (1986) ........... 2, 10
, Braschi v. Stahl Assoc. Co., 543 N.E.2d 49 (N.Y.
2. Vigorous Enforcement of Laws Like Ae Nn ae 13
Section 21.06 Would Involve Consti- Bush v. Gore, 531 U.S. 98 (2000) ....ccccccccccsssssseeoee 3,8
tutionally Repugnant Methods............... 26 City of Cleburne v. Cleburne Living Center, Inc..
seemnesentocutene 30 473 U.S. 432 (1985)............cccceeseeeeeeeed, 4, 9, 10, 18, 20
CONCLUSION ........csscccsssssseserereseresesereosnnees City of Dallas v. England, 846 $.W 24 (Tex. Cr
APPENDIX. .............cccccccsccesssesscssceosecsccsesessrenssssesssosnnsees la | en maeraeieneealaaemarins 16
City of Renton v. Playtime Theatres, Inc., 475
8 ee 20
Connecticut v. Doehr, 501 U.S. 1 (1991) .occcc.. 3
Cruzan v. Director, Missouri Dept. of Health,
nae 13
Department of Agriculture v. Moreno, 413 U.S.
ee 4,19
Department of Housing and Urban Development
v. Rucker, 122 S.Ct. 1230 (2002) .......cccccccccceeeees 23
Dunn v. Blumstein, 405 U.S. 330 (1972) ....cccccccce.
Eisenstadt v. Baird, 405 U.S. 438 (1972).............. 12-13
iv
TABLE OF AUTHORITIES—Continued
Page
Ex parte D.W.W., 717 So.2d 793 (Ala. 1998)........ 14-15
Griswold v. Connecticut, 381 US. 479
( 19GS) ..ccccceccesecesecesessecessoosscnsssossssssnssonssooooossess 18, 27-28
Head v. Newton, 596 S.W.2d 209 (Tex. Ct. Civ.
App. 1980) .....ccecvsseressenesnsnsnesnsnsnsnenenennensnenensnees 25, 27
Hill v. Colorado, 530 U.S. 703 (2000) ..........-e0-e0+ 12
Hunter v. Underwood, 471 U.S. 222 (1985).......... 22
Kyllo v. United States, 533 U.S. 27 (2001)... 17, 28
Larson v. Valente, 456 U.S. 228 (1982) ........-v0-0+ 12
Lassiter v. Department of Social Services, 452
U.S. 18 (19B1)........cccceccccccsscsscssecssesersssnsnsessneesees 9
Lawrence vy. State, 41 S.W.3d 349 (Tex. Ct. App.
BOON ) cccecocecececceccsoccccsscnssessessosssnsssosssesssoososooosoooses 20
M_L.B. v. S.LJ., 519 U.S. 102 (1996) .......cccceeeneees 3,8,9
Mary Beth G. v. City of Chicago, 723 F.2d 1263
(7th Cir. 1983)........cccccccccccscesssrseeneseeneresnenssensenees 28
Mathews v. Eldridge, 424 U.S. 319 (1976).......00++ 3
Mayer v. City of Chicago, 404 U.S. 189 (1971).... 9
Meyer v. Nebraska, 262 U.S. 390 (1923) ...--.----0++ 15
Michael M. v. Superior Court of Sonoma County,
450 U.S. 464 (1981) ....cccccccerseeesseeenenenennenennnnnene 20-21
Mincey v. Arizona, 437 U.S. 385 (1978)....----s-+e-0+ 17
Mississippi Univ. for Women v. Hogan, 458 US.
T1B (19B2) ..cccccocccscccsccccccsrcccesssccssssosorscssscsssossososs 6
Moore v. City of East Cleveland, 43\ U.S. 494
(1977) ..ccccorecescescccscescecseessssoesocssscsessosssssoosscsoooooses 13
National Coalition for Gay and Lesbian Equality
v. Minister of Justice, 1998 S.A.L.R. (S. Afr.
Const. Ct. Oct. 9, 1998) .......cccccceeeeeeeenennnenennnnnees 18
Nordlinger v. Hahn, SOS U.S. 1 (1992) ...-.-0---0-000 10
O’ Connor v. Donaldson, 422 U.S. 563 (1975)... 4, 19-20
Palmore v. Sidoti, 466 U.S. 429 (1984) ......c-eceeeees 21
Paris Adult Theatre I v. Slaton, 413 US. 49
(1973) ..cccceccccscccccccccescecsrcesosssssscesoosesonssssoososoes 13, 17-18
ee
Vv
TABLE OF AUTHORITIES—Continued
Page
Payton v. New York, 445 U.S. 573 (1980)... 17
Plumley v. Landmark Chevrolet, 122 F.3d 308
_~ -naaeagieD 25,27
Plyler v. Doe, 457 U.S. 202 (1982)...................... 3.7.8
Poe v. Ullman. 367 U.S. 497 (1961 )ooccscceeeseoscee.., 24, 26
olice Department Chi
US. 92 a oe se 3
Powell v. State, 510 S.E.2d 18 (Ga. 1998)... 12
Railway Express Agency, Inc. v. New York 336
U.S. 106 (1949) .occcecccccssssesssceeeeeeeeseece... 12
Reed v. Reed, 404 U.S. 71 (1971)... 7
Robinson v. California, 370 U.S. 660 (1962) Pe 22
Roe v. Roe, 324 §.E.2d 691 (Va. 1985)... 15
Rodriques v. Furtado, 950 F.2d 805 (ist Cir.
Shien . 2
Romer v. Evans, 517 U.S. 620 ( “=
Salinas v. Breier, 695 F.2d 1073 (7th Cir. 1982 )
cert. denied, 464 U.S. 835 (1983)................... . 2
San Antonio Independent School District y ;
Rodriguez, 411 U.S. 1 (1973) coco... =<
Shahar v. Bowers, 114 F.3d 1097 (1ith Cir.
1997) (€M ANC) oceecccccscsessessssssseeeeeeeesssccce. ——
Stanley v. Georgia, 394 U.S. 557 ( 1969) cocccocssooee 17,21
State v. Morales, 869 S.W.2d 941 (Tex. 1994)... 24
Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997)......... 28
Thomas v. Bynum, 2002 WL 31829509 (Tex. Ct.
App. 4th Dist., Dec. 18, 2002) .occccccccccsscscsssssssee 25
Tucker v. Tucker, 910 P.2d 1209 (Utah 1996)... 15
United States v. Husband, 2002 USS. App .
LEXIS 22851 (7th Cir., Nov. 4, 2002) _ 28
United States v. Virginia, 518 U.S. 515 (1996)... 6
Winston v. Lee, 470 U.S. 753 (1985)... 28-29
vi
TABLE OF AUTHORITIES—Continued
STATUTES Page
Ala. Code 1975, § 13A-6-65(a)(3)..........cccccceeeeeees 15
Ala. Code 1975, § 13A-6-G0(2) .........cccccccceeeeeeeneees 15
Colo. Const. Art. Il, § 30b (“Amendment 2”) ....... 10, 22
DO ) EE 17
Tex. Occupational Code, § 164.051(a)(2)(B)........ 17
Tex. Occupational Code, § 301.409(a)(1)(B)........ 17
, — EEE 26
. 8, fh) | 12
Tex. Penal Code § 21 .06............cc.sccccssssersrsserrereneees passim
Tex. Penal Code § 21.07(a)(2).............sececccceeeseeeees 21
Ne 21
Tex. Penal Code § 22.01 1(a)( 1) ...........ccccccceeeeeeeeees 21
Tex. Penal Code § 22.01 1(a)(2) .........ccccccceeeeeeeenees 21
Tex. Penal Code, art. 524 (adopted 1943) ............. 11
OTHER MATERIALS
Developments in the Law—Sexual Orientation
and the Law, 102 Harv. L. Rev. 1508 (1989)... 14
Robert C. Farrell, Successful Rational Basis
Claims in the Supreme Court from the 1971
Term Through Romer v. Evans, 32 Ind. L.
Rev. S57 (IDID) ncccccccseccesescrsccesssnvescssssssvessssesseses 6
Suzanne B. Goldberg, Equality Without Tiers, 57
U. Miami L. Rev. ____ (2003) .......-cccereeeeenenennes 6
Malcolm M. Feeley, The Process Is the Pun-
Le 26
Diana Hassel, The Use of Criminal Sodomy Laws
in Civil Litigation, 79 Tex. L. Rev. 813 (2001). 16
Nan D. Hunter, Life After Hardwick, 27 Harv.
C.R.-C.L. L. Rev. 531 (1992) .....cccccceeeeneenennnens 11
Vii
TABLE OF AUTHORITIES—Continued
Christopher Leslie, Creating Criminals: The
Injuries Inflicted by “Unenforced” Sodomy
Laws, 35 Harv. C.R.-C.L. L. Rev. 103 (2000)... 16
Model Penal Code §213.2 Comment 2 (1962,
Comments Revised 1980) .........cccccccccccccccecceoeeee. 27, 29
William B. Rubenstein, Cases and Materials
on Sexual Orientation and The Law (2d ed.
1997)
INTEREST OF AMICI CURIAE
The law professors named below teach and write about
constitutional law. Both basic and advanced constitutional
law courses, as well as a wide range of scholarship on con-
stitutional issues, regularly consider the rights of gay men and
lesbians. Amici are among the many scholars who have spent
a considerable amount of time thinking, writing, and teaching
about the issues before the Court in this case. A selected list
of their scholarship on these issues is contained in an
Appendix to this brief.
Based on this expertise, and on careful review of this
Court's decisions, amici argue in this brief that Texas Penal
Code § 21.06 violates the equal protection clause of the
Fourteenth Amendment. Amici join this brief solely on their
own behalf and not as representatives of their universities. '
Amici are:
Bruce A. Ackerman, Sterling Professor of Law and
Political Science, Yale University
Jack M. Balkin, Knight Professor of Constitutional Law
and the First Amendment, Yale University
Derrick A. Bell, Jr., Visiting Professor of Law, New
York University :
Paul Brest, Professor of Law Emeritus, Stanford
University
Evan Caminker, Professor of Law, University of
Michigan
Erwin Chemerinsky, Sydney M. Irmas Professor of
Public Interest Law, Legal Ethics and Political Science,
University of Southern California
' The parties have consented to the filing of this brief. Their letters of
consent have been filed with the Clerk of this Court. Pursuant to this
Court's Rule 37.6, none of the parties authored this brief in whole or in
part and no one other than amici or counsel contributed money or services
to the preparation and submission of this brief.
2
David B. Cruz, Professor of Law & History, University
of Southern California
David D. Cole, Professor of Law, Georgetown
University
Thomas C. Grey, Nelson Bowman Sweitzer & Marie B.
Sweitzer Professor of Law, Stanford University
Pamela S. Karlan, Kenneth & Harle Montgomery
Professor of Public Interest Law, Stanford University
David G. Price & Dallas P. Price
Selameat pring oly University of California at
Los Angeles ae ;
, Associate Professor o w an
Polina ‘Soeee eee George C. Dix . Professor of
Constitutional Law, Northwestern University
Sanford Levinson, W. St. John Garwood & W. St. John
Garwood Jr. Regents Chair, University of Texas
Frank Michelman, Robert Walmsley University
Professor, Harvard University
William B. Rubenstein, Professor of Law, University of
California at Los Angeles
Steven H. Shiffrin, Professor of Law, Cornell University
Geoffrey R. Stone, Harry Kalven Jr. Distinguished
Service Professor, University of Chicago
Kenji Yoshino, Associate Professor of Law, Yale
University
SUMMARY OF ARGUMENT
e petition for certiorari presents the question whether
Pd Hardwick, 478 U.S. 186 (1986), should be over-
ruled. Amici support petitioners’ position. But this Court
need not reach that question—nor hold that heightened
scrutiny is required for statutes that discriminate on the basis
of sexual orientation—in order to conclude that Texas Penal
Code § 21.06 violates the equal protection clause. The statute
—
3
fails conventional equal protection analysis because it is
not rationally related to the achievement of a legitimate
State interest.
In equal protection cases, the nature of the interests
affected by a particular classification helps determine the
nature of this Court’s review. When classifications burden
rights protected by the Constitution as “fundamental,” this
Court applies heightened judicial scrutiny. See, e.g., Police
Department of Chicago v. Mosley, 408 U.S. 92 (1972). When
classifications restrict the enjoyment of other liberty interests
unequally, by restricting the freedom of some citizens, but not
of others, the nature and importance of the interest involved
also weighs in the Court’s constitutional appraisal.” In cases
such as Plyler v. Doe, 457 U.S. 202 (1982), City of Cleburne
v. Cleburne Living Center, 473 U.S. 432 (1985), Romer vy.
Evans, 517 U.S. 620 (1996), M.L.B. v. S.LJ., 519 U.S. 102
(1996), and Bush v. Gore, 531 U.S. 98 (2000), this Court has
found violations of the equal protection clause in part because
of the way in which the challenged state action infringed on
individuals’ ability to participate in the “transactions and
endeavors that constitute ordinary civic life in a free society.”
Romer, 517 U.S. at 631. :
Section 21.06 and statutes like it similarly affect important
liberties. The impact of these laws is not limited to those few
individuals who are actually convicted of violating them and
thus subject to the punishment and collateral consequences
that flow from a criminal conviction. Rather, these statutes
are used to undermine the “undeniably important” interest in
“family association,” M.L.B., 519 U.S. at 117, that gay people
possess. They are used to restrict employment opportunities
for gay people, even when individuals have never been
? Cf. Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (taking into account
the nature of a real property owner’s “significant,” but nonfundamental,
interests in finding a violation of the due process clause test set forth in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
4
charged with—let alone convicted of—violating any law.
And they impinge on important Fourth Amendment interests
in the privacy of the homes and persons of gay men, lesbians,
and bisexuals.
Part I of this brief sets out this Court’s longstanding
practice of considering the quality of the interests affected by
a particular classification, even when it is conducting ration-
ality review. It shows that the interests that § 21.06 impacts
are vitally important to the individuals involved and thus
counsel sensitive review.
Part II of this brief shows that § 21.06 is unconstitutional
because it is not sufficiently related to the achievement of any
legitimate government purpose. Section A demonstrates that
§ 21.06 does not even serve a legitimate government purpose.
This Court has squarely held that the straightforward desire to
harm a politically unpopular group cannot be a legitimate
governmental interest. Department of Agriculture v. Moreno,
413 U.S. 528 (1973); O’Connor v. Donaldson, 422 U.S. 563
(1975); City of Cleburne v. Cleburne Living Center, 473 U.S.
432 (1985); Romer v. Evans, 517 U.S. 620 (1996). Section
21.06 conveys precisely this form of intolerance. Texas has
identified no rationale for why it has condemned the acts
prohibited by § 21.06 beyond its lawyers’ declaration that the
law reflects a choice about the morality of those acts.’ Given
the way § 21.06 actually operates, it does not serve as a
means of preventing these acts. It can be explained only as a
means of singling out gay people for burdens not imposed on
other individuals. The law can and is used as an excuse to
persecute gay people, even if it is seldom directly enforced.
? In an earlier challenge to § 21.06, Texas's attorney general offered a
different defense of the law and did not claim that the statute promoted
morality. Baker v. Wade, 553 F. Supp. 1121, 1142 n.55 (N.D. Tex. 1982)
(quoting the brief filed by the attorney general), rev'd, 769 F.2d 289 (Sth
Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986).
5
Section B argues that even if this Court were to conclude
that respondent is entitled to express a moral judgment about
homosexuality, § 21.06 would still fail scrutiny under the
equal protection Clause because it is not rationally related to
achieving this purpose. The best evidence that the state’s
chosen means—criminalization—is not rationally related to
its end is that the state rarely ever employs these. means.
Thus, because § 21.06 is not actually enforced, it operates
only to express constitutionally impermissible animus. Yet
given the nature of the acts involved, if Texas were permitted
to enforce § 21.06 as a criminal statute, this would pose
unacceptable risks that constitutionally repugnant behavior
would occur in the course of enforcing the statute.
ARGUMENT
I, BECAUSE OF THE IMPORTANT INDIVIDUAL
INTERESTS INVOLVED, THIS CASE CALLS
FOR A LESS DEFERENTIAL FORM OF
RATIONALITY REVIEW
In reviewing state action under the equal protection clause,
this Court generally asks three questions: First, what is the
basis on which the government has distinguished among
individuals? Second, how weighty is the governmental inter-
est purportedly served by the challenged law or practice?
Third, how well does the challenged law or practice serve
that interest?
The answer to the first question channels the second and
third inquiries. In cases where the government has used a
Suspect or quasi-suspect criterion, such as race or sex, the
challenged law will survive equal protection review only if it
is closely related to a particularly significant government
purpose.” By contrast, in cases that do not involve a suspect
‘In cases involving racial classifications, this is generally expressed
as requiring that the challenged measure be “narrowly tailored” to achieve
6
or quasi-suspect classification, or a restriction on a “fun-
damental” interest, the challenged law will survive as long as
it is rationally related to a legitimate government purpose—a
more deferential standard.
It would be a serious misreading of this Court’s precedents
to conclude that rationality review is invariably toothless.
The Court has repeatedly struck down statutes using
rationality review. See generally Robert C. Farrell,
Successful Rational Basis Claims in the Supreme Court from
the 1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357,
370 (1999) (listing various examples); Suzanne B. Goldberg,
Equality Without Tiers, 57 U. Miami L. Rev. __ (2003)
(same). Some of these laws have run afoul of the purpose
prong of rationality review because they expressed nothing
more than prejudiced or stereotypical thinking about the
individuals involved. In other cases, where states were pur-
suing some legitimate purpose, classifications were nonethe-
less judged to be an ill-conceived means of achieving that
end. And often both the means and the ends are deemed
problematic: the cases in which the Court has most often
found that laws fail rationality review are those in which
concerns with the logic of a law’s means reinforce questions
about the legitimacy of its ends.”
7 lling governmental interests.” Adarand Constructors, Inc. v. Pena,
$15 US. 200, 227 (1995). In cases involving gender-based classifica-
tions, the defendant must provide an “exceedingly persuasive justifi-
cation for the challenged practice, United States v. Virginia, 318 U.S. 515,
533 (1996), by showing that the challenged law is at least substantially
related” to the achievement of “important governmental objectives,
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
’ _ it is worth remembering that, until the emergence of three-
eamena protection in the mid-1970’s, the Court regularly employed
the language of rationality review even in race and gender cases. See,
e.g., Anderson v. Martin, 375 U.S. 399, 403 (1964) (striking down a
statute that required a candidate's race be indicated on the ballot because
it was not “reasonably designed to meet legitimate governmental interests
J
A. This Court Has Been More Likely to Find
Equal Protection Violations When Significant
Liberty Interests Are Involved, Even When
Those Interests Are Not Independently Consid-
ered to Be Fundamental
When the basis for a state’s decision on how to Classify
individuals is not a suspect or quasi-suspect one, the nature
of the interest at issue nonetheless helps to determine the
nature of the Court’s analysis. Where a state classification
unequally burdens a right deemed by the Constitution to be
fundamental, this Court applies heightened scrutiny. See,
e.g., Dunn v. Blumstein, 405 U.S. 330, 337 (1972) (applying
strict scrutiny under the equal protection clause to state laws
that deny some citizens the right to vote). In the absence of
such a fundamental right, the Court tends to defer to the state.
Yet this Court’s application of rationality review in equal
protection cases has been noticeably more assertive where the
Classification at issue unequally restricts individuals’ ability
to participate fully in one of the particularly significant
“transactions and endeavors that constitute ordinary civic life
in a free society.” Romer v. Evans, 517 U.S. at 631. This is
true even when the interests involved are not themselves so
“fundamental” as to require heightened protection against
government restrictions that apply to all citizens alike.
In Plyler v. Doe, 457 U.S. 202 (1982), for example, this
Court confronted a Texas statute that authorized local school
districts to deny enrollment to children who were not legally
admitted to the United States. The Court rejected the claim
that “illegal aliens” are a suspect class entitled to heightened
scrutiny. Jd. at 219 n.19. It also recognized that public
in informing the electorate as to candidates”); Reed v. Reed, 404 U.S. 71.
76 (1971) (striking down a statute that automatically preferred male to
female relatives as administrators of estates because it did not “bea[r] a
rational relationship to a state objective” but instead “ma{d]e the very kind
of arbitrary legislative choice forbidden by the Equal Protection Clause”).
8
education is not a fundamental “‘right’ granted to individuals
by the Constitution.” /d. at 221; see San Antonio Independent
School District v. Rodriguez, 411 U.S. 1, 35 (1973). None-
theless, the Court struck down the statute as 4 violation of the
equal protection clause, finding that the lasting impact on a
child’s life of denying him or her access to public education
distinguished education “from other forms of social welfare
legislation.” Plyler, 457 U.S. at 221.
Plyler is one of a number of cases in which ideas of
equality and liberty reinforce one another. Several of this
Court’s recent equal protection decisions follow a similar
pattern, striking down governmental decisions as violations of
the equal protection clause in part because of the importance
of the underlying interest affected, even when that interest
does not independently constitute a fundamental right. Most
recently, in Bush v. Gore, 531 U.S. 98 (2000) (per curiam),
this Court held that Florida’s use of different standards for
counting ballots during a statewide recount violated the equal
protection clause even though an “individual citizen has no
federal constitutional right to vote for electors for the
President of the United States.” /d. at 104. While the abstract
right to vote for electors was not itself a fundamental right,
this Court held that once the legislature has provided for
popular election, each voter is entitled to be treated with
“equal dignity.” /d. |
In MLB. v. SLJ., 519 U.S. 102 (1996), this Court
addressed the constitutionality of a go — o
i llants to prepay substantial costs in
aie os power The Court reiterated the longstanding
rule that the Constitution does not “independently require that
the State provide a right to appeal” judicial determinations.
Id. at 120, But, as the Court explained, in cases “concerning
access to judicial processes .. . . ‘due process and equal
protection principles converge.’” /d. (quoting Bearden v.
Georgia, 461 U.S. 660, 665 (1983)). In these cases,
this Court’s equal protection inquiry has repeatedly been
9
informed by the nature of the interest at issue in the
underlying judicial proceeding. In M.L.B., the underlying
case involved a parental termination proceeding. The interest
at issue was the appellant's relationship with her child.
Because parental “termination decrees ‘work a unique kind of
deprivation,’” 519 U.S. at 127 (quoting Lassiter vy. Depart-
ment of Social Services, 452 U.S. 18, 27 (1981)), the Court
held that it violated the equal protection clause to deny
M.L.B. the ability to appeal enjoyed by non-indigent parents.
M.L.B.’s reliance on Mayer v. City of C hicago, 404 U.S.
189 (1971), see M.L.B., 519 U.S. at 111-12 & 121-22, shows
how other, seemingly less draconian, deprivations of liberty
can also form the basis for finding equal protection violations.
Mayer involved an impecunious medical student who was
charged with disorderly conduct and interference with a
police officer—two non-felony, non-jailable offenses. Mayer
was convicted and given a $500 fine. He challenged the
state's refusal to provide him with a free trial transcript. This
Court held that the state's refusal to provide the transcript
violated the equal protection clause. As the M.L.B. Court
explained, even though Mayer faced no term of confinement.
the conviction “could affect his professional prospects and,
possibly, even bar him from the practice of medicine. . . . The
State's pocketbook interest . . . was unimpressive when
measured against the stakes for the defendant.” M.L.B.. 519
U.S. at 121.
In City of Cleburne v. Cleburne Living Center, 473 U.S.
432 (1985), this Court struck down an application of a munic-
ipal zoning regime that treated group homes for the mentally
retarded differently from other group living arrangements. It
held that the city’s decision reflected nothing beyond an
“irrational prejudice against the mentally retarded,” id. at 450,
which negatively affected their undeniably important interest
in living in the community, see id. at 438, 444 (opinion of
10
the Court); id. at 461 (Marshall, J., joined by Brennan and
Blackmun, JJ.) (describing the importance of group homes to
retarded individuals).
Finally, Romer itself offers a particularly salient example
of the way in which the nature of the liberty interests at stake
can inform rationality review under the equal protection
clause. The provision this Court struck down—Colo. Const.
Art. Il, § 30b (“Amendment 2”)}—interfered with gay peo-
ple’s “right to seek specific protection from the law.” Romer,
517 U.S. at 633. The way Amendment 2 foreclosed this right
was to wipe out protections gay people and their allies had
already achieved through the political system and to make
future gains impossible. Thus, Amendment 2 impaired the
ability of gay people to participate in one of the most
protected aspects of “civic life in a free society,” id. at 631—
concerted political activity to persuade elected officials to
adopt helpful policies. The impermissibility of the classifi-
cation Colorado drew was driven home by the extraordinary
way in which it disabled gay men, lesbians, and bisexuals.
The Romer decision also recognizes that gay people form
an identifiable class that cannot constitutionally be targeted
for status-based animus. /d. at 635. In so holding, the Court
implicitly acknowledged that one’s choice to identify as a gay
person implicates some species of liberty interest. This Court
was not required to overrule Bowers v. Hardwick, 478 U.S:
186 (1986), to reach that conclusion. Romer is thus a good—
but hardly the only—example of how this Court's rationality
review varies with the importance of the individual inter-
ests involved.
In short, just as this Court's rationality review has been
“especially deferential” in some contexts, such as “classifi-
cations made by complex tax laws,” Nord/inger v. Hahn, SOS
U.S. 1, 11 (1992), it has been noticeably more vigorous in
contexts where the classification touches upon important
individual interests. And Romer shows that one of those
and bisexuals in Texas a ri
in Texas, “because the al i
e | y already have [it], R ,
S. at 631—the right to make decisions about Boner
their private, consensual sex
» COF ual relationships with other
free from state interference. Until a —
ion against gay men, lesbians,
on their ability to Participate as
contexts involves discriminat
and bisexuals that touches
equal citizens in daily life.
ate, Consensual
Activity Interfere With Significant
| But
Operates in a quite similar fashion. Like jaan 2
§ 21.06 strips gay men, lesbians, and bisexuals of “the safe-
} Oe , (OF may seek without constraint.”
many A sa ya against exclusion from an peweor—ard
a rer of transactions and endeavors that constit
nary civic life in a free society.” Romer, 517 US. at 631,
At the most basic level,
12
partners of the same sex. The heterosexual majority, by
contrast, has the right to engage in precisely the same acts—
defined by Texas law as “(A) any contact between any part of
the genitals of one person and the mouth or anus of another
person; or (B) the penetration of the genitals or the anus of
another person with an object,” Tex. Penal Code § 21.01(1)}—
without fear of criminal punishment and the ensuing civil and
social disabilities that come from being branded a criminal.°
Section 21.06 is a paradigmatic example of the evil that
concerned Justice Robert Jackson in his often-cited concur-
rence in Railway Express Agency, Inc. v. New York, 336 U.S.
106 (1949):
The framers of the Constitution knew, and we should not
forget today, that there is no more effective practical
guaranty against arbitrary and unreasonable government
than to require that the principles of law which officials
would impose upon a minority must be imposed gen-
erally. Conversely, nothing opens the door to arbitrary
action so effectively as to allow those officials to pick
and choose only a few to whom they will apply legis-
lation and thus to escape the political retribution that
might be visited upon them if larger numbers were
affected. Courts can take no better measure to assure that
laws will be just than to require that laws be equal
in Operation.
Id. at 112-13 (Jackson, J., concurring); see also Hill v.
Colorado, 530 U.S. 703, 731 (2000); Larson v. Valente, 456
U.S. 228, 245-46 (1982); Eisenstadt v. Baird, 405 U.S. 438,
° The Texas statute differs in this significant respect from the Georgia
statute at issue in Bowers v. Hardwick, 478 U.S. 186 (1986), which
applied to acts of oral or anal sex regardless of the identity of the
participants. When confronted with a case where that statute was applied
to participants of the opposite sex, the Georgia Supreme Court declared
the statute unconstitutional in its entirety as a matter of state law, Powell
v. State, 510 S.E.2d 18 (Ga. 1998), and the Georgia Legislature did not
attempt to replace the statute with one covering only homosexual activity.
SE ee
13
454-55 (1972); cf. Cruzan v. Director, Missouri Dept. of
Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring)
(“Our salvation is the Equal Protection Clause, which
requires the democratic majority to accept for themselves and
their loved ones what they impose on you and me.”)
By interfering with the interest gay people share with all
other adults in making choices about their private consensual
sexual activity, § 21.06 also interferes with the relationships
gay couples develop. As this Court has long acknowledged,
sexual intimacy contributes to “a sensitive, key relationship
of human existence, central to family life, community
welfare, and the development of human personality.” Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973). This is true
for gay people no less than for heterosexuals.
Gay people form couples and create families that engage in
the full range of everyday activities, from the most mundane
to the most profound. They shop, cook, and eat together,
celebrate the holidays together, and share one another's
families. They make financial and medical decisions for one
another. They rely on each other for companionship and sup-
port. See generally Braschi v. Stahl Assoc. Co., 543 N.E.2d
49 (N.Y. 1989) (finding that a gay couple constituted a
family). Many gay couples share “the duties and the satis-
factions of a common home.” Moore v. City of East Cleve-
land, 431 U.S. 494, 505 (1977) (plurality opinion).’
Section 21.06 denies gay men and lesbians the discrete,
undeniably important right all other adults in Texas enjoy to
"The Moore plurality’s understanding of what “family” meant was
informed by census data “bear{ing] out the importance of family patterns
other than the prototypical nuclear family,” including the fact that a rising
number “of all families contained one or more members over 18 years of
age, other than the head of household and spouse.” /d. at 504 n.14.
Similarly, this Court’s consideration of § 21.06 should be informed by
data from the 2000 census showing that nearly 43,000 same-sex couples
live together in Texas.
14
control the nature of their intimate relationships. Because of
this alone, § 21.06 warrants the kind of sensitive scrutiny that
this Court accorded the state’s practices in cases like Plyler,
Cleburne, M.L.B., and Romer. Yet this is not the sole liberty
interest impacted by § 21.06.
2. Section 21.06 Undermines the Parental
Relationships of Lesbians, Gay Men, and
Bisexuals
This Court has long recognized that parents’ relationships
with their children are “undeniably important,” M.L.B., 519
U.S. at 117. Thus, under the equal protection clause, when
states intrude on family relationships, this Court “has exam-
ined closely and contextually the importance of the govern-
mental inte st advanced in defense of the intrusion.” /d.
at 116.
Courts in most states have recognized that sexual orien-
tation is unrelated to parenting ability. Thus, they have
generally rejected the view that sexual orientation can be used
to curtail a parent's relationship with his or her children. See
William B. Rubenstein, Cases and Materials on Sexual Orien-
tation and The Law 810-11 (2d ed. 1997); Developments in
the Law—Sexual Orientation and The Law, 102 Harv. L.
Rev. 1508, 1636 (1989).
However, courts in states with sodomy laws unreasonabl y
rely on these laws to restrict parental rights. For example, in
Ex parte D.W.W., 717 So.2d 793 (Ala. 1998), the Alabama
Supreme Court upheld restrictions on a divorced mother’s
visitation with her children. The trial court ordered that the
mother’s visits take place only under the supervision of the
children’s grandparents. Part of the court’s basis for restrict-
ing the mother’s visitation rights was the Court’s observation
that “the conduct inherent in lesbianism is illegal in Alabama.
.. . R.W., therefore, is continually engaging in conduct that
15
violates the criminal law of this state.” /d. at 796." Similarly,
in Tucker v. Tucker, 910 P.2d 1209 (Utah 1996), one of the
bases for the trial court’s determination to award custody to
the father was the fact that the mother was in a “monogamous
intimate relationship” with another woman. /d. at 1213. The
trial court found that this conduct “demonstrates a lack of
moral example to the child and a lack of moral fitness. This
conduct is unlawful in the State of Utah.” /d. And in Roe v.
Roe, 324 S.E.2d 691 (Va. 1985), the Virginia Supreme Court
concluded that a gay father was unfit for joint custody
because “the conduct inherent in the father’s relationship is
punishable as a class six felony” and his behavior meant that
“the conditions under which this child must live daily are . . .
unlawful.” /d. at 694.
In these, and many similar cases, the mere existence of
sodomy laws directly affected gay people's parenting rights.
3. Section 21.06 Restricts Employment Opportw
nities For Lesbians, Gay Men, and Bisexuals
The right of an individual “to engage in any of the common
occupations of life” is part of the liberty guaranteed by the
Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390,
399 (1923). Even though access to government employment
is not a fundamental right entitled to protection under the
substantive component of the due process clause, it is
nonetheless an important interest for many individuals. Here,
too, statutes like § 21.06 have been used to restrict the
opportunities of gay men, lesbians, and bisexuals.
* The statute cited by the Court, Ala. Code 1975, § 13A-6-65(a)(3),
defined the crime of “sexual misconduct” to include consensual “deviate
sexual intercourse.” Alabama defines “deviate sexual intercourse” to
include “[a)ny act of sexual gratification between persons not married to
each other involving the sex organs of one person and the mouth or anus
of another.” Ala. Code 1975, § 13A-6-60(2).
16
The Dallas Police Department, for example, has had a
policy of denying jobs to applicants ho have engaged in
violations of § 21.06, without regard to whether they have
ever been charged with, or convicted of, any crime. See City
of Dallas v. England, 846 S.W.2d 957, 958 (Tex. Ct. App.
1993). By contrast, the department did not disqualify from
consideration heterosexual applicants who engaged in oral or
anal sex.
Similarly, in Shahar v. Bowers, 114 F.3d 1097 (11™ Cir.
1997) (en banc), the Eleventh Circuit concluded that the state
attorney general could rescind a job offer to an attorney
who had received excellent evaluations as a summer intern
because she participated in a religious marriage ceremony
with another woman. The court of appeals found the rescis-
sion justified because “reasonable persons may suspect that
having a Staff Attorney who is part of a same-sex ‘marriage’
is the same thing as having a Staff Attorney who violates the
State’s law against homosexual sodomy.” /d. at 1105 n.17.
Thus, the court of appeals found it unnecessary to decide
whether the plaintiff “has engaged in sodomy within the
meaning of Georgia law.” Jd. The mere existence of a
sodomy law became the legal justification for Shahar’s dis-
charge. See generally Diana Hassel, The Use of Criminal
Sodomy Laws in Civil Litigation, 79 Tex. L. Rev. 813, 828-
33, 835-38 (2001) (discussing cases in which courts or
employers presume violations of sodomy statutes from a
litigant’s or applicant’s sexual orientation); Christopher
Leslie, Creating Criminals: The Injuries Inflicted by “Unen-
forced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103
(2000) (discussing the various ways in which formally unen-
forced sodomy statutes lead to discriminatory treatment of
gay people generally).
Moreover, individuals who are actually convicted of violat-
ing consensual sodomy statutes can find their ability to pur-
sue their careers sharply curtailed by state licensing laws that
deny individuals with criminal convictions, even convictions
17
for misdemeanors like § 21.06, the right to practice certain
professions. In Texas, for example, persons convicted of
violating § 21.06 may lose their license to practice as a
physician or registered nurse, see Tex. Occupational Code,
§§ 164.051(a)(2)(B), 301.409(a)(1)(B), or their jobs as school
bus drivers, Tex. Educ. Code § 22.084(b),(d).
4. Section 21.06 Threatens The Sanctity of the
Homes of Lesbians, Gay Men, and Bisexuals -
An “overriding respect for the sanctity of the home . . . has
been embedded in our traditions since the origins of the
Republic.” Payton v. New York, 445 U.S. 573, 601 (1980).
This value finds its most explicit expression in the Fourth
Amendment, which “reflects the view of those who wrote the
Bill of Rights that the privacy of a person’s home and prop-
erty may not be totally sacrificed in the name of maximum
simplicity in enforcement of the criminal law.” Mincey v.
Arizona, 437 U.S. 385, 393 (1978). As this Court recently
reemphasized, “[iJn the home, . . . all details are intimate
details, because the entire area is held safe from prying
government eyes.” Kyllo v. United States, 533 U.S. 27,
37 (2001)
Fourth Amendment values not only play a role in deciding
how police may conduct investigations. They also limit the
conduct the state may criminalize. Stanley v. Georgia, 394
U.S. 557 (1969), shows that concerns about the privacy of the
home can limit a state’s ability to criminalize behavior that
implicates an individual’s “right to satisfy his intellectual and
emotional needs in the privacy of his own home.” /d. at 565.
See Paris Adult Theatre, 413 U.S. at 66 (explaining that
Stanley cannot be justified solely on the basis of First
Amendment interests, since Stanley was charged with
possession of constitutionally unprotected obscene materials).
As this Court observed in Paris Adult Theatre, “marital inter-
course On a street corner or a theater stage” is simply a
18
different act than sexual intimacy that takes place within the
specially protected confines of the home. /d. at 66 n.13; see
Griswold v. Connecticut, 381 U.S. 479 (1965).
Statutes that make consensual homosexual conduct a crime
even when it occurs within an individual’s home clearly deny
gay men, lesbians, and bisexuals the ability to pursue their
most intimate relationships in the privacy of their own homes.
Moreover, by-making behavior in the home a crime, these
statutes authorize wholesale intrusion into the homes of gay
men, lesbians, and bisexuals, as amici explain in Section
I1.B.2 of this brief.
* * *
In National Coalition for Gay and Lesbian Equality v.
Minister of Justice, 1998 S.A.L.R. (Const. Ct. Oct. 9, 1998)
(No. 11/98) <http: www.law.wits.ac.za/judgements/1998/
gayles.html>, Justice Albie Sachs of the South African
Constitutional Court offered in his concurrence a particularly
eloquent articulation of the relationship between liberty and
equality that is also at issue here:
The fact is that both from the point of view of the
persons affected, as well as from that of society as a
whole, equality and privacy cannot be separated,
because they are both violated simultaneously by anti-
sodomy laws. In the present matter, such laws deny
equal respect for difference, which lies at the heart of
equality, and become the basis for the invasion of
privacy. At the same time, the negation by the state of
different forms of intimate personal behavior becomes
the foundation for the repudiation of equality.
Il. SECTION 21.06 IS NOT RATIONALLY RE-
LATED TO A LEGITIMATE GOVERNMENT
INTEREST
Section 21.06 fails rationality review for at least two rea-
sons. First, like the zoning decision in Cleburne Living
Center, 473 U.S. at 450, or the constitutional provision in
19
Romer, 517 U.S. at 634, § 21.06 reflects nothing more than
“irrational prejudice against,” or “animosity toward the class
of persons affected.” Under the circumstances of this case,
§ 21.06 cannot reasonably be viewed as directed at a legiti-
mate government interest in promoting private sexual moral-
ity. Second, even if this Court were to conclude that promo-
tion of private sexual morality can serve as a legitimate
government purpose, § 21.06 is not a permissible means for
pursuing that goal. Like the statutes at issue in Mayer,
MLJ., and Stanley, § 21.06 unjustifiably interferes with
significant individual freedoms. Thus, this Court can strike
down § 21.06 without deciding whether classifications based
on sexual orientation are inherently suspect or quasi-suspect.”
A. Section 21.06 Does Not Serve a Legitimate
Government Purpose
Respondent defends § 21.06 solely on the grounds that it
reflects the Legislature’s conclusion that sexual intimacy
between same-sex partners is immoral. See Brief in Opposi-
tion at 16. But that bare assertion cannot end this Court’s
inquiry into the state’s purpose, because not all moral judg-
ments embody legitimate state goals. In particular, a so-
called moral judgment that is utterly indistinguishable from
“a bare . . . desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest.” Romer,
517 U.S. at_634 (quoting Department of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973)). See also O’Connor v.
Donaldson, 422 U.S. 563, 575 (1975) (“May the State fence
in the harmless mentally ill solely to save its citizens from
exposure to those whose ways are different? One might as
well ask if the State, to avoid public unease, could incarcerate
all who are physically unattractive or socially eccentric. Mere
” Of course, if this Court were to hold that § 21.06 should be subjected
to heightened scrutiny under either the equal protection clause or the due
process clause, amici’s argument would apply with even greater force.
20
public intolerance or animosity cannot constitutionally justify
the deprivation of a person’s physical liberty.”). When a
challenged law or practice reflects “mere negative attitudes,
or fear,” Cleburne Living Center, 473 U.S. at 448, or is “inex-
plicable by anything but animus toward the class it affects,”
Romer, 517 U.S. at 632, it lacks a legitimate purpose.
While most criminal laws involve moral choices, in the
mine run of cases, the moral intuition that drives the
legislature to make particular behavior a crime involves some
sense that the conduct at issue causes tangible harm. Put
somewhat differently, in most cases, there is a clear answer to
the question “Why does the legislature consider this conduct
immoral?” beyond the blanket assertion “Because it does.”
The examples pointed to by the Texas Court of Appeals
simply underscore this point. To say that “the Legislature has
outlawed behavior ranging from murder to prostitution pre-
cisely because it has deemed these activities to be immoral,”
Lawrence v. State, 41 S.W.3d 349, 354 (Tex. Ct. App. 2001),
ignores the fact that the legislature deemed those activities to
be immoral for a reason. The obvious reason why the state
outlaws murder is to protect the lives of potential victims.
The reasons why states outlaw prostitution surely include the
effects prostitution has on public order in neighborhoods
where it occurs. Cf. City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41, 47 (1986) (finding that a city’s zoning
ordinance regarding the locations of adult theaters was
designed to address various “secondary effects” such as
increased crime, decreased retail trade and property values,
and the quality of urban life).
As the decision in Renton suggests, even with respect to
crimes that involve judgments about sexual morality, this
Court has generally pointed to purposes beyond simple
expressions of moral outrage. See, e.g., Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 569 (1991) (emphasis added)
(“This and other public indecency statutes were designed to
protect morals and public order.”); Michael M. v. Superior
21
Court of Sonoma County, 450 U.S. 464, 469-70 (1981)
(plurality opinion of Rehnquist, J.) (holding, after noting that
legislators might have been concerned about “protecting
young females from . . . the loss of ‘chastity,’ and . . . pro-
moting various religious and moral attitudes towards premari-
tal sex” that a California statutory rape law was properly
sustained because of the state’s strong interest in deterring
teenage pregnancy). When those public effects are absent,
this Court has been far more skeptical of the state’s asserted
interests. In Stanley v. Georgia, 394 U.S. 557 (1969), for
example, the Court held that a state’s power to punish the
public distribution of constitutionally unprotected, obscene
material did not permit it to punish the private possession of
such material within an individual’s home.
In this case, respondent points to no reason why private,
consensual homosexual conduct between adults is immoral
and should be made a crime. It does not argue that the con-
duct at issue harms third parties in some tangible fashion. It
does not argue that private consensual homosexual conduct
creates threats to public order or brings in its wake other
criminal behavior. It does not argue that § 21.06 is tied to
any concrete harm.'° The obvious explanation for § 21.06 is
that it reflects popular disapproval of gay people. “Private
biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect.” Palmore v.
Sidoti, 466 U.S. 429, 433 (1984).
Respondent recognizes that after Romer, straightforward
animus against gay men, lesbians, and bisexuals is impermis-
sible. But it tries to distinguish § 21.06 by claiming Colo-
rado’s Amendment 2, was “based upon sexual orientation,”
Brief in Opposition at 18 (emphasis in original), while
° Other criminal statutes, which apply to heterosexual and homosex-
ual conduct alike, prohibit public sexual activity, Tex. Penal Code
§ 21.07(aX(2), nonconsensual sexual activity, id. § 22.011(a)(1), and sex-
ual activity involving minors, id. §§ 22.01 1(a)(2), 21.11.
22
§ 21.06 “is directed at certain conduct, not at a class of
people.” /d. at 12. The fact that § 21.06 is phrased in terms
of conduct does not undermine the conclusion that it tar-
gets—in a similar manner—the same class that was targeted
in Romer. While the Romer Court referred to the class as
“homosexual persons or gays and lesbians,” Amendment 2
literally prohibited claims of protection based on “homo-
sexual, lesbian or bisexual orientation, conduct, practices or
relationships” as well. Romer, 517 U.S. at 624 (emphasis
added).
Texas’s attempt to call this a conduct regulation fails for
another reason. The Eighth Amendment prohibits states from
criminalizing a particular status in the absence of “any
antisocial behavior.” Robinson v. California, 370 U.S. 060,
666 (1962). Because a state therefore cannot make it a crime
to “be gay,” a state with that motive will try to circumvent the
Constitution by crafting a law that makes it a crime to engage
in behaviors correlated with being gay. That is in essence
what Texas did here. But it is a charade the Court has not
tolerated in other cases. See, e.g., Hunter v. Underwood, 471
U.S. 222, 227, 232 (1985) (finding that an Alabama statute
that disenfranchised individuals convicted of certain misde-
meanors of “moral turpitude” was in fact purposefully dis-
criminatory because “the crimes selected for inclusion . . .
were believed by the [drafters] to be more frequently com-
mitted by blacks”). Thus, § 21.06 fails a critical aspect of any
rational basis test: it does not advance a legitimate state
objective.
B. Even If This Court Were To Find the Presence
of a Legitimate State Interest in This Case,
Section 21.06 Still Would Not Be Rationally
Related to Achieving That Purpose
Respondent itself acknowledges that not all penalties or
burdens imposed on individuals who engage in homosexual
23
conduct can survive even rationality review. After arguing
that the state has a legitimate interest in “implementing
morality,” it observes that
A statute which, say, prohibited practicing homosexuals
from attending public schools would not be rationally
related to that permissible state goal, and would violate
the Equal Protection Clause; but a statute imposing
criminal liability upon only those persons who actually
engage in homosexual conduct is perfectly tailored to
implement the communal belief that the conduct is
wrong and should be discouraged.
Brief in Opposition at 19. What respondent fails to recognize
is that if the hypothetical school-exclusion statute is uncon-
Stitutional, it is not because it is less well tailored than § 21.06
to “implement[ing] the communal belief that the conduct is
wrong and should be discouraged.” Given the centrality
of public education to one’s membership in the community,
surely exclusion of “practicing homosexuals”—a group
essentially indistinguishable from “persons who engage in
homosexual conduct”—would convey the communal belief
that homosexuality is wrong quite well. And a statute pro-
hibiting practicing homosexuals from attending public
schools would seem to discourage homosexual conduct at
least as much as the unenforced § 21.06 does. Cf. Depart-
ment of Housing and Urban Development v. Rucker, 122
s.Ct. 1230, 1235 (2002) (finding that the threat of being
evicted from public housing for drug-related conduct could
help to deter such activity). Rather, the reason the hypo-
thetical school-exclusion statute fails rationality review is
because the price it exacts is unacceptably high. So too,
making private, consensual homosexual conduct a crime is a
constitutionally inappropriate means to any permissible end.
24
1. Nonenforcement of Statutes Like Section
21.06 Transforms Them Into Expressions of
Constitutionally Impermissible Animus
The state of Texas rarely enforces § 21.06. Indeed, in a
civil action challenging the constitutionality of § 21.06,
Texas's highest cour ruled that the plaintiffs lacked standing
because they coulda show no threat of imminent enforcement.
State v. Morales, 869 S.W.2d 941, 942 (Tex. 1994). The
court premised this conclusion on “the Attorney General's
contention that § 21.06 has not been, and in all probability
will not be, enforced against private consensual conduct
between adults.” Id.""
In light of the record of pervasive indifference to enforce-
ment of § 21.06, it is impossible to credit respondent's
assertion that the statute reflects a societal interest of any
kind, moral or other, in preventing private, consensual sexual
activity between same-sex partners. See Poe v. Ullman, 367
U.S. 497, 554 (1961) (Harlan, J., dissenting) (“To me the very
circumstance that Connecticut has not chosen to press the
enforcement of this statute against individual users, while it
nevertheless persists in asserting its right to do so at any
time—in effect a right to hold this statute as an imminent
threat to the privacy of the households of the State—conduces
to the inference either that it does not consider the policy of
the statute a very important one, or that it does not regard the
'' It is important to recognize that the reason Texas's Homosexual
Conduct Law is seldom enforced is not because it is seldom violated.
There are probably around one million gay or lesbian individuals in
Texas. See Baker v. Wade, 553 F. Supp. at 1129 (explaining this esti-
mate). Thus, there are millions of violations of § 21.06 every year. None-
theless, the state apparently makes virtually no effort to detect and
prosecute violations of § 21.06. In this case, for example, petitioners were
discovered only because police officers went to petitioner Lawrence's
house to investigate what turned out to be a criminally misleading report
about a weapons disturbance.
25
means it has chosen for its effectuation as appropriate or
necessary.”). Indeed, in an earlier case challenging § 21.06,
the Attomey General of Texas withdrew his appeal of a
district court decision striking down § 21.06, leaving only a
single county prosecutor to defend (successfully) the statute.
See Baker v. Wade, 769 F.2d at 291.
But if the state makes virtually no effort to enforce the
—s the ny Feege for its presence on the books is
it stays to express animus inst people.
Given the way these laws function ty ont supra
Section I.B., the government and the public read § 21.06 as
an endorsement of discrimination against gay people. Thus,
the major function § 21.06 serves is to brand all gay men and
lesbians as immoral criminals.
Lest there be any doubt about this message, consider how
the Texas law of defamation treats false allegations of homo-
sexuality. In Plumley v. Landmark Chevrolet, 122 F.3d 308
(Sth Cir. 1997), Hamilton, a salesman at the defendant truck
dealership, called Plumley, a potential customer, a “fucking
faggot.” /d. at 310. In Plumley’s subsequent slander suit, the
Fifth Circuit held that Plumley was not required to prove
special damages because “when Hamilton called Plumley a
‘faggot,’ Hamilton imputed the crime of sodomy to Plumley.
Therefore, the alleged remark is slander per se,” id. at 311.
See also Head v. Newton, 596 S.W.2d 209, 210 (Tex. Ct. Civ.
App. 1980) (calling someone “homosexual” or “queer” is
slanderous per se because it imputes a crime even though that
crime is rs pment imprisonment). The Texas courts
continue is very day to equate being with being a.
criminal. See Thomas v. Bynum, 2002 wi 51820600 Cte
Ct. App. 4th Dist., Dec. 18, 2002) (reaffirming Head).
Under these circumstances, the decision to keep § 21.06 on
the books reveals that Texas is using the means of the crim-
inal law not to interdict conduct but solely to make a
statement that the Constitution does not permit the state to
26
make—namely that gay men, lesbians, and bisexuals are
an inherently unworthy class “unequal to everyone else.
Romer, 517 U.S. at 635.
2. Vigorous Enforcement of Laws Like Section
21.06 Would Involve Constitutionally Repug-
nant Methods
Although the means of the criminal law are rarely em-
ployed to enforce the edict of § 21.06, the availability of the
awesome state power that flows from criminalizing particular
behavior offers an alternative reason for striking down
§ 21.06. If the state can make private, consensual homo-
sexual behavior a crime, then it can also deploy all the
incidental machinery of the criminal law, [including custo-
dial] arrests, searches and seizures,” Poe v. Uliman, 367 U.S.
at 548 (Harlan, J., dissenting).
This Court’s recent decision in Atwater v. City of Lago
Vista, 532 U.S. 318 (2001), drives home the ge § —
imposes. Like Mrs. Atwater, petitioners in this case
subjected to a custodial arrest, with the attendant loss of
liberty and “pointless indignity,” id. at 373 (O’Connor, J.,
dissenting), for a non-jailable offense. They were forced to
spend the night in jail, despite the fact that the maximum
statutorily authorized penalty for violating § 21.06 is a $500
fine. See Tex. Penal Code § 12.23. Their experience shows
that law enforcement personnel or prosecutors who have the
kind of “negative attitudes” or “irrational prejudice that
Cleburne held to be constitutionally illegitimate can unilat-
erally impose a punishment on gay people that the Texas
Legislature never authorized. In short, as the title of Malcolm
M. Feeley’s classic book puts it, The Process Is The Punish-
ment (1979). And because upholding § 21.06 necessarily
requires holding that the state can treat gay men, lesbians and
bisexuals differently from all other citizens, the fact that anti-
gay prejudice motivated a particular officer or department s
decision to enforce § 21.06 would be irrelevant. Cf. Atwater,
27
532 U.S. at 372 (O'Connor, J., dissenting) (explaining that
“unbounded discretion” to carry out full custodial arrests
“carries with it grave potential for abuse” and that “the
relatively small number of published cases dealing with such
arrests proves little and should provide little solace,”
especially given problems with discriminatory enforcement).
The commentary to the American Law Institute’s Model
Penal Code identified precisely these dangers several decades
ago: to the extent that laws like § 21.06 “are enforced against
private conduct between consenting adults, the result is
episodic and capricious selection of an infinitesimal fraction
of offenders for severe punishment. This invitation to arbi-
trary enforcement not only offends notions of fairness and
horizontal equity, but it also creates unwarranted opportunity
for private blackmail and official extortion.” Model Penal
Code §213.2 Comment 2 (1962, Comments Revised 1980).
If § 21.06 is a valid criminal statute, there are other perhaps
even more constitutionally repugnant methods of enforcing
the law than simply confining defendants overnight until they
can be arraigned. As noted above, the 2000 U.S. Census
reports nearly 43,000 same-sex cohabiting couples in Texas.
A vindictive or bigoted law enforcement officer or prosecutor
could perhaps quite easily establish probable cause to believe
that these couples, or any openly gay or lesbian individuals,
have engaged in violations of § 21.06, especially given the
presumption, as a matter of Texas law, that homosexuals
violate § 21.06. See, e.g., Plumley, 122 F.3d at 310; Head v.
Newton, 596 S.W.2d at 210. If they can establish probable
cause, police or prosecutors can obtain search warrants to
enter individuals’ homes and search their personal effects for
incriminating evidence. In Griswold, 381 U.S. at 485-86, one
of the considerations that influenced this Court’s holding that
Connecticut could not criminalize the use of contraceptives
was the prospect that otherwise the Court would be required
to “allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives,” an
28
idea “repulsive to the notions of privacy surrounding the
marriage relationship.” The idea is no less repulsive if the
police are searching the bedrooms of gay and bisexual
individuals for telltale signs of sexual activity. As this Court:
recognized in Kyllo, 533 U.S. at 37, “[iJn the home, .. . all
details are intimate details, because the entire area is held safe
from prying government eyes.”
Other cases suggest that police might be justified in even
more intrusive searches of individuals themselves. Courts of
appeals have repeatedly recognized that body cavity searches
and “strip searches involving the visual inspection of the anal
and genital areas [are] demeaning, dehumanizing, undigni-
fied, humiliating, terrifying, unpleasant, embarrassing, repul-
sive, signifying degradation and submission.” Mary Beth G.
v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)
(internal quotation marks omitted). See also Blackburn v.
Snow, 771 F.2d 556, 564 (ist Cir. 1985); Swain v. Spinney,
117 F.3d 1, 6-7 (1st Cir. 1997). But they have nonetheless
allowed them in a variety of circumstances. For example, in
Rodriques v. Furtado, 950 F.2d 805, 810-11 (1st Cir. 1991),
the court of appeals upheld a warrant authorizing a vaginal
search for drugs in light of informants’ statements that they
had overheard the target saying that she sometimes hid drugs
in her vagina. In Salinas v. Breier, 695 F.2d 1073, 1085 (7th
Cir. 1982), cert. denied, 464 U.S. 835 (1983), the court of
appeals held that the police were entitled to conduct strip and
body cavity searches without warrants of an entire family
taken into custody on the basis of an arrest warrant for the
father because they had probable cause to believe that a
controlled substance was hidden in at least one of the family
members’ rectums or vaginas. Most recently, in United
States v. Husband, 2002 U.S. App. LEXIS 22851 (7th Cir.,
Nov. 4, 2002), the court of appeals upheld a search in which,
after a suspect refused to open his mouth, the police had him
anesthetized and rendered unconscious in order to remove
evidence from his mouth. See also Winston v. Lee, 470 U.S.
29
753, 759, 760 (1985) (providing that “compelled surgical
intrusion into an individual's body for evidence . . . .
on a case-by-case approach, in which the individual’s inter-
ests in privacy and security are weighed against society’s
interests in conducting the procedure”).
The most objective physical evidence of a violation of
§ 21.06 would surely be the presence of the saliva or semen
of one person on (or in) his or her partner’s body. Forcing a
Suspect to submit to a strip search, cavity search, or other
intrusion to retrieve this evidence, no matter how probative,
of an act that Texas has chosen to treat as a misdemeanor
subject to a $500 fine would be constitutionally repugnant.
As the commentary to the Model Penal Code observes, “the
methods available to the police for enforcing such laws
involve tactics which are often unseemly, and which, by their
very nature, stretch the limits of constitutionality.” Model
Penal Code §213.2 Comment 2 (1962, Comments Revised
1980). But the availability of such enforcement measures
flows almost ineluctably from the conclusion that states can
enforce notions of morality by criminalizing the harmless
conduct at issue in this case. Though respondent has argued
that it is entitled to make the moral choice that underlies
§ 21.06, nothing in its argument suggests that it should be
entitled to deploy the full panoply of criminal law enforce-
ment against citizens who have engaged in private, consen-
sual homosexual acts. That is an irrational and impermissible
response.
30
CONCLUS‘(ON
For the foregoing reasons, amivi urge this Court to reverse
the decision of the Texas Court of Appeals.
Respectfully submitted,
WILLIAM B. RUBENSTEIN PAMELA S. KARLAN
405 Hilgard Avenue Counsel of Record
Los Angeles, California 90095 559 Nathan Abbott Way
(310) 206-7145 Stanford, California 94305
(650) 725-4851
Counsel for Amici Curiae
la
APPENDIX
Selected Bibliography of Amici’s Scholarship
This is a selected list of amici’s _— about equality
and the Constitution.
Bruce A. Ackerman, Levels of Generality in Constitutional
Interpretation: Liberating Abstraction, 49 U. Chi. L. Rev. 317
(1992)
Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L.
Rev. 713 (1985)
Jack M. Balkin & Sanford Levinson, Understanding The
Constitutional Revolution, 87 Va. L. Rev. 1045 (2001)
J.M. Balkin Processes of Constitutional Decisionmaking:
Cases and Materials (4th ed. 2000) (with Paul Brest, Sanford
Levinson & Akhil Reed Amar)
J.M. Balkin & Sanford Levinson, Canons of Constitutional
Law, 111 Harv. L. Rev. 963 (1998)
J.M. Balkin, The Constitution of Status, 106 Yale L. J. 2313
(1998)
Jack M. Balkin, Group Conflict and the Constitution: Race,
Sexuality, and Religion: The Constitution of Status, 106 Yale
L.J. 2313 (1997)
Derrick A. Bell, Jr., Constitutional Conflicts (1997)
Derrick A. Bell, Jr., Confronting Authority: Reflections of an
Ardent Protestor (1996)
Derrick A. Bell, Jr., Race, Racism and American Law (3rd
ed. 1992)
Derrick A. Bell, Jr., Faces at the Bottom of the Well: The
Permanence of Racism (1992)
2a
Derrick A. Bell, Jr., And We Are Not Saved: The Elusive
Quest for Racial Justice (1987)
Paul Brest, Processes of Constitutional Decisionmaking:
Cases and Materials (4th ed. 2000) (with Sanford Levinson,
J.M. Balkin, & Akhil Reed Amar)
Paul Brest, Constitutional Citizenship, 34 Clev. St. L. Rev.
175 (1986)
Paul Brest, The Substance of Process, 42 Ohio St. LJ.
131 (1981)
Paul Brest, Foreword: In Defense of the Antidiscrimination
Principle, 90 Harv. L. Rev. 1 (1976)
Evan Caminker, Precedent and Prediction: Forward-Looking
Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev.
1 (1994)
Erwin Chemerinsky, Getting Beyond —Formalism in
Constitutional Law: Constitutional Theory Matters, 54 Okla.
L. Rev. 1 (2001)
Erwin Chemerinsky, Perspectives on Constitutional Exemp-
tions to Civil Rights Laws: Boy Scouts of America v. Dale:
The Expressive Interests of Associations, 9 Wm & Mary Bill
of Rts. J. 595 (2001)
Erwin Chemerinsky, History, Tradition, the Supreme Court,
and the First Amendment, 44 Hastings L.J. 901 (1993)
Erwin Chemerinsky, Ending Discrimination Against Homo-
sexuals: A Moral Imperative, Cogitations on Law and Gov-
ernment, Winter 1984, at 14
David Cole From Hand-Holding To Sodomy: First Amend-
ment Protection of Homosexual (Expressive) Conduct, 29
Harv. C.R.-C.L. L. Rev. 319 (1994) (with William N.
Eskridge)
3a
David B. Cruz, “Just Don’t Call It a Marriage:” The First
Amendment and Marriage as an Expressive Resource, 74
S. Cal. L. Rev. 925 (2001)
David B. Cruz, Same-Sex Marriage, in Encyclopedia of the
American Constitution (Levy, et al eds., 2d ed. 2000)
David B. Cruz, The Sexual Freedom Cases: Contraception,
Abortion, Abstinence, and the Constitution, 35 Harv.
C.R.-C.L. L. Rev. 299 (2000)
David B. Cruz, Controlling Desires: Sexual Orientation
Conversion and the Limits of Knowledge and Law, 72 S. Cal.
L. Rev. 1297 (1999)
David B. Cruz, Piety and Prejudice: Free Exercise Exemption
from Laws Prohibiting Sexual Orientation Discrimination,
69 N.Y.U. L. Rev. 1176 (1994)
Thomas C. Grey, Bowers v. Hardwick Diminished, 68
U. Colo. L. Rev. 373 (1997)
Thomas C. Grey, The Legal Enforcement of Morality (1983)
(editor, with introductory essay)
Thomas C. Grey, Eros, Civilization, and the Burger Court,
43 Law & Contemp. Probs. £3 (1980)
Pamela S. Karlan, Equal Protection, Due Process, and the
Stereoscopic Fourteenth Amendment, 33-McGeorge L. Rev.
473 (2002)
Pamela S. Karlan, Some Thoughts on Autonomy and Equality
in Relation to Justice Blackmun, 26 Hastings Const. L.Q.
59 (1998)
Pamela S. Karlan, Just Politics?: Five Not So Easy Pieces of
the 1995 Term, 34 Houston L. Rev. 289 (1997)
Kenneth L. Karst, Law, Cultural Conflict and the Social-
ization of Children, __ Cal. L. Rev. ___ (forthcoming 2003)
4a
Kenneth L. Karst, Myths of Identity: Individual and Group
Portraits of Race and Sexual Orientation, 43 UCLA L. Rev.
263 (1995)
Kenneth L. Karst, The Pursuit of Manhood and the
Desegregation of the Armed Forces, 38 UCLA L. Rev.
499 (1991)
Kenneth L. Karst, Religion, Sex, and Politics: Cultural
Counterrevolution in Constitutional Perspective, 24 U.C.
Davis L. Rev. 677 (1991)
Kenneth L. Karst, Boundaries and Reasons: Freedom of
Expression and the Subordination of Groups, 1990 U. Ill.
L. Rev. 95 (1990)
Kenneth L. Karst, Belonging to America: Equal Citizenship
and the Constitution (1989)
Kenneth L. Karst, The Freedom of Intimate Association,
89 Yale L. J. 624 (1980)
Andrew Koppelman, The Gay Rights Question in Con-
temporary American Law (2002)
Andrew Koppelman, Signs of the Times: Dale v. Boy Scouts
of America and the Changing Meaning of Nondiscrimination,
23 Cardozo L. Rev. 1819 (2002)
Andrew Koppelman, Defending the Sex Discrimination
Arguments for Gay and Lesbian Rights: A Reply to Edward
Stein, 49 UCLA L. Rev. 519 (2001)
Andrew Koppelman, Same-Sex Marriage, Choice of Law,
and Public Policy, 76 Tex. L. Rev. 921 (1998)
Andrew Koppelman, Sexual and Religious Pluralism, in
Sexual Orientation and Human Rights in American Religious
Discourse, (Martha Nussbaum and Saul Olyan, eds., 1998)
Andrew Koppelman, Sex, Law, and Equality: Three Argu-
ments for Gay Rights, 95 Mich. L. Rev. 1636 (1997)
Sa
Andrew Koppelman, Romer v. Evans and Invidious Intent,
6 Wm. & Mary Bill of Rts. J. 89 (1997)
Andrew Koppelman, Dumb and DOMA: Why the Defense of
Marriage Act is Unconstitutional, 83 lowa L. Rev. 1 (1997)
Andrew Koppelman, Is Marriage Inherently Heterosexual?,
42 Am. J. Juris. 51 (1997)
Andrew Koppelman, Same-sex Marriage and Public Pol-
icy: the Miscegenation Precedents, 16 Quinnipiac L. Rev.
105 (1996)
Andrew Koppelman, Antidiscrimination Law and Social
Equality (1996)
Andrew Koppelman, Gaze in the Military: A Response to
Professor Woodruff, 64 U. Mo.-K.C.L. Rev. 179 (1995)
Andrew Koppelman, Why Discrimination Against Lesbians
and Gay Men is Sex Discrimination, 69 NYU L. Rev.
197 (1994)
Andrew Koppelman, The Miscegenation Analogy: Sodomy
Law as Sex Discrimination, 98 Yale L.J. 145 (1988)
Sanford Levinson, Processes of Constitutional Decision-
making: Cases and Materials (4th ed. 2000) (with Paul Brest,
J.M. Balkin & Akhil Reed Amar)
Sanford Levinson, Presidential Power and Gays in the
Military, Wall St. J., Feb. 3, 1993, at A15.
Frank Michelman, Law’s Republic, 97 Yale L.J. 1493 (1988)
Frank I. Michelman, Foreword: Traces of Self-Government,
100 Harv. L. Rev. 1 (1986)
Frank I. Michelman, Foreword: On Protecting the Poor
Through The Fourteenth Amendment, 83 Harv. L. Rev.
7 (1969)
6a
William B. Rubenstein, Do Gay Rights Laws Matter?: An
Empirical Analysis, 75 S. Cal. Rev. Rev. 65 (2001)
William B. Rubenstein, Divided We Propagate, 10 UCLA
Women’s L. J. 143 (1999)
William B. Rubenstein, The Myth of Superiority, 16 Const.
Comm, 599 (1999)
William B. Rubenstein, Queer Studies II]: Some Reflections
on the Study of Sexual Orientation Bias In The Legal
Profession, 8 UCLA Women’s L. J. 379 (1998)
William B. Rubenstein, In Communities Begin
Responsibilities: Obligations At The Gay Bar, 48 Hastings
L. J. 1101 (1997)
William B. Rubenstein, Divided We Litigate: Addressing
Disputes Among Clients and Lawyers in Civil Rights
Campaigns, 106 Yale L. J. 1623 (1997)
William B. Rubenstein, Cases and Materials Materials on
Sexual Orientation and the Law (1997)
William B. Rubenstein, Lesbians, Gay Men, and the Law
(1993)
William B. Rubenstein, We Are Family: A Reflection on the
Search for Legal Recognition of Lesbian and Gay
Relationships, VIII J. L.& Politics 89 (1991)
Steven H. Shiffrin, Jesse H. Choper, Richard H. Fallon,
Jr., Yale Kamisar, Constitutional Law: Cases-Comments-
Questions (9th ed. 2001)
Geoffrey R. Stone, Constitutional Law (4th ed. 2001) (with
Louis M. Seidman; Cass R. Sunstein & Mark V. Tushnet)
Kenji Yoshino, Covering, 111 Yale L.J. 769 (2002)
Kenji Yoshino, The Epistemic Contract of Bisexual Erasure,
52 Stan. L. Rev. 353 (2000)
Ta
Kenji Yoshino, Assimilationist Bias in Equal Protection: The
Visibility Presumption and the Case of “Don’t Ask, Don’t
Tell,” 108 Yale L.J. 485 (1998)
Kenji Yoshino, Suspect Symbols: The Literary Argument
for Heightened Scrutiny for Gays,” 96 Colum. L. Rev.
1753 (1996)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.