# Amicus Curiae Brief — Lawrence v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 558

## Text

2)

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... =, 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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A10. Public record. Not legal advice.