Amicus Curiae Brief — Lawrence v. Texas

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

Semoea:o Court Un

= | FILED

4) JAN 16 2003

No. 02-102

IN THE

Supreme Court of the United States

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

STATE OF TEXAS,

Respondent.

On Wait oF CERTIORARI TO THE COURT OF

APPEALS OF TEXAS - FourTEENTH DisTRICT

AMICI CURIAE BRIEF

OF THE -

LOG CABIN REPUBLICANS

AND

LIBERTY EDUCATION FORUM

IN SUPPORT OF THE PETITIONERS

C. MArTIN MEEKINS M. ELaine JOHNSTON

Counsel of Record Wuire & Case LLP

C. RANDOLPH FISHBURN 1155 Avenue of the Americas

Wuire & Case LLP New York, NY 10036

633 West Fifth Street

Suite 1900

Los Angeles, CA 90071

(213) 620-7700

Counsel for Amici Curiae

——$—$>_— —

178522 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

rig ©

\ Ny £

Bx re :

Path ia wh

< ¥: 2 r

> s. ° . vA

af NS - a

SOONG). 3 Seine

in Ae ad 8 Pee

eh Fee: kt

mr ered, giPan'h,

as. y F Cee

AS iret ae

mss Tae

he ie FO Co

a aa ie +

pa me Prd ee i

PE ES. > ‘

CRI es

Sous” Wied on ®, at Pa wh 7 .

ae” es eras se é ?

RiGee SM ay ee ry

é aig Ae Ae dys

Re Pidavee oa ost

Ht Remy ees P Ok

Sve eh! &

PR re LN a rary Nae re

os ce baci wy ‘2 oi

pgs dag A, Sh cha fect

: aes a eRe

ea STO oak A Ba

vs eae oa ne ge

1S) Ee SMES B

» Apne! Soe OK 7,

ats (5 *- a

, Fpl , age es

sees 2 hts vis

aiiAy AY, iets 5, A tek

tas rae era oh

hatch} a ra

a ie ae Pie

s “i 2? © fe, f

Pa ” oe gS

ee Bret. FS ie

. P| fs Fi Dw

a he a a

~ ? 4

ae, he ne

oi fhe me

: ue

ths oy

Saas, *

A )

gts ey , [

ae we | a

hs eta, . >

TABLE OF CONTENTS

Table of Cited Authorities .................008.

Interest of Amici Curiae

Summary of Argument ...

Argument

I. The Court Should Reconsider Bowers v.

Hardwick and Recognize that Fundamental

and Constitutionally Protected Right to

Privacy Protects the Intimate Relationships

for All American Families from ene

State Intrusion. ............

Protection of a Broadly Defined Family

Se eee ee

Liberty for All Americans.

Intimate Relationships Occupy a “Private

Realm of Family Life the State Cannot

Social and Cultural Developments Since

1986, and a Decent Regard for the Rights

of All Americans, Require that this Court

Revisit its Bowers Holding. .........

il il

Contents TABLE OF CITEDAUTHORITIES

Page Page

D. The Texas Homosexual Conduct Law CASES

and Others Like It Constitute an

Unjustified State Intrusion on Ordered Baker v. Wade,

Liberty; and If the Rights of All 553 F. Supp. 1121 (N.D. Tex.

Americans to Undertake Intimate 1982), aff'd on other grounds 743 F.2d 236

Expressive Conduct Is to Be Protected, (Sth Cir. 1984), rev'd, 769 F.2d 289

All “Sodomy” Laws Must Be Struck tt .c Seven ddentdecedndees 040s 9

ite telecine eheee veces 23

Board of Directors of Rotary

Ne ce. ce eecéanees 26 International v. Rotary Club,

481 U.S. 537 (1987) .. 2... .. cece cece cece. 9, 14, 16

| Bowers v. Hardwick,

PE ED aseeddcccsecececsaddées passim

Boy Scouts of America v. Dale,

ED + 600ne 6ebssnces en dec 15-16, 21

Brown v. Board of Education,

DINED sccacceaddcccacsisdeses 22

Carey v. Population Services International,

TED coseonenésoseucesedsces 7,13

Cleveland Board of Education v. LaFleur,

ee oe 7, 8,14

Corfield v. Coryell, 6 Fas. Cas. 546

| (C.C.E.D. Pa. 1823) (no. 42320) ...........2. 7

County of Sacramento v. Lewis,

i ££.’ beens scecnetod ces 7

Cited Authorities

Page

Cruzan v. Director, Missouri

Department of Health,

Gy GK ED heccwadbeccusteuneneses 7,24

Doe v. Bolton,

Gs SEED sccdccesnccukbodéosebacns 7

Eisenstadt v. Baird,

SPEED tencuseoeeseusdesseeens 13

Ginsburg v. New York,

Se PE eb cencceéaecdcoeneenuus 12

Griswold v. Connecticut, .

Be En ED dnnvencsaducessbesece 7, 8,12

Lawrence v. State of Texas,

41 S.W.3d 349 (Tex. App. — Houston

ED éccceceéesuceceveuceses 5,24

Loving v. Virginia,

De Pen os deeeedeetsedoueauces 12, 15, 18

Meyer v. Nebraska,

DRED covceceaswesscseuesects 7,18

Michael H. v. Gerald D..,

ee Ss CEE nnceccdsnecddseecee cuss 13

Moore v. City of East Cleveland,

Te 7, 8, 16, 23

-——-— —_—- —

Cited Authorities

Page

Olmstead v. United States,

ee CE ED Se cddcccneveosecenscess 12,14

Paris Adult Theatre I v. Slaton,

SP ED 64 coc bedscccnccececesies 9,14

Pierce v. Society of the Sisters of the

Holy Name of Jesus & Mary,

DE SEED cneeubéetdcdcdoesesonce 7

Planned Parenthood of Southeastern

Pennsylvania, Inc. v. Casey,

Se PEED ccceccccceces: 7, 13, 18, 23,24 ©

Plessy v. Ferguson,

SED sedeencenésenecésoneuds 4

Poe v. Ullman,

ED ccccdcedceseesecaseedess 7,24

Post v. State, 715 P.2d 1105

Ss AA, DED ccc scdccccscancccens 4

Prince v. Massachusetts,

, =f er 7, 8, 12, 16

Quiltoin v. Walcott,

SED ccccenccecenceseseceece 14

Roberts v. United States Jaycees,

SE PEE Gacccucdcecocenuceesece 9,14

Cited Authorities

Rochin v. State of California,

SE EE 56 codcescudedeecunctos

Roe v. ‘Wade,

I TED csp cesacveocdsceeeses 7,

Romer v. Evans,

ne olccoseeceaneeas vetéives

Skinner v. Oklahoma ex rel. Williamson,

ED cided peeehdedbsovevess

Smith v. Organization of Foster Families,

Stanley v. Georgia,

PD cs dcnceecanetesheceanes

Stanley v. Illinois,

ED one ced hdekenwiobeunas

Thornburgh v. American College of

Obstetricians & Gynecologists,

ee EE cncccdecouseen ccticnees

Troxel v. Granville,

DE sccecbuuebiteseeveuess 7,

Turner v. Safley, ”

SEED écsucdttcadecunseuaces &

vii

Cited Authorities

Page

Village of Belle Terre v. Boraas,

PED és éccvcesaceheeedeseseses 19

Washington v. Glucksberg,

DT TD songensscegsndeteesenss 7

West Virginia Board of Education v. Barnette,

See EEE. Sbdc0cceeseccesccecs 10, 15, 22

Wisconsin v. Yoder,

SEED cut dbaednaesestecdecses 12

STATUTES AND REGULATIONS

U.S. Constr. amend. XIV, $b... ccc ccc ccc cece 8, 16

Exec. Order No. 13,087, 63 Fed. Reg. 30,097

Cache 6é 6aadnendede sieves seses 21

Exec. Order No. 11,478, 34 Fed. Reg. 12,985

DE, c6ndueGébeuesesbécnesotbscess 21

Ata. Cope §§ 13A-6-60(2), 13A-6-65(a)(3) ...... 9

Pt Cn cdédieuegbbseseevedueeeseed 20

Conn. Gen. Star. § 46, 81(a) ef seg. ............. 20

D.C. Cope Ann. § 1-2541(c) (1981) ............. 20

Pe EL IUD 6 vc decevocedveusesoese 9

vill

Cited Authorities

1991 Haw. Sess. Laws 2

IDAHO Cope § 18-6605 ..

Kan. Stat. ANN. § 21-3505(a)(1) .......0000 eee

La. Rev. Stat. ANN. § 14:89 2.0... . cee ee ees

1989 Mass. Legis. Serv. 516 (West) .............

2001 Md. Laws ch. 340 .

1993 Minn. Sess. Law Serv. ch. 22 (West) .......

Miss. Code Ann. § 97-29-59 ........0..cceeeee.

Mo. Rev. Star. § 558.011

Mo. Rev. Stat. § 566.090

1999 Nev. Stat. ch. 410 .

1997 N.H. Laws ch. 108

1991 N.J. Sess. Law ch. 519 (West) .............

2002 N.Y. Lawsch.2 ..

N.C. Gen. Stat. § 14-177

Page

Cited Authorities

Page

Se es POE 50-0 00006066866000000000 9

1995 R.I. Pub. Laws ch. 95-32 ..............45. 21

S.C. Cope Ann. § 16-15-120 .............0055. 9

es ee IED 6 5:606.000066000600 6008002 4, 16

Utah Code Ann. § 76-5-403(1) ................. 9

Va. Cope ANN. § 18.2-361(A) ...........00000 9

1992 Vt. Acts & Resolves 135 ................. 21

1981 Wisc. Laws ch. 112 tent e tent eee eee eees 21

Austin, Tex., Cope, Vol. I, tit. VII(2001) ........ 21

Dallas, Tex. Municipal Ordinance No. 24927 (2002),

amending Dallas, Tex. Cope ch. 15B

Fort Worth, Tex., Cope, ch. 17, art. I11(2001) .. = 21

Houston, Tex., Cope ch. 2, tit. XIV (2002) ....... 21

LEGISLATIVE MATERIALS

THe Fepera.ist No. 10 (James Madison)......... 7

Cited Authorities

MISCELLANEOUS

American Academy of Pediatrics, Co-Parent or

Second-Parent Adoption by Same-Sex Parents,

109 Pepiatrics 339 (Feb. 2002) ..............

Anna Quindlen, The Right to Be Ordinary:

Weddings, Scouting, Surviving —

Gay Men and Lesbians Are More Than

What They Do in Bed,

NewswekK, Sept. 11, 2000 at 82 ..............

Bryant & Demian, Relationship Characteristics

of American Gay and Lesbian Couples,

1 J. Gay & LesBian Soc. Servs. 101 (1994) ....

Carlyle Murphy and Bill Broadway, D.C.

Church Authorizes Same-Sex Unions,

Wasu. Post, Dec. 10, 2001 at BI] .............

Charles Black, The Unfinished Business

of the Warren Court,

46 Wasu. L. Rev. 3, 32 (1970) ...............

Christopher R. Leslie, Creating Criminals:

The Injuries Inflicted By “Unenforced”

Sodomy Laws,

35 Harv. C.R.-C.L.L. Rev. 103 (2000) .........

Page

Cited Authorities

Page

Dennis M. Mahoney, Church to Allow

Same-Sex Ceremonies,

Co_umsBus DispaTcH (O10),

i ee si ice ctesvasau asian ows 19

Gaiutra Bahadur and Andy Alford, A New Haven

for Gay Couples: the Suburbs Census Shows

Lesbians Lead Exodus from Cities to Newly

Accepting Areas,

Aus. AMER. STATESMEN, Aug. 22,2001 atAl .... 18

Harriet Barovick, Rainbow Network; As Gay

Families Increase, So Do Support Services

Designed Just For Them, -

Time, April 15, 2002 at F10 ................. 20

Jeremy Quittner, Paths to Success: Companies

With the Best Sexual Orientation Rules,

Tue Apvocate, Oct. 23, 2001 at 28 ........... 19-20

John C. Jeffries, Jr.,

Justice Lewis F. Powe tt, 302-05

(Charles Scribner’s Sons, 1994) .............. 17

Kelley Davenport, Family is Love:

There Gre 600,000 Same-Sex Couples

Heading Households in the United States,

According to Latest Census,

State J.-ReG. (SPRINGFIELD ILL.),

Bent. BO, FOGR AAG 20. nc cccccccccceccveces 18

xii

Cited Authorities

Laurie Goodstein, Church Allows Same-Sex

Ceremonies; Presbyterian Ministers May

Now Conduct “Holy Union” Services for

Gay Couples,

ORANGE County (CAL) REG.,

Se SE REE 06.60 ce sececcteecneeseuee

L. Kurdeck, Sexuality in Homosexual and

Heterosexual Couples,

SEXUALITY IN CLOSE RELATIONSHIPS

(K. McKinney & S. Sprecher eds. 1991) .......

Monty Phan, Newspapers Announce Gay Unions,

THE Miami HERALD, Aug. 21, 2002 atC3 .......

Patty Reihert, Supreme Court Takes Houston

Sodomy Case,

e- § SS > epee

PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION:

ANALYSIS AND RECOMMENDATIONS

DE. ctutesnddecéuceeuanddeducnsus

Sean Jensen, Former Viking Esora Tuaolo Has

Found Peace Since He Said He Was Gay,

St. PAuL PIONEER Press (MINN.),

Pt DED cecicacy ceuakheseiewd Jus

Page

——e

——

xii

Cited Authorities

Page

Thomas A. Stewart, Gay in Corporate America,

Fortune, Dec. 16, 1991 at 42 ................ 19

Times Will Begin Reporting Gay Couples’

Ceremonies,

N.Y. Times, Aug. 18, 2002 at A30 ............ 19

2 ee, 6 ere ae

No. 02-102

IN THE

Supreme Court of the United States

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ oF CERTIORARI TO THE COURT OF

APPEALS OF TEXAS - FOURTEENTH DisTRICT

—<—<—<—<—<_€<_<€_—_««««=—=====««==£&£==££&£=====£££=§«=—=_=—<==========£ $$$ $—$— $$ $$—<=_<=$$$ $< $$$ $$$ $$$ $—$$—$— $$$ $—$—$—$—$—$—$—$—$— $— $— $— $—_$— $—$—$—_—_—_—_—_—_—_—_—_—_—<—<—<—<—<—<—<——<———i

AMICI CURIAE BRIEF

OF THE

LOG CABIN REPUBLICANS

AND

LIBERTY EDUCATION FORUM

IN SUPPORT OF THE PETITIONERS

The Log Cabin Republicans and Liberty Education

Forum respectfully submit this brief amici curiae in support

of the petitioners in this case.’

1. Letters from petitioners and respondent indicating consent

to file this brief are on file with the Clerk. Pursuant to Rule 37.6,

amici state that no counsel for any petitioner or respondent authored

this brief in whole or in part. Nor did any person or entity, other than

amici, make a monetary contribution to the preparation or submission

of this brief.

INTEREST OF AMICI CURIAE

The Log Cabin Republicans is a nonprofit corporation

organized in 1978 under the laws of the District of Columbia.

The largest organization associated with the Republican

Party that is dedicated to interests of the gay and lesbian

community, the Log Cabin Republicans has over fifty

chapters across the United States, including several chapters

in the State of Texas. It stands for, among other things, limited

government, individual liberty, individual responsibility, free

markets, and a strong national defense, as well as the belief

that the moral values underlying these principles are

consistent with the equal protection of laws for gay and

lesbian Americans. Throughout its history, the Log Cabin

Republicans and its members have supported political

candidates, community activities and educational initiatives

that provide equal rights under the law to all Americans,

promote nondiscrimination against or harassment of persons

who are gay or lesbian, and encourage participation in the

Republican Party by gay and lesbian Americans. The

membership of Log Cabin Republicans includes both

heterosexual and homosexual Republicans.

The Liberty Education Forum was established as an

educational research foundation dedicated to advancing the

conservative principles of individual liberty, individual

responsibilities, free markets and limited government. Since

1996, the Liberty Education Forum has advanced these

conservative principles by sponsoring a variety of education

publications and programs that endeavor to protect the

individual freedoms of gay and lesbian Americans.

———

——>— ee

SUMMARY OF ARGUMENT

The State of Texas extended its criminal law into the

homes of its citizens in an unjustified intrusion into the sphere

of protected privacy that the Constitution of the United States

creates for certain intimacies expressed in American family

life. Amici join the Petitioners before this Court to argue that

the fundamental privacy rights ensconced in the Bill of Rights

and incorporated in the Fourteenth Amendment entitle all

Texans under the Due Process Clause of the Fourteenth

Amendment to demand that the Texas Legislature provide

- substantial justification for its intrusion into the intimate lives

of some Texans. We believe that it cannot.

Allowing this Texas law to stand would jeopardize

longstanding constitutional traditions that have placed the

highest value upon both the protection of the American family

and the sanctity of the home against governmental intrusion.

The mere invocation by the State of Texas of the term

“morality” cannot defend a law that so implicates its citizens’

most intimate affairs in the most private of realms.

This Court confronted similar issues in Bowers vy.

Hardwick. See 478 U.S. 186 (1986). We acknowledge

that the text of the United States Constitution has not been

altered since that time. Significant social and cultural

developments since Bowers, though, have resulted in a clearer

understanding that members of a// American families have a

fundamental right to enjoy intimate association without fear

of government intrusion, and that the variety of American

family life that must be protected under that rubric includes

gay and lesbian couples. Thus, whatever might have been

the presumed propriety of Bowers in 1986, it is clear now

that its holding must be overturned.

;

The Texas law challenged here and others like it have

survived under the protection of the Bowers precedent, which

denied to gays and lesbians the heightened-scrutiny

protections for their intimate associations, which have been

recognized to protect the private, intimate associations of

other American families. That precedent must be abjured,

and such laws must be subjected to heightened scrutiny,

which will require states to offer a far more powerful

justification than the one offered here: that the State of Texas

has criminalized gay and lesbian relationships simply because

a majority of Texas legislators once disapproved of them.

Such legislation is “inconsistent, not only with that equality

of rights which pertains to citizenship, national and state,

but with the personal liberty enjoyed by everyone within the

United States.” Plessy v. Ferguson, 163 U.S. 537 (1896)

(Harlan, J., dissenting).

Amici also join the Petitioners’ argument that the Texas

Homosexual Conduct Law violates the Equal Protection

Clause of the Fourteenth Amendment because it bears no

rational relationship to a legitimate state interest. The Court

should hold that mere “morality” cannot justify state-

sponsored discrimination against gay and lesbian Americans.

See Romer v. Evans, 517 U.S. 620 (1996). (Amici do not

repeat Petitioners’ argument in this brief.)

ARGUMENT

The State of Texas has criminalized homosexual conduct

in Section 21.06 of the Texas Penal Code (“Homosexual

Conduct Law” or “Section 21.06”). Texas threatens to punish

such conduct with imprisonment even if engaged in by

consenting adults in a committed relationship, behind closed

doors in their own home. At issue in this case is whether the

fundamental right to privacy traditionally afforded in

American family life really does protect its most intimate of

associations.

The Texas Court of Appeal — Fourteenth District found

that “homosexual conduct” was not a right “implicit in the

concept of ordered liberty” or “deeply rooted in this Nation’s

history and tradition.” Lawrence v. State of Texas, 41 S.W.3d

349, 361 (Tex. App. — Houston [14th District] 2002).

The court also concluded that the state’s prohibition of

homosexual conduct is rationally related to a legitimate state

interest, the preservation of public morality. /d. at 356.

This Court, in Bowers, made some assertions that could

provide sanction for the Fourteenth District’s conclusions.

There the Court refused to recognize that the fundamental

rights that the Constitution generally afforded to the American

family included protection of certain expressions of intimacy

that various states group under the label “sodomy.” Perhaps

capturing the sentiment of at least some Americans in 1986,

Chief Justice Burger characterized instances of that

expression undertaker by members of the same sex, though

both private and consensual, as “an offense of ‘deeper

malignity’ than rape, a heinous act ‘the very mention of which

is a disgrace to human nature, and ‘a crime not fit to be

named.”’” Bowers, 106 U.S. at 197.

Whatever the validity of such calumnies as an expression

of the public morality of 1986, they represent today only

ethical arcana. The increased social visibility of gays and

lesbians since Bowers has resulted in a deeper and broader

understanding of American family life, one that includes

families comprised of gays and lesbians. Indeed, gay and

lesbian couples hold “covenant ceremonies” in many of our

Nation’s churches and synagogues and celebrate those

ceremonies with the community in our newspapers.

These dramatic social and cultural developments have

been matched by significant change in demographics,

commerce and law since Bowers. Today, the public presence

of gay and lesbian families in American life is undeniable.

A significant number of American businesses recognize an

American family that includes gays and lesbians by providing

to such families the same employment benefits that are

afforded to married heterosexual couples. The laws of many

of our state and local governments have moreover matured

to support an institution of family comprised of gays and

lesbians, including laws that protect gays and lesbians from

discrimination and that allow them to adopt children.

Thus, despite Chief Justice Burger’s explication of

American morality in 1986, it is clear in 2003 that gay and

lesbian couples are no longer the targets of disdain and scorn

that he described. The Court can no longer deny that

the privacy protections generally afforded the American

family must necessarily protect too their rights to intimate

association without eviscerating the privacy protections for

all other American families. All of this demands that the Court

re-examine its holding in Bowers and strike down laws such

as the Texas law at issue as an unjustified state intrusion

into the private lives of American citizens, an assault on

the concept of ordered liberty and a violation of the

U.S. Constitution.

I. The Court Should Reconsider Bowers v. Hardwick and

Recognize that Fundamental and Constitutionally

Protected Right to Privacy Protects the Intimate

Relationships for Ali American Families from

Unjustified State Intrusion.

The foundational commitment of the United States of

America was to ensure to “all Men” the “unalienable

Rights” of “Life, Liberty, and the Pursuit of Happiness.”

Our Framers acknowledged this commitment by constructing

a Constitution designed to prevent the majoritarian abuse of

power and afford each American a sphere of protected

conduct that could not be invaded by any combination of

interests. THe Feperaist No. 10 (James Madison). Those

protections are included in the Due Process, Privileges or

Immunities, and federal-government power-restricting

Clauses of the Bill of Rights, as supplemented by the

Fourteenth Amendment and construed by this Court. —

See Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923); Pierce

v. Society of the Sisters of the Holy Name of Jesus & Mary,

268 U.S. 510, 534-35 (1925); Poe v. Ullman, 367 U.S.

497, 539-45 (1961) (Harlan, J., dissenting); Griswold v.

Connecticut, 381 U.S. 479, 486-99 (1962); Roe v. Wade, 410

U.S. 113, 152-53 (1973); Doe v. Bolton, 410 U.S. 179, 200

(1973); Cleveland Bd. Of Educ. v. LaFleur, 414 U.S. 632

(1974); Carey v. Population Servs. Int'l, 431 U.S. 679, 684-

85 (1977); Moore v. City of East Cleveland, 431 U.S. 494,

501-03 (1977); Cruzan v. Director, Missouri Dep t. of Health,

497 U.S. 261, 278-79 (1990); Planned Parenthood v. Casey,

505 U.S. 833, 846-51 (1992); Prince v. Massachusetts, 321

U.S. 158 (1994); Washington v. Glucksberg, 521 U.S. 702,

719-20 (1997); County of Sacramento v. Lewis, 523 U.S. 833,

840 (1998); Troxel v. Granville, 530 U.S. 57, 65-66 (2000);

see also Corfield v. Coryell, 6 Fas. Cas. 546 (C.C.E.D. Pa.

1823) (no. 2320).

This Court has made clear that the right to private

relationships within families is one of the inalienable rights

ensconced in the Bill of Rights guaranteed to all Americans,

and is applicable to the states through the Fourteenth

Amendment. The Court has provided the highest level of

constitutional protection under the Due Process Clause of the

Fourteenth Amendment to American family life because family

“is deeply rooted in this Nation’s history and tradition” and

contributes so powerfully to the happiness of individuals. Moore,

431 U.S. at 503 (plurality opinion); see Prince, 321 U.S. at 166

(1994). The “freedom of personal choice in matters of . . . family

life is one of the liberties protected by the Due Process Clause

of the Fourteenth Amendment.” Cleveland Bd. of Educ., 414

U.S. at 639-40. This protection arises because the Constitution

prevents government “from standardizing its [citizens] by

forcing all to live in certain narrowly defined family patterns.”

Id. at 506 (plurality opinion).

The Court has afforded these constitutional protections

within a broad context of American family life. In Griswold,

the court defined the family as “an association that promotes a

way of life, not causes; a harmony in living, not political faiths;

a bilateral loyalty, not commercial or social projects.” Griswold,

381 U.S. at 486. The Court in Moore in fact warned of “cutting

off any protection of family rights at the first convenient,

if arbitrary boundary the boundary of the nuclear family.”?

Moore, 431 U.S. at 502 (plurality opinion).

This Court’s recognition that the family is not a cause, not

a polity, not a project has been-supplemented by an explanation

of what a family is: at its heart, it is an intimate association.

2. Notwithstanding its Bowers holding, the Court traditionally

has rejected a narrow analysis of fundamental rights afforded to the

family. See, e.g., Moore, 431 U.S. at 504-05.

The Court has thus consistently recognized that a right to familial

association must include a right to intimate association. See Paris

Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973); Roberts v.

United States Jaycees, 468 U.S. 609, 617-18 (1984); Board of

Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537

(1987). The State of Texas, for one, also recognized the

importance of intimate association for some when it am*~ . a

the Texas Penal Code to legalize sodomy for hete.osexual

couples.’ |

The Texas Homosexual Conduct Law and others like it in

Oklahoma, Missouri, and Kansas stand for the principle that

the fundamental right to intimate associations in family life is

afforded only to those who adhere to an ideal of family once

held by the Texas Legislature.‘ The Texas law, by its terms,

applies only to same-sex couples. Broader sodomy laws that

apply (at least facially) to all Americans remain on the books in

nine other American states.’ While these broader laws do not

3. The legislature only singled out “‘the private homosexual acts

of consenting adults’” for continued criminalization out

of “‘fear {| [of] a backlash against the entire Penal Code

[revision] should such acts be decriminalized.’” Baker v. Wade,

553 F. Supp. 1121, 1151 (N.D. Tex. 1982) (quoting Von Beigel,

The Criminalization of Private Homosexual Acts: A Jurisprudential Case

Study of a Decision by the Texas Bar Penal Code Revision Committee,

6 Human Ruouts 23 (1977)), aff'd on other grounds, 743 F.2d 236 (Sth

Cir. 1984), rev'd, 769 F.2d 289 (Sth Cir. 1985), rehearing én banc denied,

774 F.2d 1285 (Sth Cir. 1985), cert. denied, 478 U.S. 1022 (1986).

4. See Oxxa. Star. tit. 21, § 866 (as applied to exclude heterosexual

conduct, see Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986));

Mo. Rev. Stat. § 566.090; Kan. Star. Ann. § 21-3505(a)(1).

5. Ata. Cove §§ 13A-6-60(2), 13A-6-65(a)(3); FLa. Star. ANN.

§ 800.02; IpaHo Cope § 18-6605; La. Rev. Star. ANN. § 14:89; Miss.

Cone ANN. § 97-29-59; N.C. Gen. Star. § 14-177; S.C. Cove Ann. § 16-

15-120; Utan Cope ANN. § 76-5-403(1); Va. Cove Ann. § 18.2-361(A).

facially discriminate against gays or lesbians, they too

are unconstitutional. All of these laws constitute an

unconstitutional attempt to enforce its view of family life by

propelling the criminal lav’ deep into the American home

without even claiming .o vindicate the state interests of

protecting public decency, protecting vulnerable persons, or

restricting coercive commercial trade in activities offensive

to public morality.

In response to any constitutional concern, the State of

Texas merely suggests that gay and lesbian Texans should

avail themselves of the legislative process to win their

fundamental rights. Patty Reinert, Supreme Court Takes

Houston Sodomy Case, Hous. Curon., Dec. 3, 2002 at 1.

But the fundamental right of privacy reserved to all citizens

by the United States Constitution enjoys protection from the

vagaries of the political process; it is thus no answer to tell

those deprived of their privacy rights to protect them in the

political arena.

Were Texas a political subdivision of the United

Kingdom, which recognizes a parliamentary government

where the legislative will is supreme, its position might be

correct, but American states must attend to the radically

different form of government that the United States has

developed: “The very purpose of a Bill of Rights was to

withdraw certain subjects from the vicissitudes of political

controversy. . . . [F]undamental rights may not be submitted

to vote; they depend on the outcome of no elections... .”

West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

Amici thus believe that this case presents to the Court an

important opportunity for it to clarify that the privacy

protections the Court has expiicated for the expression of

rn PII nm ee

intimate relationships in American family life, and to strike

down laws that violate that privacy protection for some

Americans without even pretending to vindicate an

articulated state interest.

Should the Court fail to overrule Bowers and allow the

State of Texas to so intrude upon the most intimate of

relationships of its citizens in the most private of realms,

then we might almost as well not have any law of

constitutional limitations, partly because the thing

is sO Outrageous in itself, and partly because a

constitrtional law inadequate to deal with such

an outrage would be too feeble, in method and

doctrine, to dal with a very great amount of

equally outrageous material. Virtually all the

intimacies, privacies and autonomies of life would

be regulable by the legislature — not necessarily

by the legislature of this year or last year, but, it

might be, by the legislature of a hundred years

ago, or even by an administrative board in due

form thereunto authorized by a recent or long-dead

legislature.

Charles Black, The Unfinished Business of the Warren Court,

46 Wasu. L. Rev. 3, 32 (1970).

A. Protection of a Broadly Defined Family Is Implicit in

the Concept of Ordered Liberty for All Americans.

The Court has long recognized certain rights to be

fundamental to the concept of ordered liberty for all

Americans because “the Constitution embodies a promise

that a certain private sphere of individual liberty will be kept

largely beyond the reach of government.” Thornburgh v.

American College of Obstetricians & Gynecologists,

476 U.S. 747, 772 (1986). Among those rights implicit in

the ordered concept of liberty, the Court has consistently

acknowledged a “private realm of family life which the state

cannot enter.” Prince, 321 U.S. at 166; see also Roe at 152-

153; Wisconsin v. Yoder, 406 U.S. 205, 231-33 (1973); Stanley

v. Illinois, 405 U.S. 645, 651 (1972); Ginsburg v. New York,

390 U.S. 629, 639 (1968); Loving v. Virginia, 388 U.S. 1

(1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942).

Affirming such values of American liberty long before

the Court’s progeny of Griswold, Justice Brandeis wrote:

The makers of our Constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance of

man’s spiritual nature, of his feelings and of his

intellect. They knew that only a part of the pain,

pleasure and satisfaction of life are to be found in

material things. They sought to protect Americans

in their beliefs, their thoughts, their emotions and

their sensations. They conferred, as against the

government, the right to be let alone — the most

comprehensive of rights and the right most valued

by civilized men.

Olmstead v. United States, 277 U.S. 438, 478 (1928)

(dissenting opinion).

The Court has not limited these constitutional protections

only to Americans who are married. Since Griswold, this

Court has recognized that all Americans, regardless of status,

en OEE cn mennee

possess the same liberty interest to make their own intimate

choices in “matters so fundamentally affecting a person.”

Eisenstadt v. Baird, 405 U.S. 438, 452 (1972); see also Casey,

505 U.S. at 898; Carey, 431 U.S. at 685. Neither do those

activities and relationships lose their intimate status when

engaged in for reasons other than procreation. In fact, the

Court has reasoned that certain fundamental rights arise not

just because they touch upon childbearing, but because they

arise solely in the context of a “field that by definition

concerns the most intimate of human activities and

relationships.” Carey, 431 U.S. at 685.

The protections of American family life have not been

limited by an immutable constitutional view of the American

family. See, e.g., Troxel, 530 U.S. at 63 (“The demographic

changes of the past century make it difficult to speak of an

average American family. [It] varies greatly from household

to household”); id. at 85 (Stevens, J., dissenting); id. at 98-

101 (Kennedy, J., dissenting); Michael H. v. Gerald D., 491

U.S. 110, 133 (1989) (concurring opinion of O’Conner and

Stevens, J.J.) (Recognizing “enduring ‘family’ relationships

may develop in unconventional settings”); Stanley, 405 at

651 (Even “family relationships unlegitimized by a marriage

ceremony’).

In short, this Court has long recognized that the

U.S. Constitution protects a broadly defined concept of

American family life and the intimate relationships implied

by the existence of those families — not as a function of

reproduction, but as a function of the inherent right of each

individual to form the intimate connections of his or her own

choosing.

B. Intimate Relationships Occupy a “Private Realm of

Family Life the State Cannot Enter.”

Consistent with the ideals of liberty and the pursuit of

happiness, the Court has consistently recognized that

paramount to the security of liberty protected by the Bill of

Rights are “choices to enter into and maintain certain intimate

human relationships . . . against undue intrusion by the state

because [of] the role of such relationships in safeguarding

the individual freedom that is central to our constitutional

scheme.” Roberts, 468 U.S. at 617-618. “[T]he constitutional

shelter. . . reflects the realization that individuals draw much

of their emotional enrichment from close ties with others.

Protecti[on] . . . safeguards the ability independently to define

one’s identity that is central to any concept of liberty.” Jd. at

619; see also Quiltoin v. Walcott, 434 U.S. 246, 255 (1978);

Smith v. Organization of Foster Families, 431 U.S. 816, 844

(1977); Cleveland, 414 U.S. at 639-40; Olmstead, 277 U.S.

at 478 (Brandeis, J., dissenting); Bd. of Dirs. of Rotary Int'l,

481 U.S. at 545. The Court has further held that personal

affiliations entitled to such protection were those exemplified

in family relationships. Roberts, 468 U.S. at 619.

Paramount to the protection of choosing and maintaining

intimate human relationships is sexual intimacy, which

constitutes “a sensitive, key relationship of human existence,

central to family life, community welfare, and the

development of human personality.” Paris Adult Theatre I,

413 U.S. at 63; see Bowers, 106 U.S. at 205 (dissenting

opinion) (quoting Roberts, 468 U.S. at 619) (the “ability

independently to define one’s identity that is central to any

concept of ‘liberty’ cannot truly be exercised in a vacuum;

we all depend on the ‘emotional enrichment of close ties

with others’”). Sexual intimacy is in fact necessary to form

and nurture intimate relationships central to families of all

Americans, regardless of sexual orientation.°

This Court, even when some find a certain type of

American family unpopular or immoral, has kept a citizen’s

right to choose with whom one forms intimate relationships

elevated from government’s reach. See, e.g., Loving, 388 U.S.

at 12. Justice Jackson explained for this Court,

we apply the limitations of the Constitution

with no fear that freedom to be intellectually

and spiritually diverse or even contrary will

disintegrate the social organization....

[Freedom] to differ is not limited to things that

do not matter much. That would be a mere shadow

of freedom. The test of its substance is the right

to differ as to things that touch the heart of the

existing order.

West Va. Bd. of Educ., 319 U.S. at 641-42.

The U.S. Constitution therefore reserves to all Americans

the inalienable right to choose those with whom they

make their most intimate of associations and maintain

that relationship free from unjustified state intrusion.’

6. See, e.g., L. Kurdeck, Sexuality in Homosexual and

Heterosexual Couples, Sexua.ity tN CLOSE RELATIONSHIPS 177-91

(K. McKinney & S. Sprecher eds. 1991).

7. This Court has, of course, recognized the right of private

organizations to develop their own rules of associational exclusion

in contexts much less intimate, much less central to human happiness,

and thus much less constitutionally protected than the associations

at issue in this case. See Boy Scouts of Am. v. Dale, 530 U.S. 640

(Cont'd)

So important is this right that the Court has found that the

First Amendment broadly protects al/ “those relationships,

including family relationships, that presuppose deep

attachments and commitments to the necessarily few

other individuals with whom one shares not only a

special community of thoughts, experiences, and beliefs

but also distinctly personal aspects of one’s life.” Rotary Int 'l,

481 U.S. at 545.

It is therefore deeply rooted in our Nation’s rich tradition

that all Americans are entitled to be free from the reach of a

criminal law predicated solely on the state’s desire to dictate

the consensual, private, physical, and emotional interactioms

undertaken between citizens in the privacy of their homes.

For if the Due Process Clause of the Fourteenth Amendment

has any meaning, it must protect a “private realm of family

life which the state cannot enter.” Moore, 431 U.S. at 499

(plurality opinion) (quoting Prince, 321 U.S. at 166).

(Cont'd)

(2000). Because that case presented a situation in which the private

organization wished to exclude gays from association, a decision

upholding laws like Section 21.06 would directly suggest that gay

and lesbian Americans lack for their most intimate associations

_ fundamental protections that can be employed by heterosexwal

Americans in casual association to exclude gays and lesbians. So far

from rendering sexual orientation a protected category, then, the Court

would declare that gays and lesbians are, and may be treated as, a

pariah class against whom — but never for whom - the rights of private

association may function.

~ 17

C. Social and Cultural Developments Since 1986, and a

Decent Regard for the Rights of All Americans,

Require that this Court Revisit its Bowers Holding.

Despite the recognition of previous fundamental rights

afforded in American family life, particularly the right to form

intimate associations, the Court in Bowers refused to

rec »gnize such rights extended to gay and lesbian Americans.

Rather, the Court found that “[n]o connection between family,

marriage or procreation on the one hand and homosexual

activity on the other hand has been demonstrated, either by

the Court of Appeals or by respondent.” Bowers, 106 U.S. at

191.

As the quote above indicates, Bowers embraces

the notion that gay and lesbian relationships and their

intimate associations do not deserve the fundamental

privacy protections provided to heterosexual relationships

and their intimate associations. Bowers was wrong when

written, as a signatory of the majority opinion subsequently

acknowledged. See John C. Jeffries, Jr., Justice Lewis

F. Powe, 302-05 (Charles Scribner’s Sons, 1994). In the

seventeen years since that decision, however, American

culture and mores have developed in a manner that belies

that conclusion and renders it inappropriate to the world of

the twenty-first century.

The Court must therefore reconsider its prior denial of

the fundamental constitutional right to privacy to an entire

class of Americans — gays and lesbians — in light of the

revolution in American cultural development in the last

twenty years. This Court has an obligation now to give full

meaning to am essential aspect of liberty, thereby correcting

the failure of an earlier generation and a gross injustice to a

class of American citizens. See, e.g., Turner v. Safley, 482

U.S. 78, 94-99 (1987); Roe, 410 U.S. at 861-63; Loving, 388

U.S. at 12; Meyer, 262 U.S. at 402; Casey, 505 U.S. at 847-

48. Indeed, the very foundation upon which Bowers was built

has been shown to be false. See Casey, 505 U.S. at 862-63.

Since Bowers, our Nation has come to acknowledge and

respect that American family life includes gay and lesbian

relationships.* The 2000 United States Census in fact counted

at least 600,000 households of unmarried same-sex partners,

living in 99.3% of American counties.’ Gay and lesbian

relationships are regarded as enduring, providing long-term

and deep sustenance to each member of the couple. See, e.g.,

Bryant & Demian, Relationship Characteristics of American

Gay and Lesbian Couples, 1 J. Gay & Lessian Soc. Servs.

101 (1994).

Gay and lesbian couples moreover celebrate

commitments to their relationships in our Nation’s churches

and synagogues.'® Furthermore, in the long-standing

8. Gaiutra Bahadur and Andy Alford, A New Haven for Gay

Couples: The Suburbs Census Shows Lesbians Lead Exodus from

Cities to Newly Accepting Areas, Aus. Amer. STATESMEN, Aug. 22,

2001 at Al; Anna Quindlen, The Right to Be Ordinary: Weddings,

Scouting, Surviving - Gay Men and Lesbians Are More Than What

They Do in Bed, Newsweek, Sept. 11, 2000 at 82.

9. Kelley Davenport, Family is Love: There are 600,000 Same-

Sex Couples Heading Households in the United States, According to

Latest Census, State J.-Rec. (Sprinoriecp Ii.), Sept. 20, 2002 at 6A.

This figure is likely understated because of current U.S. Census

Bureau methodology.

10. See, e.g., Laurie Goodstein, Church Allows Same-Sex

Ceremonies: Presbyterian Ministers May Now Conduct “Holy

(Cont'd)

American tradition of celebrating such events with the

community, they now celebrate their unions in our Nation’s

newspapers.'' In its announcement to publish such events,

the New York Times wrote, “[i]n making this change, we

acknowledge the newsworthiness of a growing and visible

trend in society toward public celebrations of commitment

by gay and lesbian couples — celebrations important to many

of our readers, their families and friends.” Times Will Begin

Reporting Gay Couples’ Ceremonies, N.Y. Times, Aug. 18,

2002 at A30. Gay and lesbian relationships cannot therefore

be dismissed “as a mere collection of unrelated individuals.”

Smith, 431 U.S. at 844; cf. Village of Belle Terre v. Boraas,

416 U.S. 1 (1974).

Since Bowers, both commerce and law have changed

dramatically to recognize family relationships formed by gay

and lesbian Americans. Leading businesses have recognized

the importance of gay and lesbian families by providing

domestic partnerships employment benefits equal to those

of heterosexual married couples. See, e.g., Thomas A.

Stewart, Gay in Corporate America, Fortune, Dec. 16, 1991

at 42; Jeremy Quittner, Paths to Success; Companies With

the Best Sexual Orientation Rules, The Advocaté, Oct. 23,

(Cont'd)

Union” Services for Gay Couples, Onance County (Cat) Rec., May

25, 2000 at AS; Carlyle Murphy and Bill Broadway, D.C. Church

Authorizes Same-Sex Unions, Wasu. Post, Dec. 10, 2001 at Bl;

Dennis M. Mahoney, Church to Allow Same-Sex Ceremonies,

Co.umsus Dispatcu (Ono), Nov. 18, 2000 at 1A.

11. In an undeniable trend, over 180 newspapers in United States

communities now publish announcement of gays ard lesbians

“unions.” See, e.g., Monty Phan, Newspapers Announce Gay Unions,

Tue Miami Herap, Aug. 21, 2002 at C3.

2001 at 28. Today, nine states, the District of Columbia, and

129 municipalities offer government-sponsored domestic-

partner benefits. In recognition of the sheer number of family

relationships formed by gays and lesbians, the American Law

Institute has devoted an entire chapter to domestic partnership

in its most recent work on family law. See PRINCIPLES OF THE

Law OF FAMILy DissOLUTION: ANALYSIS AND RECOMMENDATIONS

(A.L.L. 2002).

Like other American families, many gay and lesbian

couples adopt and raise children even though they cannot

together procreate. See, e.g., Sean Jensen, Former Viking

Esora Tuaolo Has Found Peace Since He Said He Was Gay,

St. PauL Pioneer Press (Minn.), Nov. 17, 2002 at 1C (Mr.

Tuaolo and his partner are the adoptive parents of twins);

Harriet Barovick, Rainbow Network: As Gay Families

Increase, So Do Support Services Designed Just For Them,

Time, April 15, 2002 at F10. In support of these families, the

vast majority of every state permits gays and lesbians to adopt

children individually, jointly and/or through second-parent

adoptions."

Recognizing that American family life includes gays and

lesbians but acknowledging the lingering animus towards

them, an ever-increasing number of states and municipalities,

including at least four cities in Texas, have now added sexual

orientation to laws barring discrimination in housing,

employment, public accommodations, and other areas.'’

12. See, e.g., American Academy of Pediatrics, Co-Parent or

Seco~d-Parent Adoption by Same-Sex Parents, 109 Pepiatrics 339

(Feb. 2002).

13. 1999 Cal. Stat. 592; Conn. Gen. Star. § 46, 81(a) ef seg.;

D.C. Cope Ann. § 1-2541(c) (1981); 1991 Haw. Sess. Laws 2; 2001

(Cont'd)

Even the executive branch of the United States government

respects that American family life includes homosexuals and

that gays and lesbians are deserving of protection from

discrimination, notwithstanding the families they choose to

form.'*

Indeed, this Court has itself acknowledged that

“it appears that homosexuality has gained greater societal

acceptance” since the days of Bowers. Boy Scouts of Am.,

520 U.S. at 660. As demonstrated by these undeniable,

dramatic changes in American culture and mores, Bowers

no longer represents an accurate statement of the national

mind, much less the constitutional law.

As conservative organizations that recognize the

importance of reliance upon precedent and strict construction,

amici do not support “judicial activism” or decisions that

create “constitutional law having little or no cognizable roots

in the language or design of the Constitution.” Bowers, 478

U.S. at 194. Overturning Bowers, however, will not be an

act of judicial activism, nor will it create rights out of whole

(Cont'd)

Md. Laws ch. 340; 1989 Mass. Legis. Serv. 516 (West); 1993 Minn.

Sess. Law Serv. ch. 22 (West); 1999 Nev. Stat. ch. 410; 1997 N.H.

Laws ch. 108; 1991 N.J. Sess. Law ch. 519 (West); 2002 N.Y. Laws

ch. 2; 1995 R.I. Pub. Laws ch. 95-32; 1992 Vt. Acts & Resolves

135; 1981 Wisc. Laws ch. 112; Austin, Tex., Cope, Vol. I, tit. VII

(2001); Dallas, Tex. Municipal Ordinance No. 24927 (2002),

amending Dallas, Tex. Cope ch. 15B; Fort Worth, Tex., Cope,

ch. 17, art. II] (2001); Houston, Tex., Cope ch. 2, tit. XIV (2002).

14. See Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (Aug. 8,

1969), as amend by Exec. Order No. 13,087, 63 Fed. Reg. 30,097

(June 2, 1998) (adding “sexual orientation” to the non-job-related

grounds upon which an employment decision cannot be based).

cloth.'* Bowers itself worked the unwarranted judicial

activism by excluding a class of people — gays and lesbians

— from a set of long-established constitutional rights

without the slightest textual support for its conclusions.

The Constitution does not make gays and lesbians second-

class citizens. It does not, of course, mention sexuality at

all. Any attempt, like that of Bowers, then, to deprive gays

and lesbians of certain rights provided to other Americans

itself works judicial activism — the particularly ugly judicial

activism of writing into the Constitution the notion that

“We, the Majority of Justices, disapprove of gays and

lesbians, and therefore exclude them from otherwise

universal protections.”

The fundamental right to privacy guaranteed all

Americans must stand as a “necessary corollary of giving

individuals freedom to choose how to conduct their lives” —

and with whom — “is acceptance of the fact that different

individuals will make different choices.” Bowers, 478 U.S.

at 205-06 (Blackmun, J., dissenting). Bowers denied

erroneously a fundamental constitutional right of American

citizens over and against the state for which no countervailing

rights of other individuals were at stake. See also West Va.

Bd. of Educ., 319 U.S. 624, 630 (1943); Brown v. Bd. of

Educ., 347 U.S. 483, 494-95 (1954). In his dissent to Bowers,

Justice Blackmun wrote:

The fact that individuals define themselves in a

significant way through their intimate sexual

15. No matter the basis for the Court's Bowers holding, Amici

do not “believe that . . . judicial exercise of judgment could be avoided

by freezing ‘due process of law’ at some fixed stage of time or thought

is to suggest that the most important aspect of constitutional

adjudication is a function for inanimate machines and not for judges.”

Rochin v. State of California, 342 U.S. 165, 171-72 (1952).

relationships with others suggests, in a nation as

diverse as ours, that there may be many ‘right’

ways of conducting those relationships, and that

much of the richness of a relationship will come

from the freedom to choose the form and nature

of these intensely personal bonds.

Id. at 205 (Blackmun, J., dissenting).

Indeed, “[u]nless we close our eyes to the basic reasons

why certain rights associated with the family have been

accorded shelter under the Fourteenth Amendment’s Due

Process Clause, we cannot avoid applying the force and

rationale of these precedents to the family choice involved

in this case.” Moore, 431 U.S. at 499.

D. The Texas Homosexual Conduct Law and Others Like

It Constitute an Unjustified State Intrusion on

Ordered Liberty; and If the Rights of All Americans

to Undertake Intimate Expressive Conduct Is to Be

Protected, All “Sodomy” Laws Must Be Struck Down.

Recognition of the fundamental right to privacy for

Americans to express their most intimate of family

associations does not end the constitutional inquiry as

“(njot all governmental intrusion is of necessity

unwarranted.” Casey, 505 U.S. at 875 (opinion of O’Connor,

Kennedy, and Souter, J.J.). The Court must also consider

whether laws like the Texas Homosexual Conduct Law

further a compelling state interest without imposing an undue

burden on those affected. Jd. at 878. See also Thornburgh,

476 U.S. at 828-29. Such considerations require that this

Court not only invalidate the specific Texas statute before it,

but that the Court strike down all laws that purport to

illegalize “sodomy.”

There exists no countervailing state interest for these

laws comparable to those weighed by this Court in other

recent cases involving fundamental liberties.'° The lower

court in fact recognized that the justification urged by Texas

was a generalized and amorphous interest in “moral values,”

though the state has been unable or unwilling to delineate

the specific public values at stake!” Lawrence, 41 S.W.3d at

354. Moreover, the means with which Texas and other states

have chosen to advance their “interests” unduly burden the

fundamental right of all Americans to life, liberty, and the

pursuit of happiness for they use “the full power of the

criminal law,” Poe, 367 U.S. at 548 (Harlan, J., dissenting),

to enforce their aesthetic whims.'* These statutes must fall.

Neither are such laws that are facially neutral with

regard to forbidding “sodomy” acceptable. Because these

laws define sexual intimacy in such a way that makes criminal

virtually any form of intimate expression available to same-

sex couples, they condemn de facto gay and lesbian

relationships. The Court would work the profoundest nullity

to forbid Texas to regulate “sodomy” for gay and lesbian,

16. See, e.g., Casey, 505 U.S. at 871-79 (opinion of O’Connor,

Kennedy, and Souter, J.J.) (potential human life); Troxel, 530 U.S.

at 73 (plurality opinion of O’Connor, J.) (welfare of children);

Cruzan, 497 U.S. at 280-281 (existing human life).

17. Amici further believe that other debunked justifications for

such laws (e.g., such as public health concerns) veil an animus or

bias towards gays and lesbians and do not constitute a compelling

interest to so burden the fundamental right of Americans to express

their most intimate of family associations.

18. Christopher R. Leslie, Creating Criminals: The Injuries

Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L.L. Rev.

103 (2000).

but not for heterosexual, couples but effectively allow other

states to criminalize virtually all intimate expressive conduct

of which gays and lesbians couples are capable.

Meanwhile, the Court, as noted above, has already

extended the privacy protection to intimate heterosexual

conduct that occurs out of wedlock and for purposes other

than for procreation. No constitutional explanation can now

exist, then, for this Court to differentiate among kinds of

private, consensual, intimate expressions between couples,

except procreation-regarding distinctions the Court has long

since rejected or those based upon the biased, uniformed,

and repudiated view of same-sex intimacy express by Chief

Justice Burger in Bowers.

The thinly-veiled interests promulgated by these states,

as exemplified by the State of Texas, and aimed at forcing a

view of American family life on all citizens cannot support

laws that represent a crack in the foundational commitment

of the Untied States of America. The Texas Homosexual

Conduct Law and all others like it infringe upon the most

personal of liberties guaranteed to all Americans by the U.S.

Constitution and should be struck down.

CONCLUSION

For all of the foregoing reasons, amici respectfully urge

that Bowers be overruled and the judgment of the Texas Court

of Appeals — Fourteenth District be reversed.

Respectfully submitted,

C. MARTIN MEEKINS

Counsel of Record

C. RANDOLPH FISHBURN

Wuire & Case LLP

633 West Fifth Street

Suite 1900

Los Angeles, CA 90071

(213) 620-7700

M. ELAINE JOHNSTON

Wuire & Case LLP

1155 Avenue of the Americas

New York, NY 10036

Counsel for Amici Curiae

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.