Amicus Curiae Brief — Lawrence v. Texas

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A : FILED

No. 02-102 JAN 16 2003

| OPFE OF TAR RAM

In The

Supreme Court of the Anited States

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

Vv.

STATE OF TEXAS

On Writ Of Certiorari

To The Court Of Appeals Of Texas,

Fourteenth District

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

ALFRED P. CARLTON, JR.*

President

AMERICAN BAR ASSOCIATION

RUTH N. BORENSTEIN

BETH S. BRINKMANN

SETH M. GALANTER

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5215

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ..........ccccccceeceeeeees

THE TEXAS HOMOSEXUAL CONDUCT LAW IS

UNCONSTITUTIONAL AND CONTRARY TO THE

RULE OF LAW BECAUSE IT INFRINGES INDIVID-

UAL LIBERTY AND IRRATIONALLY SINGLES OUT

A DISCRETE GROUP FOR SECOND-CLASS TREAT-

A. Laws That Criminalize Private, Noncommer-

cial Sexual Conduct Between Consenting

Adults Contravene The Rule Of Law.............

The ABA’s policies urging the repeal of

sodomy laws and prohibiting sexual ori-

entation discrimination reflect a growing

consensus that the rule of law does not

tolerate intrusions into private, non-

commercial sexual conduct between con-

senting adults or invidious distinctions

based on sexual orientation.....................

Despite the improved treatment of many

gay men and lesbians in society, and

within the legal profession in particular,

the retention of criminal laws that single

out same-sex conduct continues to en-

courage irrational discrimination............

Petitioners’ Criminal Convictions Under The

Texas Homosexual Conduct Law Violate Lib-

erty and Privacy Interests Protected By The

Due Process Clause And Bowers v. Hardwick

Therefore Should Be Overruled .....................

TABLE OF CONTENTS - Continued

Page

1. Bowers should be overruled because the

weight of this Court’s modern precedents

supports the conclusion that the right of

consenting adults to engage in intimate

human conduct implicates a fundamen-

tal liberty interest protected by the Due

Process Clause and a more complete ac-

count of the history of sodomy laws sup-

ports that View ...........:cccceeeereenseeeeeeeeenennes 16

2. Bowers should be overruled because it

relied upon an improper narrowing of

the Constitution’s special protections for

family and the home................ccccecseeeeeeees 19

3. Bowers should be overruled because it is

inconsistent with Romer v. Evans............ 22

C. Petitioners’ Criminal Convictions Under The

Texas Homosexual Conduct Law Violate The

Equal Protection Clause ..............cccccccseeeeeeeees 25

1. The Texas Homosexual Conduct Law dis-

criminates against gay men and lesbians

by criminalizing conduct by same-sex

couples that is not criminal when en-

gaged in by different-sex couples............. 25

2. Under the Equal Protection Clause, the

desire to harm and stigmatize members

of a group, such as gay men and lesbi-

ans, is not a legitimate governmental in-

iii

TABLE OF CONTENTS - Continued

Page

APPENDICES

Official Policies and Constitutional Amendments of

the American Bar Association...............00000000000000..00....... la

American Bar Association Report No. 2 (Aug. 1973)......10a

A Sampling of Major Law Firms That Have Policies

Specifically Prohibiting Discrimination Based On

Sexual Orientation ............0..cccccccccecsscesseeseseeeeeeeceeece.n, 17a

TABLE OF AUTHORITIES

Page

CASES

Agostini v. Felton, 521 U.S. 203 (1997)..........0ceeeeeeee 15, 22

Aguilar v. Fetins, 473 U.S. 402 (1985) ........ccccceecerreeeeeees 15

Booth v. Maryiand, 482 U.S. 496 (1987)..........::cccceeeeeeeees 15

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000)..............0++ 2

Bowers v. Hardwick, 478 U.S. 186 (1986) ...............+. passim

Boyd v. United States, 116 U.S. 616 (1886)..............--e0-+0 19

Burnet v. Coronado Oil Gas Co., 285 U.S. 393

—————————————— 22

Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct.

App.), appeal denied (Tenn. 1996) ...............csssseeeeeeeeees 23

C . Population Servs. Int'l, 431 U.S. 678

r- * “teeecrinratbewanndisnatecdear attri 16, 17, 19

Childers v. Dallas Police Dep't, 513 F.Supp. 134

(N.D. Tex. 1981), aff’d mem., 669 F.2d 732 (5th

0 13

City of Cleburne v. Cleburne Living Ctr., Inc., 473

et 28

Columbia Union Coll. v. Clark, 527 U.S. 1013

EEE 22

Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.

————————— 23

Cruzan v. Missouri Dep't of Health, 497 U.S. 261

_———————————— 16, 25

Department of Agric. v. Moreno, 413 U.S. 528 (1973)....... 28 -

Eisenstadt v. Baird, 405 U.S. 438 (1972) ..........cccccceeeeeeeeee 27

TABLE OF AUTHORITIES - Continued

Page

Florida Bd. of Bar Exam’rs re N.R.S., 403 So.2d

I diceveustssedenensennesess 1l

Florida ex rel. Florida Bar v. Kimball, 96 So.2d 825

Sua SIUTII antethecensesestenitcnaiasiehninrtniitnitediainsinaihireiesiartamainiaiteasaaes 11

Furman v. Georgia, 408 U.S. 238 (1972) ..........cccccecceccceoees 29

Grady v. Corbin, 495 U.S. 508 (1990)...........ccccccccceeeeeeeeees 15

Griswold v. Connecticut, 381 U.S. 479 (1965) ...9, 16, 17, 19

Gryczan v. State, 942 P-2d 112 (Mont. 1997) ..............0.00... 23

Honselman v. People, 48 N.E. 304 (Ill. 1897) .............c00000- 18

Hunter v. Underwood, 471 U.S. 222 (1985)........ccccccccccceceee i)

In re Boyd, 307 P.2d 625 (Cal. 1957)..........cccccccccccceeeceeeeeeee 11

James v. Douglas, 941 F.2d 1539 (11th Cir. 1991)............ 23

Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002).......0.00...cc00000- 23

The King v. Wiseman, 92 Eng. Rep. 774 (K.B. 1716)......... 18

Kyllo v. United States, 533 U.S. 27 (2001)..............c0000-- 5, 19

Lochner v. New York, 198 U.S. 45 (1905)...........ccccccecocceeeee 15

Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32

Ne 28

Loving v. Virginia, 388 U.S. 1 (1967).........cccccccccceseeseeseeeees 28

Marcum v. McWhorter, 308 F.3d 635 (6th Cir. 2002)........ 23

Moore v. City of East Cleveland, 431 U.S. 494 (1977).......... 20

Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)............. 23

Nashville, Chattanooga & St. Louis Ry. v. Browning,

aac ee thetic etna 29

TABLE OF AUTHORITIES - Continued

Page

Payne v. Tennessee, 501 U.S. 808 (1991)...........00eeeeeee: 15, 24

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ........... 15

Planned Parenthood of Southeastern Pa. v. Casey,

I EE passim

Plessy v. Ferguson, 163 U.S. 537 (1896) ...........-::cseeeeeeeees 15

Poe v. Ullman, 367 U.S. 497 (1961) ........ccccccccesseeeeeeeeereeeees 17

Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986)........ 26

Powell v. State, 510 S.E.2d 18 (Ga. 1998)............cccceeeeeeeeee 23

Railway Express Agency, Inc. v. New York, 336 U.S.

BI CR ccccccecenccsseccecenrsnesnsssensssanscncnscsscesssemnensmsemensensees 25

Ring v. Arizona, 122 S. Ct. 2428 (2002)..........:..cceeeeeeeeees 15

Roe v. Wade, 410 U.S. 113 (1973).........:.:ccccccccseseeeeeeneeneeeees 23

Romer v. Evans, 517 U.S. 620 (1996) ............cccceeeeee passim

School Dist. of Grand Rapids v. Ball, 473 U.S. 373

( 15

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ....... 15

South Carolina v. Gathers, 490 U.S. 805 (1989)............... 15

Stanley v. Georgia, 394 U.S. 557 (1969) ...........ccceeeeeeeeeees 19

State v. Morales, 826 S.W.2d 201 (Tex. App. 1992),

rev'd, 869 S.W. 2d 941 (Tex. 1994) ..........cccccceceeeereeeeeesees 29

Stemler v. City of Florence, 126 F.3d 856 (6th Cir.

, a 23

Sterling v. Burough of Minersville, 232 F.3d 190 (3d

SS 23

}

Vii

TABLE OF AUTHORITIES - Continued

Page

Toonen v. Australia, U.N. GAOR, Hum. Rts.

Comm., 50th sess., 448th mtg., U.N. Doc.

CCPR/C/50/D/488/1992 (1994) ........ccccccccccccececeecseeeeeeseee. 24

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.

EES ane, oon eer te eae 29

Troxel v. Granville, 530 U.S. 57 (2000) ...ccccccccccccccooceoceeeee. 20

Union Pacific R. Co. v. Botsford, 141 U.S. 250

ae er ee Ne ee EE 16

United States v. Carolene Prods. Co., 304 U.S. 144

ea icteric tetracaine ieee ial 29

United States v. Dixon, 509 U.S. 688 (1993)..................... 15

Vacco v. Quill, 521 U.S. 793 (1997) ......cccccccceccecseececeeseeeeee. 22

Vasquez v. Hillery, 474 U.S. 254 (1986) .....cccccccccccccceceeoeeee 22

Village of Willowbrook v. Olech, 528 U.S. 562 (2000)........ 27

Walton v. Arizona, 497 U.S. 639 (1990) ..............cceeeecceeeeee 15

Washington v. Glucksberg, 521 U.S. 702 (1997) ...cccccccec.... 29

CONSTITUTION AND STATUTES

U.S. Const. amend. XIV

§ 1, Due Process Clause..............0.....c..cccsec..see-.-+. passim

§ 1, Equal Protection Clause ..0.0...........ccccccecceseeeeees passim

Tex. Pen. Code § 21.01(1) ................ccccccsccosescocscocceoecececeeess, 25

ELE a eee passim

CourRT RULES

Fla. C.J.C. Canon 3(5) (2002) .........ccccccccecccecececeeseecesseseeee. 12

TABLE OF AUTHORITIES — Continued

Page

Kan. Sup. Ct. R. 601A Canon 3(B)(5) (2002)... 12

XIV La. Sup. Ct. R. XVII, § 5(G)(1) (2002) .......eceeceereeeeeeees ll

Miss. C.J.C. Canon 3(B)(5) (2002) ...........cccseeeeeeeeenennnnennenen 12

Okla. Stat. tit. 5, app. 4, Canon 3(B)(4) (2003) .........--+++. 12

Tex. C.J.C. Canon 3(B)(6) (2002) .......ccccccceeeeeeeeeeneeeeeeeeenees 12

Utah C.J. Admin. Canon 3(B)(5) (2002) ...........:cccceeeeeeeeenes 12

MISCELLANEOUS

American Academy of Pediatrics, Technical Report:

Coparent or Second-Parent Adoption by Same-

Sex Parents, 109 Pediatrics 341 (Feb. 2002) ..............+-. 20

American Bar Ass'n, Model Code of Judicial oa

Condsct (1900) ...0..0csccccccccccccccccccesccesscsesescsccceseeeeesssessess

American Bar Ass'n, Policy & Procedures Handbook .

(BOOB) ..ccccoceccccccccccccocscsocsssescesocsssssssossosossosssoooonssossssososssoes

American Bar Ass'n, Standards for Approval of ,

Law Schools (2002) ..........-::-sssesssccceerseceseereeseneessseerenennees 1

American Law Institute, Principles of the Law of ‘a

Family Dissolution (2002)........ssscescesseseeseresnsenseneensners

American Law Institute, Model Penal Code and -

Commentaries (1980) .........:ssssesserssssesereeneenernsnnsnsnssnenes

American Law Institute, Model Penal Code at

(Tentative Draft No. 4, 1955)..........csssesssesesenenereesenenees '

American Law Institute, Transcript of Proceedings

(1955)............ccccccscsscssssssrosssssssssessessnsessssssonsnssessssssaseseoees 9

TABLE OF AUTHORITIES - Continued

Page

Dan Black et al., Demographics of the Gay and

Lesbian Population in the United States: Evi-

dence from Available Systematic Data Sources,

37 Demography 139 (May 2000) .0........cccccccccecceocecseeceeees 20

D’Vera Cohn, Count of Gay Couples Up 300%,

Wash. Post, Aug. 22, 2001, at AB o...cccccccccccccccocccocecoceeees. 19

William N. Eskridge, Jr., Hardwick and

Historiography, 1999 U. Ill. L. Rev. 631....... 8, 9, 10, 26, 27

Richard H. Fallon, Jr., “The Rule of Law” as a

Concept in .Constitutional Discourse, 97 Colum.

a ee Oe iin nieinliteertrciteeniatiietamertciiaeneteeiinateatntnas einen 7

Peter Finn & Taylor McNeil, The Response of the

Criminal Justice System to Bias Crime: An Ex-

Ploratory Review (1987) .......cccccccccccecesessssessessseeseseeeeseses 14

Anne B. Goldstein, History, Homosexuality, and

Political Values, 97 Yale L.J. 1073 (1998)...................... 18

E.J. Graff, Welcoming the Invisible Bar: Lesbian

and Gay Attorneys, Diversity & the Bar, June

Eas OUP Ealiiacsinisinssietiistcsintttiiniceetiscitiniiattansitaataatninstaetnnsepeence 10

Hillary Greene, Undead Laws: The Use of Histori-

cally Unenforced Criminal Statutes in Non-

Criminal Litigation, 16 Yale L. & Pol'y Rev. 169

ITA Perneatienieeieicelaeenaeteeeteite i 12

Mark Hansen, Bolstering Benefits, 84 A.B.AJ. 32

ee edn icnittteniariaitiaaeaetiiaseesaiattcaest tale tt tie 21

Human Rights Campaign Foundation, The State of

the Workplace for Lesbian, Gay, Bisexual and

Transgender Americans 2001 .......00.c0ceccsceessesessesesse. 10, 21

TABLE OF AUTHORITIES — Continued

International Covenant on Civil and Political

Rights, opened for signature Dec. 19, 1966, 999

CIES EE. FO sercscrsncecnssonsesesansedesewenecsemeienteenmemesnnanies 2, 24

Law School Admission Council, Out & In: Informa-

tion for Lesbian, Gay, Bisexual & Transgendered

Law School Applicants (2001) ...........c:ssceeseeeeeeeeseeees 11, 21

Christopher R. Leslie, Creating Criminals: The

Injuries Inflicted by “Unenforced” Sodomy Laws,

35 Harv. C.R.-C.L. L. Rev. 103 (2000).......... 12, 13, 14, 26

John May, The Law of Crimes (2d ed. 1893) ............::0e0000

Robert B. Mison, Comment, Homophobia in Man-

slaughter, 80 Cal. L. Rev. 133 (1992)...............ccceeees 13,

National Inst. of Mental Health Task Force on

Homosexuality, Final Report and Background

I Ce ertascncinnenbintatentintsdainciviiadiniatidnennetimenons

Report of the District of Columbia Bar Task Force

on Sexual Orientation and the Legal Workplace

(Bae. 1988) ..020.0ccccscceccsesceccsescovsessevsecvesvecsevsonsosessonsoosoeces

Deborah L. Rhode & David Luban, Legal Ethics (3d

a a ntidiintdeieniahithiaieineidirenbcanlasianaaienttastarieanciaaiamanaiaaiiniiciindiiiintie

Paul Tappan, The Habitual Sex Offender: Report

and Recommendations of the [New Jersey] Com-

mission on the Habitual Sex Offender (1950)................

Penny Weaver, Pro-Gay Danburg Ousted by Wong,

Houston Voice, Nov. 8, 2002, at 1..............ccceceeeeeeeeeeeeeees

Donald T. Weckstein, Recent Developments in the

Character and Fitness Qualifications for the

Practice of Law, 40 B. Examiner 17 (1971)...................

Sherri Williams, Judicial Reprimand Suggested,

Clarion-Ledger, Dec. 21, 2002, at 2B...................cccceeeees

ender.

Owe -m

TABLE OF AUTHORITIES - Continued

Page

Two Firms Rated Best for Working Moms, N.Y. Lawyer,

http//www.nylawyer.com/news/02/10/100102r.html,

5 __ HERE SERTR ESSE SENG Ucn naire Lone anol 21

138 Cong. Rec. 8070-8071 (1992).........ccccccscsecescecceesceeseeee, 24

INTEREST OF AMICUS CURIAE'

The American Bar Association (ABA) is the leading

national membership organization of the legal profession.

It has a membership of more than 400,000 attorneys

throughout the United States, including attorneys in

private law firms, corporations, nonprofit organizations,

government agencies, and prosecutorial and public de-

fender offices, as well as legislators, law professors, and

students.’ The ABA’s membership is composed of attor-

neys, including gay and lesbian attorneys, in all 50 States.

Over the past 30 years, the ABA has sought repeatedly

to further the rule of law by advocating the elimination of

laws that criminalize noncommercial, private sexual

conduct between consenting adults, as well as laws and

policies that discriminate against gay men and lesbians. In

1973, the ABA, through its House of Delegates,’ adopted

a policy urging States to repeal all laws criminalizing

noncommercial sexual contact between consenting adults

’ Letters from all parties consenting to the filing of this brief are

being filed with the Clerk of this Court along with this brief. No counsel

for a party authored this brief in whole or in part, and no person other

than amicus curiae, or its counsel, made a monetary contribution to the

preparation or submission of this brief.

* Neither this brief nor the decision to file it should be interpreted

to reflect the views of any judicial member of the ABA. No inference

should be drawn that any member of the Judicial Division Council has

participated in the adoption or endorsement of the positions in this

brief. This brief was not circulated to any member of the Judicial

Division Council prior to filing.

* The House of Delegates is the ABA’s policy-making body, compris-

ing over 500 delegates and representing various entities within the

ABA, as well as the legal profession as a whole. Reports that recom-

‘mend the adoption of specific policy positions are submitted by ABA

sections, committees, affiliated organizations, state and local bar

associations and individual ABA members. The full House votes on the

recommendations and those that are passed by the House become the

official policies of the ABA.

in private. See App., infra, 1a.‘ The ABA has since adopted

a series of other policies that make clear its support for the

equal treatment of all persons, regardless of sexual orien-

tation, in employment, housing, public accommodations,

education, and judicial proceedings. See App., infra, 3a

(policy adopted August 1987 regarding bias-motivated

crimes); App., infra, 3a-4a (policy adopted August 1989

regarding discrimination in employment, housing, and

public accommodations); App., infra, 4a (Model Code of

Judicial Conduct, Canon 3B(5), adopted August 1990);

App., infra, 4a (policy adopted August 1991 regarding bias

in federal judicial system); App., infra, 4a-5a (policy

adopted February 1992 regarding discrimination on

university campuses). Relying upon those policies, the

ABA filed briefs as amicus curiae in Romer v. Evans, 517

U.S. 620 (1996), and in Boy Scouts of America v. Dale, 530

U.S. 640 (2000).

The ABA also has adopted policies that support equal

treatment by the government of family relationships

involving gay men and lesbians, including those involving

adoption, child custody and visitation rights, and crime

victim compensation funds. See App., infra, 8a (policy

adopted August 1995 regarding child custody and visita-

tion); App., infra, 8a-9a (policy adopted February 1999

regarding adoption); App., infra, 9a (policy adopted August

2002 regarding same-sex domestic partners’ eligibility for

crime-victim compensation funds). In addition, in 1979,

the ABA adopted a policy urging the United States to

ratify the International Covenant on Civil and Political

Rights, opened for signature Dec. 19, 1966, 999 U.N.TS.

171, which commits State parties to respect the civil rights

of all persons within their jurisdiction. See App., infra, la-3a.

That treaty, ratified by the United States in 1992, includes

provisions that the United Nations Human Rights Commit-

tee has construed to prohibit the criminalization of

* The ABA policies cited in this brief are reprinted below in the

appendix. See App., infra, la-9a.

consensual adult sodomy and discrimination on the basis

of sexual orientation. See note 15 infra.

The ABA has made special efforts to eliminate dis-

crimination against gay men and lesbians who are, or wish

to become, attorneys. In 1992, the ABA amended its

constitution to make the National Lesbian and Gay Law

Association an affiliated organization with a vote in the

House of Delegates. See App., infra, 5a, codified at Consti-

tution of the ABA, § 6.8(a). In 1994, the ABA incorporated

into its Standards for Approval of Law Schools a require-

ment that accredited institutions not discriminate on the

basis of sexual orientation in admissions. See App., infra,

5a-8a. In 1996, the ABA adopted a policy urging state and

local bar associations to study bias against gay men and

lesbians within the legal profession and the criminal

justice system and to make recommendations to eliminate

such bias. See App., infra, 8a. Most recently, in 2002, the

ABA amended its constitution to specify that state or local

bar associations may not be represented in the House of

Delegates if they discriminate on the basis of sexual

orientation. App., infra, 9a, codified at Constitution of the

ABA, § 6.4(e).

Given the nature and extent of the concerns addressed

in the ABA policies described above, the ABA has a strong

interest in the proper resolution of the questions presented

in this case to ensure the protection of liberty and equal

justice under law.

SUMMARY OF ARGUMENT

The Texas Homosexual Conduct Law infringes indi-

vidual liberty by authorizing the State, through its crimi-

nal law, to intrude upon intimate associations, to

undermine bodily integrity, and to invade the privacy of

the home. It also irrationally singles out a discrete group

for second-class treatment. The statute thereby under-

mines the rule of law and should be declared unconstitu-

tional.

A. Thirty years ago, amicus curiae, the American

Bar Association (ABA), adopted a policy urging States to

repeal laws that criminalize private, noncommercial

sexual contact between consenting adults. That 1973 ABA

policy, like the similar recommendation of the American

Law Institute’s Model Penal Code, was rooted in concerns

that criminal sodomy statutes undermined the rule of law

because no legitimate government interest warranted

criminalizing the conduct; enforcement required intrusive

police investigations; many Americans engaged in the

conduct in disregard of the criminal prohibition, thereby

undermining the public’s respect for the law; the laws

were arbitrarily enforced and members of racial minorities

tended to be the persons prosecuted; there was a serious

question of the statutes’ constitutionality; and, although

the laws applied to both heterosexual and homosexual

conduct, they were most often enforced against, and used

to discriminate against, gay men and lesbians. Since 1973,

the ABA has adopted a series of other policies that make

clear its support for the equal treatment of all persons,

regardless of sexual orientation.

All but 13 States now have repealed or judicially

invalidated their criminal sodomy statutes. Contrary to

the practices of an earlier era, state bars across the nation

have determined that qualified gay men and lesbians

should not be denied admission to the legal profession

based on their sexual orientation. A majority of state

courts, as well as many national law firms and law

schools, have adopted policies prohibiting discrimination

based on sexual orientation. The success of those policies

demonstrates the irrationality of discrimination based on

sexual orientation.

The Texas Homosexual Conduct Law and similar

statutes, however, continue to stigmatize gay men and

lesbians. The laws are used to justify discrimination

against gay men and lesbians as second-class citizens not

entitled to the same government protections as other

members of society. Declaring Texas’s Homosexual Con-

duct Law unconstitutional will remove that untenable

justification for such conduct and will vindicate the rule of

law.

B. The criminal convictions of petitioners under the

Texas statute violate constitutionally protected liberty and

privacy interests. Although the Court held in Bowers v.

Hardwick, 478 U.S. 186, 191 (1986), that “homosexual

sodomy” was not protected by the Due Process Clause,

that holding is inconsistent with the weight of this Court’s

modern precedents regarding the Constitution’s special

protections for intimate association, bodily integrity, and

the privacy of the home. In Planned Parenthood of South-

eastern Pennsylvania v. Casey, 505 U.S. 833, 857 (1992),

the Court reaffirmed two lines of precedent that, over

more than a hundred years, have recognized that the

substantive component of the Due Process Clause protects

“liberty relating to intimate relationships” and “personal

autonomy and bodily integrity.” An adult’s right to engage

in private, noncommercial, consensual intimate conduct is

protected under the rationale of those lines of cases as

reiterated and refined in Casey. Bowers departed from

those cases by describing the historical right at issue as

“homosexual sodomy” and did not take into account the

fact that, at the time the Fourteenth Amendment was

ratified in 1868, nearly all of the States criminalized all

sodomy. States’ criminal statutes did not single out same-

sex conduct until the mid-20th Century.

To deny same-sex couples protection from criminal

prosecution for private noncommercial, consensual sexual

conduct is also inconsistent with the Court’s decisions that

recognize the heightened protection accorded by the

Constitution to conduct that takes place in the home. See

Kyllo v. United States, 533 U.S. 27, 37 (2001). Bowers

relied upon the conclusion that there had been no connec-

tion demonstrated between homosexual activity and the

family. That connection has since been well documented

through census figures that establish that more than one

million people in this country live with a same-sex partner,

and through studies that indicate, for example, that

approximately 22% of partnered lesbians and 5% of

partnered gay men are raising children in their homes —

forming families that are nontraditional, but entitled to

constitutional protection from state interference.

Finally, Bowers should be overruled because it is

inconsistent with Romer v. Evans, 517 U.S. 620 (1996).

Romer’s holding that the mere desire to make gay men and

lesbians “unequal to everyone else” was not a legitimate

government interest, id. at 635, is irreconcilable with

Bowers’ holding that the “belief of a majority of the elec-

torate in Georgia that homosexual sodomy is immoral and

unacceptable” is sufficient to justify a criminal sodomy

law, 478 U.S. at 196.

C. . The Texas Homosexual Conduct Law also rests on —

a classification that is not rationally related to any legiti-

mate government interest and thus violates the Equal

Protection Clause. The disparate treatment of homosexual

and heterosexual sodomy is a modern development that

reflects the unwillingness of the majority to be subject to

the same criminal strictures that are imposed on the

minority, contrary to a fundamental tenet of the rule of

law. There is no relationship between the State’s asserted

interest in encouraging marriage and biological reproduc-

tion, Br. in Opp. 18, and the classification at issue. The

State’s classification allows unmarried heterosexuals to

engage in nonprocreative sexual conduct, but prohibits

other unmarried persons (gay and lesbian couples) from

engaging in the very same conduct. Tradition and history

do not support the State’s unequal treatment because

sodomy laws singling out same-sex conduct are of only

recent vintage. Ultimately, the State’s only rationale for

the Texas Homosexual Conduct Law is the “communal

belief that the [homosexual] conduct is wrong and should

be discouraged.” Br. in Opp. 19. But that belief is not

sufficient to justify a criminal sanction in light of the

Court’s holding in Romer that mere disapproval of homo-

sexuality does not constitute a “legitimate government

purpose” for “singling out a certain class of citizens for

disfavored legal status or general hardships.” 517 U.S. at

634, 633. Indeed, Texas’s admitted practice of rarely

enforcing the criminal statute undermines any claim that

the statute actually furthers a legitimate state interest.

ARGUMENT

THE TEXAS HOMOSEXUAL CONDUCT LAW IS

UNCONSTITUTIONAL AND CONTRARY TO THE

RULE OF LAW BECAUSE IT INFRINGES INDI-

VIDUAL LIBERTY AND IRRATIONALLY SINGLES

OUT A DISCRETE GROUP FOR SECOND-CLASS

TREATMENT.

A. Laws That Criminalize Private, Noncommercial

Sexual Conduct Between Consenting Adults

Contravene The Rule Of Law.

The Texas Homosexual Conduct Law, Tex. Pen. Code

§ 21.06, and other statutes that criminalize private,

noncommercial sexual behavior between consenting adults

contravene the rule of law. Conceptually, the “rule of law”

is a broad term that encompasses both procedural and

substantive limitations on government power. At its core,

it requires evenhanded and neutral enforcement of rules

that respect the rights of individuals as autonomous

beings to live their lives free from arbitrary governmental

restraints. See generally Richard H. Fallon, Jr., “The Rule

of Law” as a Concept in Constitutional Discourse, 97

Colum. L. Rev. 1 (1997). The American Bar Association

(ABA) is committed to advancing the rule of law in the

United States and throughout the world. See American

4 _ Policy & Procedures Handbook 2, Goal VIII

1. The ABA’s policies urging the repeal of sod-

omy laws and prohibiting sexual orientation

discrimination reflect a growing consensus

that the rule of law does not tolerate intru-

sions into private, noncommercial sexual

conduct between consenting adults or in-

— distinctions based on sexual orienta-

on.

In 1973, the ABA adopted a policy urging States “to

repeal all laws which classify as criminal conduct any form

of noncommercial sexual contact between consenting

adults in private, saving only those portions which protect

minors or public decorum.” App., infra, la. That policy

represented the culmination of decades of study by States

and the legal profession regarding the tension between

protecting individual liberty and using the criminal law to

regulate noncommercial sexual behavior between consent-

ing adults in the privacy of their homes, particularly when

such laws often were enforced arbitrarily to target gay

men and lesbians.

Beginning after World War II, several state commis-

sions studying criminal sexual offenses, including those in

New Jersey, New York, Illinois, and California, published

influential reports arguing that private, noncommercial

consensual same-sex’ sexual conduct is not the proper

concern of the law. See William N. Eskridge, Jr., Hardwick

and Historiography, 1999 U. Ill. L. Rev. 631, 661-662. One

well-known report concluded that state laws should

distinguish between conduct that merely may offend

community morals (e.g., homosexual conduct), and dan-

gerous, aggressive conduct that is an actual threat to the

community. See Paul Tappan, The Habitual Sex Offender:

Report and Recommendations of the [New Jersey] Commis-

sion on the Habitual Sex Offender 17-18 (1950). Those

reports were relied and expanded upon by the American

Law Institute (ALI) in 1955 in the course of drafting its

Model Penal Code. See Model Penal Code § 207.5(1)

commentary at 277-278 (Tentative Draft No. 4, 1955).

The ALI, under the direction of Herbert Wechsler as

Chief Reporter, determined that statutes criminalizing

consensual adult sexual conduct undermine the rule of law

in at least three ways. First, the ALI concluded that no

legitimate government interest warrants criminalizing

private conduct between consenting adults that does not

harm other people, particularly in light of the intrusive

police investigations that would be necessary if the stat-

utes were to be enforced. Jd. § 207.5 commentary at 277,

278, 279. As Judge Learned Hand explained during the

debate on the question whether to recommend the de-

criminalization of consensual sodomy: “I think it is a

matter of morals, a matter very largely of taste, and it is

not a matter that people should be put in prison about.”

American Law Institute, Transcript of Proceedings 129

(May 19, 1955). Second, the ALI concluded that sodomy

laws criminalize conduct in which many Americans (both

heterosexual and homosexual) engage and that respect for

the law is undermined by such widespread disregard for a

criminal prohibition. See Model Penal Code §§ 207.1, 207.5

commentary at 206, 276 (Tentative Draft No. 4, 1955).

Third, it concluded that sodomy laws were being enforced

arbitrarily. The large majority of offenders escaped detec-

tion, and those who were criminally prosecuted and

imprisoned tended to be drawn from racial minority

groups. Id. at 205, 278.° Moreover, sodomy laws created a

significant risk of blackmail. Jd. at 278-279; see also

National Inst. of Mental Health Task Force on

ee Final Report and Background Papers 6 &

n. estimating more than ten

subjected to blackmail). a

The 1973 ABA policy stemmed from rule-of-law

concerns similar to those that motivated the ALI. The ABA

policy recommended the repeal of all laws that regulated

noncommercial sexual contact between consenting adults

in private. App., infra, la. The Report supporting adoption

of the policy specifically relied upon the ALI’s assessment

of the high cost that the laws imposed on personal autonomy

and the lack of any corresponding benefit to the State. See

App., infra, 12a, 14a. The Report also pointed to decisions of

this Court, including Griswold v. Connecticut, 381 U.S. 479

(1965), and stated that “there is a serious question of the

constitutionality of such statutory prohibitions against

* Historically, the enforcement of criminal sodom

ally, y laws often was

tainted by racial considerations. See Eskridge, supra, at 649 (in 1880

more than half the people imprisoned for sodomy were people of color in

the South); cf. Hunter v. Underwood, 471 U.S. 222, 226-227, 232 (1985)

(reliance o~ sodomy convictions was a mechanism for disenfranchising

black men).

consensual sodomy.” Jd. at 13a. The Report noted that

another reason for repealing the sodomy laws was that

they were “most often applied against homosexuals, both

in enforcement of the statutes themselves and as a basis

for discrimination against homosexuals on the ground that

they are most likely violating the law.” Jd. at 12a.

At the time the ABA adopted the 1973 policy, nine

States (Colorado, Connecticut, Delaware, Hawaii, Illinois,

New Hampshire, North Dakota, Ohio, and Oregon) al-

ready had repealed their criminal laws prohibiting con-

sensual adult sodomy; in another two States (Alaska and

Florida), state courts had partially invalidated their laws.

See Eskridge, supra, at 686 tbl. In the 30 years since then,

such laws have been legislatively repealed or judicially

invalidated in all but 13 States. Pet. 4, 24.

Since 1973, the ABA has also adopted many policies

urging the elimination of sexual orientation discrimina-

tion. See pages 2-3, supra. Many leading law firms have

implemented nondiscrimination policies that parallel the

recommendations of the ABA. Law schools likewise have

proscribed sexual orientation discrimination in compliance

with ABA policy.’ The success of nondiscrimination policies

* For example, a review of forms submitted by law firms to the

National Association for Law Placement (NALP) reveals that 81 of the

nation’s 100 top revenue-producing law firms indicated that they have

nondiscrimination polices that expressly apply to sexual orientation.

See, e.g., App., infra, 17a-19a. Moreover, several other major law

firms, whose responses on their NALP forms did not so indicate,

specify on their websites that they have such policies. Cf. Human

Rights Campaign Foundation, The State of the Workplace for Lesbian,

Gay, Bisexual and Transgender Americans 2001, at 5 (59% of Fortune

500 companies have adopted policies to prohibit sexual orientation

discrimination); E.J. Graff, Welcoming the Invisible Bar: Lesbian and

Gay Attorneys, Diversity & the Bar, June 2002, at 13 (collecting

examples, including Texas-based Gardere Wynne Sewell LLP, in

which openly gay and lesbian lawyers serve in key management

positions in law firms).

” See American Bar Ass’n, Standards for Approval of Law Schools,

Standard 210(a) (2002) (requiring ABA-accredited law schools to “foster

(Continued on following page)

adopted by legal employers and law schools demonstrates

irrationality of discrimination based on sexual orienta-

on.

Finally, state courts across the nation have deter-

mined that qualified gay men and lesbians should not be

denied admission to the legal profession because of their

sexual orientation. In the past, a number of States had

excluded known gay men and lesbians from the bar on the

rationale that their presumed violation of criminal sodomy

laws meant that they did not meet the “good moral charac-

ter” requirement. See, e.g., Florida v. Kimball, 96 So.2d

825 (Fla. 1957); In re Boyd, 307 P.2d 625 (Cal. 1957); ef.

Donald T. Weckstein, Recent Developments in the Charac-

ter and Fitness Qualifications for the Practice of Law, 40

B. Examiner 17, 20 (1971) (in anticipation of bar’s “moral

character” requirement, about one-third of law schools

would “take a hard look at .. . homosexual activity before

admitting an applicant”). But state bars all across the

nation, even in States that still criminalize sodomy, have

since rejected that rationale and revised their rules and

policies to permit gay and lesbian applicants to become

licensed attorneys based on the determination that

whether one engages in consensual same-sex sodomy does

not affect whether one is of “good moral character.” See,

e.g., Florida Bd. of Bar Exam’rs re N.R.S., 403 So.2d 1315

(Fla. 1981); XIV La. Sup. Ct. R. XVII, § 5(G)\(1) (2002).

Indeed, not only have all States ceased the practice of

excluding gay men and lesbians from the legal profession,

but a majority of state courts have adopted policies to

protect lesbian and gay lawyers, litigants, and court

and maintain equality of opportunity in legal education ... without

discrimination or segregation on ground of race, color, religion, national

origin, sex, or sexual orientation” in admissions and hiring); Law School

Admission Council, Out & In: Information for Lesbian, Gay, Bisexual &

Transgendered Law School Applicants 3, 6-11 (2001) (reporting that all

ance day nah vespended to survey had peliey poehibiting coma!

en ination and listing 118 law schools with openly

and lesbian faculty members). ra ward

ersonnel from manifestations of bias and prejudice, in

sewer with the ABA’s Model Code of Judicial Conduct."

2. Despite the improved treatment of many gay

oe and lesbians in society, and within the

legal profession in particular, the retention

of criminal laws that single out same-sex

conduct continues to encourage irrational

discrimination.

Laws that criminalize private same-sex intimate

conduct, even those not regularly enforced, serve to legiti-

mize discrimination, hatred, and even violence against gay

men and lesbians. By branding gay and lesbian citizens as

lawbreakers, such laws impose a government-sanctioned

stigma that impedes the efforts of gay men and lesbians to

obtain equal justice under law. See generally Christopher

R. Leslie, Creating Criminals: The Injuries Inflicted by

“Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103

(2000); Hillary Greene, Undead Laws: The Use of Histori-

cally Unenforced Criminal Statutes in Non-Criminal

Litigation, 16 Yale L. & Pol’y Rev. 169 (1997). a

Despite the progress that has been made in eliminat-

ing discrimination within the legal profession and society

as a whole, criminal sodomy laws are still cited as a

justification for discrimination against gay and lesbian

Americans. In a recent study, one law firm in Virginia

explained that it does “not employ and would not knowingly

employ a homosexual attorney” because sodomy “is a

* More than 30 States, including seven of the States that make

sodomy a criminal offense, expressly prohibit judges from a

bias or prejudice based on sexual orientation in the performance o

their judicial duties. See, eg., Fla. C.J.C. Canon 3(5) (2002); Idaho

C.J.C. Canon 2(C) (2002); Kan. Sup. Ct. R. 601A Canon 3(B)5) (2002);

Miss. C.J.C. Canon 3(B)(5) (2002); Okla. Stat. tit. 5, app. 4, Canon

3(B\(4) (2003); Tex. C.J.C. Canon 3(B\6) (2002); Utah C.J. Admin.

Canon 3(B)(5) (2002); see also Deborah L. Rhode & David Luban, Legal

Ethics 53 (3d ed. 2001).

iat Fata

—

crime in Virginia” and “[i]t therefore would be wrong...

for a law firm to employ homosexuals or condone homo-

sexual conduct.” Report of the District of Columbia Bar

Task Force on Sexual Orientation and the Legal Workplace

App. C, at 39 cmt. 166 (Mar. 1999), Similarly, the Texas

Homosexual Conduct Law has been used to justify opposi-

tion to the candidacy of an openly gay justice of the peace.

As one member of the candidate’s own party argued,

“whether you like it or not, there is a state law that

prohibits sodomy in the state of Texas, and having a judge

who professes to have a lifestyle that violates state law...

is wrong.” Penny Weaver, Pro-Gay Danburg Ousted by

Wong, Houston Voice, Nov. 8, 2002, at 1; cf Childers v.

Dallas Police Dep’t, 513 F. Supp. 134, 138 (N.D. Tex. 1981)

(in suit for employment discrimination, supervisor in

Dallas Police Department testified that he told a gay

applicant that he would not be hired in part “because his

sexual practices violated state law”), aff’d mem., 669 F.2d

732 (5th Cir. 1982).

Criminal sodomy laws are also viewed by some mem-

bers of society, including some participants in the legal

system, as a justification for setting gay men and lesbians

apart as second-class citizens not entitled to the same

government protections as other members of society. See

Leslie, supra, at 123-124. Such attitudes have been exhib-

ited by some members of the judiciary in States that have

such laws. For example, in 1988, a Texas judge explained

his refusal to impose a life sentence on a defendant con-

victed of killing two gay men on the ground that “I don’t

much care for queers cruising the streets {and] ... [I] put

prostitutes and gays at about the same level... and I'd be

hard put to give somebody life for killing a prostitute.”

Robert B. Mison, Comment, Homophobia in Manslaughter,

80 Cal. L. Rev. 133, 163 (1992). Similarly, a Florida judge

presiding over a pre-trial hearing of defendants charged

with beating a gay man to death in 1987 asked the prose-

cutor “That’s a crime now, to beat up a homosexual?” and

when told that it was, responded, “Times really have

changed.” Jbid.* Because the existence of sodomy laws re-

inforces those attitudes, many gay men and lesbians who

are crime victims are reluctant to come forward for fer:

that the focus will be on their status as putative law-

breakers rather than as victims. See Leslie, supra, at 125.

That reluctance, in turn, contributes to the fact that gay

men and lesbians are frequent victims of hate crimes. See

id. at 122; Peter Finn & Taylor McNeil, The Response of

the Criminal Justice System to Bias Crime: An Exploratory

Review 2, 17 (1987).

Thus, even when not enforced, sodomy laws encourage

irrational and arbitrary treatment of gay men and lesbi-

ans. Declaring Texas’s Homosexual Conduct Law unconsti-

tutional will remove that untenable justification for such

conduct and will vindicate the rule of law.

B. Petitioners’ Criminal Convictions Under The

Texas Homosexual Conduct Law Violate Liberty

and Privacy Interests Protected By The Due

Process Clause And Bowers v. Hardwick There-

fore Should Be Overruled.

The ABA’s policy urging repeal of criminal sodomy

statutes applies to all such statutes, whether they are

facially neutral or targeted at homosexual conduct alone.

That 30-year-old policy reflects the principle that intimate,

* See also Sherri Williams, Judicial Reprimand Suggested, Clarion-

Ledger, Dec. 21, 2002, at 2B (reprimand recommended for Mississippi

judge who wrote a letter to a newspaper stating “[iJn my opinion, gays

and lesbians should be put in some type of mental institute”); State Bar

of Arizona Web site, http//www.azbar.org/Sections/Committees/SOG)/

summary.asp (state bar study found that 13% of judges and attorneys have

observed negative treatment by judges in open court toward those per-

ceived to be gay or lesbian, 45% have heard negative remarks about a

lesbian or gay person in the context of a particular case, and 8% have heard

court personnel indicate a preference not to work with a lawyer because he

or she is perceived to be gay or lesbian).

sexual conduct between two consenting adults that occurs

in the privacy of the home should not be the basis of a

criminal conviction absent some truly compelling govern-

ment interest.” In Bowers v. Hardwick, 478 U.S. 186

(1986), however, a sharply divided Court held that “homo-

sexual sodomy” was not protected by the substantive

maa of the Fourteenth Amendment’s Due Process

ause.

Although the doctrine of stare decisis should generally

be followed, it “is not an inexorable command,” Payne v.

Tennessee, 501 U.S. 808, 828 (1991) (overruling Booth v.

Maryland (1987), and South Carolina v. Gathers (1989)),

particularly in constitutional cases, see Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 63 (1996) (overruling Pennsyl-

vania v. Union Gas Co. (1989))." Overruling a prior

decision is particularly warranted when “facts, or an

understanding of facts, [have] changed from those which

furnished the claimed justifications for the earlier consti-

tutional resolution[ ].” Planned Parenthood of Southeast-

ern Pa. v. Casey, 505 U.S. 833, 863 (1992) (discussing

rationale for overruling Lochner v. New York and Plessy v.

Ferguson). Viewed in the proper factual context, Bowers’

holding is inconsistent with more recent precedents that

reaffirm the Constitution’s special protections for intimate

association, bodily integrity, and activities that occur in

the home. Moreover, Bowers rested on an incomplete

_ account of the history surrounding the right at issue and

In the present case, Texas conceded that it could establish no

interest that would meet that requirement. Pet. App. 76a (at oral

argument in the state appellate court, respondent’s counsel could not

“even see how he could begin to frame an argument that there was a

compelling State interest”).

" See also Ring v. Arizona, 122 S. Ct. 2428 (2002) (overruling

Walton v. Arizona (1990)); Agostini v. Felton, 521 U.S. 203 (1997)

(overruling Aguilar v. Felton (1985), and School Dist. of Grand Rapids

v. Ball (1985)); United States v. Dixon, 509 U.S. 688 (1993) (overruling

Grady v. Corbin (1990)); Payne, 501 U.S. at 828 n.1 (collecting cases

from prior 20 Terms overruling 33 constitutional decisions).

inaccurate factual assumptions about the lives and family

relationships of gay men and lesbians. Finally, Bowers

cannot be reconciled with the Court’s more recent decision

in Romer v. Evans, 517 U.S. 620 (1996). For all these

reasons, Bowers should be overruled.

1. Bowers should be overruled because the

weight of this Court’s modern precedents sup-

ports the conclusion that the right of consent-

ing adults to engage in intimate human

conduct implicates a fundamental liberty in-

terest protected by the Due Process Clause

and a more complete account of the history of

sodomy laws supports that view.

In Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992), this Court identified two

“lines of decisions” in which the Court, for more than a

hundred years, has recognized that the substantive

component of the Due Process Clause protects “liberty

relating to intimate relationships” and “personal auton-

omy and bodily integrity.” Id. at 857; see also Cruzan v.

Missouri Dep’t of Health, 497 U.S. 261, 287-288 (1990)

(O’Connor, J., concurring) (citing, inter alia, Union Pacific

R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). In determin-

ing whether an adult’s right to engage in private consen-

sual, intimate conduct is a component of liberty protected

as a substantive matter by the Due Process Clause, the

Court need only look to those lines of decisions, particu-

larly to Griswold v. Connecticut, 381 U.S. 479 (1965), and

Carey v. Population Services International, 431 U.S. 678

(1977).

In Griswold, the Court held that the State could not

prohibit married couples from using contraception and

thus concluded that the State could not require married

couples to refrain from non-procreative sexual activity.

Carey extended that holding to unmarried persons. While

the majority in Carey framed that right in terms of the

“right to decide to prevent conception” and disclaimed any

on ene ee

broader holding, 431 U.S. at 688 n.5, the Court’s ruling did

not protect merely a right to abstain from sexual relations.

Rather, that decision and Griswold mean that adults have

a right to be free of state interference in deciding whether

and how to conduct their intimate sexual relationships.

Justice Powell acknowledged as much in describing the

right at issue as “the constitutionally protected privacy in

decisions concerning sexual relations.” Jd. at 711 (Powell,

J., concurring in part and concurring in judgment).

By characterizing Griswold and Carey as involving

only the right not to procreate, Bowers failed to capture

the full scope of the right at issue in those cases. As the

Court has since explained in Casey, those opinions and

their predecessors were rooted in the second Justice

Harlan’s conclusion that the Due Process Clause includes

“a freedom from all substantial arbitrary impositions and

purposeless restraints.” 505 U.S. at 848 (quoting Poe v.

Uliman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting

from dismissal on jurisdictional grounds)). The same rule-

of-law principles of individual autonomy and privacy that

informed the recommendations of the ALI and ABA to

repeal criminal sodomy laws are reflected in the Casey

Court’s conclusion that matters “involving the most

intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy,

are central to the liberty protected by the Fourteenth

Amendment.” Id. at 851. Because Griswold and Carey

establish that substantive due process protects the right of

consenting adults to engage in intimate sexual conduct in

the privacy of their homes, this Court should overrule

Bowers and hold that the Texas Homosexual Conduct Law

violates the Constitution.

Bowers sought to distinguish those lines of cases by

describing the interest at stake as the right to engage in

“homosexual sodomy” and by suggesting that the long

history of sodomy laws militates against constitutional

protection of that right. But Bowers did not address the

significance of the fact that it was not until the mid-20th

Century that sodomy laws singled out same-sex intimate

conduct. Historically, States prohibited certain forms of

sexual conduct among all adults, includimg both homosex-

ual and heterosexual, both married andi single. In 1868,

the year of the Fourteenth Amendment's ratification, 32 of

the then-37 States criminalized sodomy. See Bowers, 478

U.S. at 193. In all but one of those States, the criminal

prohibition of sodomy included conductt engaged in by

different-sex couples.” The laws were focused on particu-

lar conduct, rather than the identity of the participants.

Indeed, under those laws, even the comduct of married

couples could be punished. See John May, The Law of

Crimes § 203 (2d ed. 1893) (“Sodomy . . . may be committed

... by aman with a woman - his wife, in which case, if she

consent, she is an accomplice.”); Honselrman v. People, 48

N.E. 304, 305 (Ill. 1897) (“this is a crime committed

between two persons both of whom conisent, and it may

even be committed by husband and wife”).

Bowers provided no reasoned basis: for disregarding

that history of equivalent treatment of same-sex and

different-sex sodomy and redefining the lliberty interest at

issue in a way that excludes intimate sexual conduct

engaged in by persons of the same sex. Mlore fairly viewed,

the historical practice of criminalizing sodomy between

consenting adults in private is essentiially incompatible

" Between 1791 and 1868, no State enacted = law that “singled out

sexual acts between men for special prohibition..” Anne B. Goldstein,

History, Homosexuality, and Political Values, 97 Yale LJ. 1073, 1084

(1998). Sodomy laws enacted prior to 1791 iin Connecticut, New

Hampshire, and Massachusetts, arguably prohilbited only male-male

conduct. See id. at 1082 n.60. By the time the Fourteenth Amendment

was ratified, however, two of those three States had amended their

criminal sodomy laws so that they applied to male-female couples as

well. See id. at 1084 nn.66 & 68 (laws of Connescticut and Massachu-

setts were amended in 1821 and 1805, respectivesly, in ways that made

clear that sodomous conduct was proscribed for all couples). Indeed,

there is some indication that the laws in those States had always

prohibited male-female sodomy, as similar pirohibitions had been

interpreted to include sodomous conduct betweem a man and a woman.

See The King v. Wiseman, 92 Eng. Rep. 774, 775 (IK.B. 1716).

Bt ae

with the two “lines of decisions” identified in Casey, 505

U.S. at 857, and exemplified by Griswold and Carey. The

holdings of those cases should control here.

2. Bowers should be overruled because it relied

upon an improper narrowing of the Consti-

tution’s special protections for family and

the home.

To deny same-sex couples constitutional protection

from criminal prosecution for their private sexual conduct

is also inconsistent with the decisions of the Court that

recognize the heightened protection that the Constitution

provides for conduct that takes place in the home. See

Kyllo v. United States, 533 U.S. 27, 37 (2001) (“In the

home, our cases show, all details are intimate details,

because the entire area is held safe from prying govern-

ment eyes.”); Boyd v. United States, 116 U.S. 616, 630

(1886) (“[i]t is not the breaking of his doors and the rum-

maging of his drawers that constitutes the essence of the

[constitutional] offence, but it is the invasion of his inde-

feasible right of personal security, personal liberty, and

private property”); see also Griswold, 381 U.S. at 485-486;

Stanley v. Georgia, 394 U.S. 557, 565 (1969). The precincts

of the home are no less inviolate when those residing

within are gay or lesbian.

. Bowers also relied upon inaccurate factual assump-

tions about the family relationships of gay men and

lesbians. In so doing, Bowers discounted the effect on

families of laws criminalizing private, consensual sexual

conduct between adults of the same sex. In Bowers, the

Court said that “[nJo connection between family, marriage,

or procreation, on the one hand, and homosexual activity,

on the other, has been demonstrated.” 478 U.S. at 191. But

since Bowers was decided, that connection has been well

documented.

It is now known that hundreds of thousands of gay

men and lesbians have stable relationships, are parents,

and raise their children in a family setting. See D’Vera

Cohn, Count of Gay Couples Up 300%, Wash. Post, Aug.

22, 2001, at A3 (Census Bureau reports 1.2 million people

indicated in 2000 census that they live with a same-sex

“unmarried partner”); Dan Black et al., Demographics of

the Gay and Lesbian Population in the United States:

Evidence from Available Systematic Data Sources, 37

Demography 139, 150 (May 2000) (estimating, based on

1990 census data, that about 22% of partnered lesbians

and 5% of partnered gay men are raising children in their

home); cf. American Academy of Pediatrics, Technical

Report: Coparent or Second-Parent Adoption by Same-Sex

Parents, 109 Pediatrics 341 (Feb. 2002) (at least one

million children in the United States, and likely many

more, have at least one gay or lesbian parent). The Consti-

tution protects families from state interference, see Troxel

v. Granville, 530 U.S. 57 (2000), even when the family in

question is not a “traditional” one. See id. at 98 (Kennedy,

J., dissenting); Moore v. City of East Cleveland, 431 US.

494, 506 (1977) (plurality) (overturning criminal convic-

tion on substantive due process grounds because “the

Constitution prevents East Cleveland from standardizing

its children — and its adults — by forcing all to live in

certain narrowly defined family patterns”).

Through its policies urging nondiscrimination on the

basis of sexual orientation in addption, child custody, and

visitation, the ABA has repeatedly acknowledged the

importance of ensuring that the laws do not undermine the

stability of families formed by gay and lesbian couples. See

page 2, supra; see also American Law Institute, Principles

of the Law of Family Dissolution § 2.12(d) & (e) (2002)

(recommending that States prohibit judges from consider-

ing sexual orientation or extramarital sexual conduct in

determining legal custody of children); id. § 2.12 cmt. f

reporter’s notes (collecting studies showing that “there is no

correlation between a parent’s sexual identity and that of

the child, and no diminution in measures of self-esteem or

social adjustment” based on the sexual orientation of the

parents; that “being raised by a homosexual parent is no

worse for a child than being raised by a heterosexual

parent”; and that “gay men and lesbians are no more likely

to molest children than heterosexual adults”). Similarly, the

legal profession and corporate America now provide health

and other benefits (including adoption leave) to gay men

and lesbians for their domestic partners and their chil-

dren. Local governments have established domestic

partnership registries and offer a range of benefits to gay

and lesbian families, even in States with sodomy laws.”

As noted above, when the facts upon which a decision

is premised have changed, or new information is brought to

light, it is appropriate for the Court to revisit that decision.

See P. 15, supra. Thus, as Justice Brandeis explained, “in

cases involving [the application of the substantive compo-

nent of the Due Process Clause], this court must, in order

to reach sound conclusions, feel free to bring its opinions

into agreement with experience and with facts newly

” For example, 57 of the nation’s top revenue-producing law

that reported to NALP that they prohibit discrimination on the basis of

sexual orientation, see note 6, supra, and App., infra, 17a-19a, also

indicated that they provide benefits to the same-sex partners of their

employees. Moreover, as is the case with policies of nondiscrimination

based on sexual orientation, see note 6, supra, a number of other major

law firms provide more detailed information on their websites specify-

ing that they offer such benefits. See also Two Firms Rated Best for

Working Moms, N.Y. Lawyer, http://www.nylawyer.com/news/02/10/

100102r.html, Oct. 1, 2002 (discussing firms offering adoption leave

that affirmatively includes gay and lesbian attorneys); Mark Hansen,

Bolstering Benefits, 84 A.B.A.J. 32 (1998) (before offering health and

other benefits to partners of gay and lesbian employees, the Houston

firm of Vinson & Elkins “surveyed other firms it regards as its peers

only to learn that many already offer such coverage”). Law schools

likewise are providing such benefits to their employees and students.

See Law School Admission Council, supra, at 6-11. Those actions reflect

a more general trend in corporate policies. See Human Rights Cam-

paign Foundation, supra, at 18 (reporting that 4,285 employers in all 50

States provide domestic partner health insurance benefits to same-sex

partners).

* See, e.g., Human Rights Campaign Foundati supra

56 Gating dies and coumtion Gad cir demactie mutts be

benefits and/or have domestic partner registries in Florida, Louisiana,

Missouri, North Carolina, and Texas, all of which have sodomy laws).

ascertained.” Burnet v. Coronado Oil Gas Co., 285 US.

393, 412 (1932) (Brandeis, J., dissenting), quoted with

approval in Vasquez v. Hillery, 474 U.S. 254, 266 (1986).

3. Bowers should be overruled because it is

inconsistent with Romer v. Evans.

In Romer v. Evans, 517 U.S. 620 (1996), the Court

held that a State violated the Equal Protection Clause by

enacting a provision that was justified solely by a desire to

deny gay men and lesbians the rights enjoyed by other

citizens. Romer’s holding that the mere desire “to make

[gay men and lesbians] unequal to everyone else” was not

a legitimate governmental interest, id. at 635, is inconsis-

tent with Bowers’ holding that the “belief of a majority of

the electorate in Georgia that homosexual sodomy is

immoral and unacceptable” was sufficient to justify 4

criminal sodomy law, 478 U.S. at 196. As the dissenting

Justices in Romer observed, the majority’ decision in

Romer cannot be reconciled with the decision in Bowers.

See 517 U.S. at 640-642 (Scalia, J., dissenting, joined by

Rehnquist, C.J., and Thomas, J.). Respondent admits as

much when it asserts that Bowers permits a State to fine

or imprison a homosexual for engaging in sodomy, but

concedes (Br. in Opp. 19) that Romer would not permit a

State to discourage an individual from engaging in sodomy

by denying a “practicing homosexual }” the opportunity to_

attend a public university. Given the inconsistency be-

tween Bowers and the subsequent decision in Romer,

Bowers should be overruled. See Agostini v. Felton, 521

U.S. 203, 235-236 (1997) (“[S]tare decisis does not prevent

us from overruling a previous decision where there has

been a significant change in or subsequent development of

our constitutional law.”). pa

Romer applied long-settled Equal Protection use

principles i oe been cited with approval by the Court

in a variety of settings. See, e.g., Vacco v. Quill, 521 U.S.

793, 799 (1997); Columbia Union Coll. v. Clark, 527 US.

1013, 1015 (1999) (Thomas, J., dissenting from the denial

of certiorari).

Bowers has not fared as well. Lower courts have

struggled with the scope of Bowers’ holding, particularly

after Romer. See, e.g., Marcum v. McWhorter, 308 F.3d

635, 645 (6th Cir. 2002) (Clay, J., concurring in judgment);

Sterling v. Burough of Minersville, 232 F.3d 190, 194-195

(3d Cir. 2000); Stemler v. City of Florence, 126 F.3d 856,

873-874 (6th Cir. 1997); Nabozny v. Podlesny, 92 F.3d 446,

458 & n.12 (7th Cir. 1996); James v. Douglas, 941 F.2d

1539, 1543 (11th Cir. 1991). A number of state courts have

rejected the reasoning of Bowers as inconsistent with rule-

of-law norms. See Jegley v. Picado, 80 S.W.3d 332 (Ark.

2002); Powell v. State, 510 S.E.2d 18 (Ga. 1998); Gryczan v.

State, 942 P.2d 112 (Mont. 1997); Campbell v. Sundquist,

926 S.W.2d 250 (Tenn. Ct. App.), appeal denied (Tenn.

1996); Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.

1992).

Indeed, the majority opinions of this Court have not

embraced Bowers. In addition to the notable absence of

any reference to Bowers in the Court’s opinion in Romer,

Bowers’ analysis has not been relied upon in any majority

opinion in a case involving the definition of “liberty” for

purposes of substantive due process. Cf. Casey, 505 U.S. at

855 (discussing constitutional decisions that were over-

ruled by the Court because related principles of law had

developed that “left the old rule no more than a remnant of

abandoned doctrine”). Nor has the holding of Bowers given

rise to any individual or societal reliance that would

warrant its retention despite its flaws. Cf. id. at 856, 858

(declining to overrule Roe v. Wade, “[e]ven on the assump-

tion that the central holding of Roe was in error,” because,

in part, “people have organized intimate relationships and

made choices that define their views of themselves and

their places in society, in reliance on the availability of

abortion in the event that contraception should fail”). In the

years since Bowers was handed down, its reasoning has been

steadily undermined by subsequent legal developments in

the States. Numerous States have repealed or invalidated

their criminal sodomy laws. See Pet. 24." Thirteen States

and hundreds of localities have enacted civil rights protec-

tions for gay men and lesbians in their stead.

In light of the Court’s more recent decision in Romer

holding that a desire to deny gay men and lesbians the

rights enjoyed by other citizens is not a legitimate gov-

ernment interest, as well as the actions by States verifying

the conclusion of Romer — decriminalizing sodomy, protect-

ing gay men and lesbians from discrimination, and provid-

ing health and other benefits for the families of gay men

and lesbians — Bowers should be overruled. That is par-

ticularly so because Bowers was “decided by the narrowest

of margins, over spirited dissents challenging the basic

underpinnings” of that decision, has “been questioned by

Members of the Court in later decisions and [has] defied

consistent application by the lower courts.” Payne, 501

U.S. at 828-830.

“ Similar developments have taken place at the international

level. Article 17(1) of the International Covenant on Civil and Political

Rights prohibits signatories from engaging in “arbitrary or unlawful

interference with [a person’s) privacy, family, home or correspondence.

999 U.N.TS. at 177. That provision is construed by the United Nations

Human Rights Committee to prohibit a signatory from criminalizing

consensual sodomy. See Toonen v. Australia, U.N, GAOR, Hum. Rts.

Comm., 50th sess., 448th mtg. 74 8.2-8.6, U.N. Doc. CCPR/C/50/D/

488/1992 (1994). Moreover, Article 26 of the Covenant, which requires

that each country’s law “guarantee to all persons equal and effective

protection against discrimination on any ground such as race, colour,

sex, language, religion, political or other opinion, national or social

origin, property, birth or other status,” 999 U.N.T.S. at 179, is construed

to proscribe discrimination on the basis of sexual orientation. See

Toonen ¥ 8.7. The Covenant was ratified by the United States in 1992.

See 138 Cong. Rec. 8070-8071 (1992). A determination that the Texas

Homosexual Conduct Law violates the Constitution would, in addition

to comporting with rule-of-law principles underlying American juris-

prudence, also bring the United States into compliance with its

international commitments.

C. Petitioners’ Criminal Convictions Under The

Texas Homosexual Conduct Law Violate The

Equal Protection Clause.

Even if the Court determines that Bowers should not

be overruled, the judgment of the Texas Court of Appeals

should be reversed because the Texas Homosexual Con-

duct Law is based on a classification that is not rationally

related to a legitimate governmental interest and thus

violates the Equal Protection Clause. This issue was not

addressed in Bowers, see 478 U.S. at 196 n.8, but is par-

ticularly pertinent in this case because, unlike the facially

neutral law in Bowers, the Texas Homosexual Conduct

Law expressly applies only to homosexual conduct.

1. The Texas Homosexual Conduct Law dis-

criminates against gay men and lesbians by

criminalizing conduct by same-sex couples

that is not criminal when engaged in by dif-

ferent-sex couples.

The Equal Protection Clause is designed to prevent

legislative excesses by requiring “the democratic majority

to accept for themselves and their loved ones what they

impose on you and me.” Cruzan v. Missouri Dep't of

Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring);

see also Railway Express Agency, Inc. v. New York, 336

U.S. 106, 112 (1949) (Jackson, J., concurring) (“[TJhere is

no more effective practical guaranty against arbitrary and

unreasonable government than to require that the princi-

ples of law which officials would impose upon a minority

must be imposed generally.”). The Texas Homosexual

Conduct Law violates that fundamental tenet of the rule of

law by substantially limiting gay and lesbian couples from

engaging in sexual intimacy but permitting heterosexuals

(married or single) to engage in intimate acts that Texas

concedes are the “same act[s]” that are prohibited for

homosexuals. Br. in Opp. 18. Those acts are defined by

Texas law as “deviate sexual intercourse” regardless of

who engages in them, see Tex. Pen. Code § 21.01(1), but

Texas criminalizes the conduct only when it is engaged in

by same-sex couples.

That disparate treatment of homosexual and hetero-

sexual sodomy is a modern development that reflects the

unwillingness of the majority to be subject to the same

strictures imposed upon the minority. See p. 18, supra. In

1962, when the ALI recommended the repeal of all crimi-

nal sodomy laws involving consenting adults, every State

had a criminal law that prohibited all sodomy, regardless

_ of the sex or sexual orientation of the couples involved. See

Christopher R. Leslie, Creating Criminals: The Injuries

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

L. Rev. 103, 111 (2000). It was only in 1969, in response to

that recommendation, that a State (Kansas) decriminal-

ized sodomy for heterosexuals but not for same-sex cou-

ples. Seven other States (Arkansas, Kentucky, Missouri,

Montana, Nevada, Tennessee, Texas) then followed suit

and redefined their sodomy laws to single out same-sex

conduct. See William N. Eskridge, Jr., Hardwick and

Historiography, 1999 U. Ill. L. Rev. 631, 664, 691.”

The partial repeals in those eight States thus at-

tempted to cure the ALI’s rule-of-law objection that the

State was regulating private intimate conduct — conduct

that was “anything but uncommon” among the heterosex-

ual majority. American Law Institute, Model Penal Code

and Commentaries § 213.2 cmt. at 363 (1980). In singling

out gay men and lesbians, however, those States violated

another rule-of-law requirement articulated by the ALI,

“ Besides the Texas statute, only two States (Kansas and Missouri)

still have in effect sodomy statutes that, on their face, criminalize only

same-sex sodomy. Nevada repealed its same-sex sodomy statute in

1993; courts in Arkansas, Kentucky, Montana, and Tennessee invali-

dated their same-sex sodomy laws on state constitutional grounds after

Bowers. See Eskridge, supra, at 633 n.il, 686 tbl. The sodomy law in

Oklahoma, although written to encompass both heterosexual and

homosexual sodomy, currently applies only to homosexual sodomy due

to the judicial invalidation of the statute as it applied to heterosexual

couples. See Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986).

namely the evenhanded application of the criminal law.

The discriminatory intent behind those changes was clear.

For example, Arkansas repealed its general sodomy law in

1975 as part of a comprehensive criminal code revision (as

recommended by the ALI’s Model Penal Code and the

ABA), but in 1977 enacted a new law prohibiting only

same-sex sodomy. See Eskridge, supra, at 664, 687 tbl. The

chief sponsor of the law claimed at the time that the new

law was “aimed at weirdos and queers.” Petition for

Certiorari in Limon v. Kansas, No. 02-583, at 5 (Oct.

2002).

2. Under the Equal Protection Clause, the de-

sire to harm and stigmatize members of a

group, such as gay men and lesbians, is not a

legitimate governmental interest.

The Equal Protection Clause provides that the State

may not treat an individual differently from similarly

situated individuals absent a rational basis for the differ-

ential treatment. See Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (per curiam). The classification

created by the Texas Homosexual Conduct Law is not

rationally related to any legitimate governmental objec-

tive. Respondent suggests that the law encourages “mar-

riage” and “biological reproduction.” Br. in Opp. 18. But

there is no relationship between those interests and the

classification at issue, which allows some unmarried

people (heterosexuals) to engage in non-procreative inti-

mate relationships while prohibiting other unmarried

people (gay and lesbian couples) from engaging in the very

same conduct. Cf. Hisenstadt v. Baird, 405 U.S. 438, 447

n.7, 453-454 (1972) (even if State had power to prohibit

distribution of contraceptives to all persons, State has no

rational basis for prohibiting distribution of contraceptives

only to unmarried persons).

Respondent also invokes tradition and history. Br. in

Opp. 18-19. But those arguments cannot sustain the

classification embodied in Texas’s law, which criminalizes

only homosexual sodomy and permits the heterosexual

sodomy that had, as a historical matter, been equally

disfavored by the law. See page 18, supra. Rather than

justifying the classification under the Equal Protection

Clause, this deviation from historical practice should

trigger a more “careful consideration” to determine

whether it is “obnoxious to the constitutional provision.”

Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. Co.

v. Coleman, 277 U.S. 32, 37-38 (1928)).

Ultimately, the only rationale relied upon by Texas for

prohibiting homosexuals from engaging in “the same act”

that is lawful for heterosexuals is the “communal belief

that the [homosexual] conduct is wrong and should be

discouraged.” Br. in Opp. 18, 19.” But that belief is not

sufficient. As the Court held in Romer, mere disapproval of

homosexuality does not constitute a “legitimate govern-

mental purpose” for “singling out a certain class of citizens

for disfavored legal status or general hardships.” 517 U.S.

at 634, 633. “[I]f the constitutional conception of ‘equal

protection of the laws’ means anything, it must at the very

least mean that a bare ... desire to harm a politically

unpopular group cannot constitute a legitimate governmen-

tal interest.” Ibid. (quoting Department of Agric. v. Moreno,

413 U.S. 528, 534 (1973)); see also City of Cleburne v. Cle-

burne Living Ctr., Inc., 473 U.S. 432 (1985). Indeed, exercises

of government power based on considerations “such as

" Respondent also describes this “communal belief” in terms of

“public morality.” Br. in Opp. 15, 16, 18. But respondent's use of that

label to describe the government interest does not negate the Court's

obligation to determine whether the —— po ye is vn in

bias or judice. Experience teaches t judice someti is

clothed = terms. See Loving v. Virginia, 388 U.S. 1, 3 (1967)

(lower court relied upon the “fact that [God] separated the races” to

“show| ] that he did not intend for the races to mix” in upholding anti-

miscegenation law); Moreno, 413 U.S. at 535 n.7 (adverse treatment of

households of unrelated persons originally defended on moral grounds).

In this case, from its origins and effects, the Texas Homosexual Conduct

Law leaves little doubt that the State’s asserted interest in serving

“public morality” is in reality nothing more than a desire to express its

disapproval of gay people through the criminal law.

caprice, passion, bias, and prejudice are antithetical to the

rule of law.” TXO Prod. Corp. v. Alliance Res. Corp., 509

U.S. 443, 475 (1993) (O’Connor, J., dissenting).”

Texas thus has failed to articulate a legitimate gov-

ernmental interest that is served by its Homosexual

Conduct Law. Yet even if such an interest could be identi-

fied, Texas’s conceded practice of “rarely, if ever, en-

forc{ing]” the law criminally, State v. Morales, 826 S.W.2d

201, 203 (Tex. App. 1992), rev’d on jurisdictional grounds,

869 S.W.2d 941 (Tex. 1994), undermines any claim that the

law actually furthers that interest. See Furman v. Georgia,

408 U.S. 238, 312-313 (1972) (White, J., concurring)

(“common sense and experience tell us that seldom-

enforced laws become ineffective measures for controlling

human conduct” and thus the decision to apply law to only

a few individuals makes the government’s interest “too

attenuated”); id. at 310 (Stewart, J., concurring) (similar);

cf. Nashville, Chattanooga & St. Louis Ry. v. Browning,

310 U.S. 362, 369 (1940) (“Deeply embedded traditional

ways of carrying out state policy ... are often ... truer

than the dead words of the written text.”).

The Texas Homosexual Conduct Law renders gay men

and lesbians strangers to the law and brands them crimi-

nals for engaging in the same intimate consensual conduct

that is lawful for the majority. Such misuse of the criminal

* The criminal sodomy law at issue here shares another common

feature with the state enactment held unconstitutional in Romer. The

provision in Romer barred localities from enacting statutes protecting

gay men and lesbians from discrimination; state sodomy laws can serve

as a functional bar to the enactment of laws prohibiting sexual orienta-

tion discrimination or hate crimes, particularly at the local level. As

petitioners recount (Pet. 14-16), the existence of sodomy laws skews the

political process by permitting opponents of these laws to label gay men

and lesbians as criminals who should not be entitled to invoke the

protections of the government and thus interferes with normal democ-

ratic processes. Cf. United States v. Carolene Prods. Co., 304 U.S. 144,

152-153 n.4 (1938); Washington v. Glucksberg, 521 U.S. 702, 737 (1997)

(O’Connor, J., concurring).

sanction is antithetical to the rule of law, which “implies

equality and justice in its application.” Papachristou v.

City of Jacksonville, 405 U.S. 156, 171 (1972). The Texas

Homosexual Conduct Law should be declared unconstitu-

tional.

CONCLUSION

For the reasons set forth above, the judgment of the

Texas Court of Appeals should be reversed.

JANUARY 2003

Respectfully submitted,

ALFRED P. CARLTON, JR.*

President

AMERICAN BAR ASSOCIATION

RUTH N. BORENSTEIN

BETH S. BRINKMANN

SETH M. GALANTER

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5215

*Counsel of Record

OFFICIAL POLICIES AND CONSTITUTIONAL

AMENDMENTS OF THE

AMERICAN BAR ASSOCIATION

Policy adopted by the House of Delegates, August 1973

Be It Resolved, That the legislatures of the sev-

eral states are urged to repeal all laws which

classify as criminal conduct any form of non-

commercial sexual conduct between consenting

adults in private, saving only those portions

which protect minors or public decorum.

2. Policy adopted by the House of Delegates, February

1979

Be It Resolved, That the American Bar Associa-

tion favors the ratification by the United States

of the International Covenant on Civil and Po-

litical Rights and urges the Senate to give its ad-

vice and consent to ratification of the Covenant

subject to the following reservations, declara-

tions, statements and understandings recom-

mended to the Senate by the Departments of

State and Justice (and an understanding on

“right to life”):

A. The Constitution of the United States and

Article 19 of this Covenant contain provisions for

the protection of individual rights, including the

right of free speech, and nothing in this Cove-

nant shall be deemed to require or authorize leg-

islation or other action by the United States

which would restrict the right of free speech pro-

tected by the Constitution, laws, and practice of

the United States.

B. The United States’ adherence to Article 6

(concerning the “right to life”) is subject to the

Constitution and other laws of the United States.

C. The United States reserves the right to im-

pose capital punishment on any perrson duly con-

victed under existing or future laws permitting

the imposition of capital punishmenit.

D. The United States does not adlhere to Para-

graph (5) of Article 9 or to the third clause of

Paragraph (1) of Article 15 (comypensation for

unlawful arrest, and retroactive ligshter criminal

penalties).

E. The United States considers the (prisoner

segregation and rehabilitation stamdards) rights

enumerated in Paragraphs (2) and! (3) of Article

10 as goals to be achieved progresssively rather

than through immediate implementtation.

F. The United States understamds that sub-

paragraphs (3)(b) and (d) of Article» 14 do not re-

quire the provision of court-appovinted counsel

when the defendant is financially able to retain

counsel or for petty offenses for whhich imprison-

ment will not be imposed. The Unitted States fur-

ther understands that Paragraph ((3)(e) does not

forbid requiring an indigent defendiant to make 4

showing that the witness is necesssary for his at-

tendance to be compelled by tme court. The

United States considers that provissions of United

States law currently in force consstitute compli-

ance with Paragraph (6). The Unitted States un-

derstands that the prohibitiom on double

jeopardy contained in Paragraph (77) is applicable

only when the judgment of acquiittal has been

rendered by a court of the same governmental

unit, whether the Federal Governrment or a con-

stituent unit, which is seeking a neew trial for the

same cause.

G. The United States declares that the (natural

resources utilization) right referred to in Article

47 may be exercised only in accordance with in-

ternational law.

H. The United States shall implement all the

provisions of the Covenant over whose subject

matter the Federal Government exercises legis-

lative and judicial jurisdiction; with respect to

the provisions over whose subject matter con-

stituent units exercise jurisdiction, the Federal

Government shall take appropriate measures, to

the end that the competent authorities of the

constituent units may take appropriate measures

for the fulfillment of this Covenant.

I. The United States declares that the provi-

sions of Articles 1 through 27 of the Covenant are

not self-executing.

3. Policy adopted by the House of Delegates, August 1987

BE IT RESOLVED, That the ABA condemns

crimes of violence including those based on bias

or prejudice against the victim’s race, religion,

sexual orientation, or minority status, and urges

vigorous efforts by federai, state, and local offi-

cials to prosecute the perpetrators and to focus

public attention on this growing national prob-

lem.

Policy adopted by the House of Delegates, August 1989

BE IT RESOLVED, That the American Bar Asso-

ciation urges the Federal government, the states

and local governments to enact legislation, sub-

ject to such exceptions as may be appropriate,

prohibiting discrimination on the basis of sexual

orientation in employment, housing and public

accommodations. “Sexual orientation” means

heterosexuality, bisexuality and homosexuality.

5. Policy adopted by the House of Delegates, August 1990

BE IT RESOLVED, That the American Bar Asso-

ciation adopts the Model Code of Judicial Con-

duct (August 1990), as amended, including the

Preamble, Terminology Section, Canons, text,

Commentary and Application Section, to replace

the ABA Code of Judicial Conduct (adopted Au-

gust 1972, as amended August 1982 and August

1984).

6. Policy adopted by the House of Delegates, August 1991

BE IT RESOLVED, That the American Bar Asso-

ciation supports the enactment of authoritative

measures requiring studies of the existence, if

any, of bias in the federal judicial system, includ-

ing bias based on race, ethnicity, gender, age, ~

sexual orientation and disability, and the extent

to which bias may affect litigants, witnesses, at-

torneys and all those who work in the judicial

branch. -

BE IT FURTHER RESOLVED, That the Ameri-

can Bar Association urges that such studies in-

clude the development of remedial steps to

who contravene university policies by discrimi-

nating on the basis of sexual orientation.

8. Amendment adopted by tie House of Delegates,

August 1992

PROPOSAL: Amend the Constitution to provide

that the National Lesbian and Gay Law Associa-

tion (hereinafter “NLGLA”) is an affiliated or-

ganization.

Amend Section 6.8(a)(1) to read as follows:

(1) The American Judicature Society, the

American Law Institute, the Association of

American Law Schools, the Conference of Chief

Justices, the Hispanic National Bar Association,

the National Asian Pacific American Bar Associa-

tion, the National Association of Attorneys Gen-

eral, the National Association of Bar Executives,

the National Association of Women Judges, the

National Bar Association, the National Confer-

ence of Bar Examiners, the National Conference

of Commissioners on Uniform State Laws, the

National Conference of Women’s Bar Associa-

tions, the National Lesbian and Gay Law Asso-

ciation and the National Organization of Bar

Counsel.

address and eliminate any bias found to exist. 9. Policy adopted by the House of Delegates, August 1994

7. Policy adopted by the House of Delegates, February BE IT RESOLVED: That Standard 211 of the

1992 American Bar Association Standards for the Ap-

BE IT RESOLVED, That the American Bar Asso-

ciation opposes any efforts by government to

withhold funds from, or otherwise penalize, edu-

cational institutions for denying access to cam-

pus placement facilities to government employers

proval of Law Schools be amended to read as fol-

lows:

(a) The law school shall maintain equality of

opportunity in legal education, including em-

ployment of faculty and staff, without discrimi-

nation or segregation on ground of race, color,

religion, national origin, sex or sexual orienta-

tion.

(b) Alaw school shall not use admission policies

or take other action to preclude admission of ap-

plicants or retention of students on the basis or

race, color, religion, national origin, sex or sexual

orientation.

qualified applicant will be treated as made upon

the ground of race, color, religion, national origin,

sex or sexual orientation if the ground of denial

relied upon is

(i) a state constitutional provision or stat-

ute that purports to forbid the admission of

applicants to a school on the ground of race,

color, religion, national origin, sex or sexual

orientation; or

(ii) an admissions qualification of the

school that is intended to prevent the ad-

mission of applicants on the ground of race,

color, religion, national origin, sex or sexual

orientation though not purporting to do so.

(d) The denial by a law school of employment to

a qualified individual will be treated as made

upon the ground of race, color, religion, national

origin, sex or sexual orientation if the ground of

denial relied upon is an employment policy of the

school which is intended to prevent the employ-

ment of individuals on the ground of race, color,

religion, national origin, sex or sexual orientation

though not purporting to do so. —

(e) This Standard does not prevent a law school

from having a religious affiliation or purpose and

adopting and applying policies of admission of

students and employment of faculty and staff

that directly relate to this affiliation or purpose

so long as (1) notice of these policies has been

given to applicants, students, faculty and staff

before their affiliation with the law school, and

(2) the religious affiliation, purpose or policies do

not contravene any other Standard, including

Standard 405(d) concerning academic freedom.

These policies may provide a preference for per-

sons adhering to the religious affiliation or pur-

pose of the law school, but shall not be applied to

use admission policies or take other action to

preclude admission of applicants or retention of

students on the basis of race, color, religion, na-

tional origin, sex or sexual orientation. This

Standard permits religious policies as to admis-

sion, retention and employment only to the ex-

tent that they are protected by the United States

Constitution. It shall be administered as if the

First Amendment of the United States Constitu-

tion governs its application.

(f) Equality of opportunity in legal education

includes equal opportunity to obtain employ-

ment. Each school should communicate to every

employer to whom it furnishes assistance and fa-

cilities for interviewing and other placement

functions the school’s firm expectation that the

employer will observe the principle of equal op-

portunity and will avoid objectionable practices

such as

(i) refusing to hire or promote members of

groups protected by this policy because of

the prejudices of clients or of professional or

official associates;

(ii) applying standards in the hiring and

promoting of such individuals that are

higher than those applied otherwise;

(iii) maintaining a starting or promotional

salary scale as to such individuals that is

lower than is applied otherwise; and

(iv) disregarding personal capabilities by

assigning, in a predetermined or mechanical

manner, such individuals to certain kinds of

work or departments.

10. Policy adopted by the House of Delegates, August

1995

RESOLVED, That the American Bar Association

supports the enactment of legislation and the

implementation of public policy providing that

child custody and visitation shall not be denied

or restricted on the basis of sexual orientation.

11. Policy adopted by the House of Delegates, August

1996

RESOLVED, That the American Bar Association

urges state, territorial and local bar associations

to study bias in their community against gays

and lesbians within the legal profession and the

justice system and make appropriate recommen-

dations to eliminate such bias.

12. Policy adopted by the House of Delegates, February

1999

RESOLVED, That the American Bar Association

supports the enactment of laws and implementa-

tion of public policy that provide that sexual ori-

entation shall not be a bar to adoption when the

adoption is determined to be in the best interests

of the child.

13. Policy adopted by the House of Delegates, August

2002

RESOLVED, That the American Bar Association

urges federal, state, territorial, and local gov-

ernments to enact legislation, promulgate regu-

lations, or take other necessary action to ensure

that an unmarried surviving partner who shared

a mutual, interdependent, committed relation-

ship with a victim of terrorism or other crime can

qualify for crime victim compensation and assis-

tance funds provided by that government to eli-

gible spouses.

FURTHER RESOLVED, That eligibility for such

funds should be determined without reference to

intestate succession laws and should not affect

the operation of such laws.

14. Amendment adopted by the House of Delegates,

August 2002

Amend §6.4(e) of the Constitution to read as fol-

lows:

§6.4(e) A state or local bar association may not be

represented in the House if its governing docu-

ments discriminate with respect to membership

because of race, sex, religion, creed, color, na-

tional origin, ethnicity, age, persons with dis-

abilities and/or sexual orientation.

10a

REPORT NO. 2 OF THE SECTION OF

INDIVIDUAL RIGHTS AND RESPONSIBILITIES

RECOMMENDATION’

Be It Resolved, That the legislatures of the several

states are urged to repeal all laws which classify as crimi-

nal conduct any form of noncommercial sexual conduct

between consenting adults in private, saving only those

portions which protect minors or public decorum.

REPORT

This resolution and report were approved by the

Council of the Section of Individual Rights and Responsi-

bilities at its May 12, 1973, meeting in Washington, D.C.

An identical resolution was passed by the Section of

Criminal Law on February 11, 1973. The Executive Coun-

cil of the Young Lawyers Section passed a similar resolu-

tion on May 20, 1972,’ and the Law Student Division

adopted the same position at the 1972 Annual Meeting.

The concern of the Section in urging adoption of this

resolution is twofold: first, that enforcement of laws

relating to private, consenting, noncommercial sexual

conduct between adults requires an expenditure of en-

forcement manpower that could better be used to protect

public safety and necessitates police practices that are

often reprehensible or unsavory; and, second, that such

* The recommendation was approved. See page 473.

‘ The resolution of the Young Lawyers Section is annexed as

Exhibit A to this report.

*? The resolution of the Law Student Division is annexed as Exhibit

B to this report.

lla

laws impinge on the constitutionally protected zone of

privacy that surrounds each individual and serve no valid

state purpose.

The purpose of the proposal is neither to advocate nor

condemn any particular form of sexual activity between

consenting adults. Such questions are best left to the

private morals and conscience of each individual. This

report is concerned only with what in our society should be

the proper scope of the criminal law. The Council of the

Episcopal Diocese of New York has clearly articulated the

position which underlies this report:

In matters of private morality, the State

rightly seeks to give the protection of the law to

the young, the innocent, the unwilling, and the

incompetent. However, while adultery, fornica-

tion, homosexual acts, and certain deviant sexual

practices among competent and consenting adults

may violate Judeo-Christian standards or moral

conduct, we think that the Penal Law is not the

instrument for the control of such practices when

privately engaged in, where only adults are in-

volved, and where there is no coercion. We favor

repeal of those statutes that make such practices

among competent and consenting adults criminal

acts.

* Statement, On Private Sexual Morality, adopted by the Council of

the Episcopal Diocese of New York, March 18, 1971. See also Resolution

On Homosexuals and the Law, adopted April 12, 1969, by the Council

for Christian Social Action of the United Church of Christ: “Even while

we proclaim a unity under God which transcends our division ... we

still honor variations among men in their political loyalties, lifestyles,

and sexual preferences.”

12a

The philosophy of government underlying this view

was long ago stated by John Stuart Mill:

The only purpose for which power can be

rightfully exercised over any member of a civi-

lized community, against his will, is to prevent

harm to others.‘

With respect to laws concerning consensual sodomy or

the “crime against nature,” eight states — Colorado, Con-

necticut, Delaware, Hawaii, Illinois, North Dakota, Ohio,

and Oregon — have already removed such provisions from

their penal codes. Such revision was recommended by the

Model Penal Code of the American Law Institute.’ A

similar recommendation — subsequently enacted into law —

was made by the Commission on Homosexual Offenses

and Prostitution in Great Britain.‘ Such provisions apply

to both heterosexual and homosexual conduct, but are

most often applied against homosexuals, both in enforce-

ment of the statutes themselves and as a basis for dis-

crimination against homosexuals on the ground that they

are most likely violating the law.’

* J.S. Mill, On-Liberty

* American Law Institute, Model Penal Code §207, Comment 227-

78 (Tent. Draft No. 4, 1955).

* Report of the Commission on Homosexual Offenses and Prostitu-

tion, Great Britain (1963).

" Thus, in Matter of Kimball, 40 NY A.D. 2d 252 (2d Dept. 1973),

the New York Appellate Division for the Second Department, in a case

involving the application of an acknowledged homosexual for admission

to the Bar, stated: “Accordingly, so long as this statute is in effect (Penal

Law §130.38), homosexuality, which, in its fulfillment, usually entails

commission of such a statutorily prescribed act, is a factor which could

militate against the eligibility of an applicant for admission to the Bar

(Continued on following page)

13a

A task force of the National Institute of Mental Health

has recommended repeal of such provisions to help allevi-

ate this discrimination and the resulting harm it causes

the affected individuals.’

Further, there is a serious question of the constitutional-

ity of such statutory prohibitions against consensual sodomy.

The language of some of the statutes is so vague that it

renders the statute unconstitutional.’ Others are of ques-

tionable validity as a result of extensions of the doctrine of

the right of privacy, particularly with respect to the body.”

Those which create classifications based on marital status,

who proposes to pursue this way of life in disregard of the statute.” 40

A.D. 2d at 257. See the discussion of discrimination against homosexu-

als in Report of the Commission on Sex & Law and the Committee on

Civil Rights of the Association of the Bar of the City of New York, Intro.

475, 28 Record of the Assoc. of the Bar of the City of New York 148

(1973). See also Government Created Employment Disabilities and the

Homosexual, 82 Harv. L. Rev. 1738 (1969); The Consenting Adult

Homosexual and the Law: An Empirical Study of Enforcement and

Administration in Los Angeles County, 13 U.C.L.A. L. Rev. 643 (1969).

* The report of the task force states: “We believe that most

professionals working in this area — on the basis of their collective

research and clinical experience and the present overall knowledge on

the subject —- are strongly convinced that the extreme opprobrium that

our society has attached to homosexual behavior, by way of criminal

statutes and restrictive employment practices, has done more social

harm than good and goes beyond what is necessary for the maintenance

of public order and human decency.” Final Report of the Task Force on

Homosexuality, National Institute of Mental Health, October 10, 1969,

published in SIECUS Newsletter, Vol. V1, No. 2, December 1970, pp. 3-

12, at p. 10. See also Position Paper on Homosexuality and Mental

Illness, National Association for Mental Health, October 17, 1970.

* Franklin v. Florida, 257 So. 2d 21 (Fla. 1971).

* Roe v. Wade, __ U.S. ___, 35 L. Ed. 2d 147 (1973); Doe v. Bolton,

__._ U.S. __, 35 L. Ed. 2d 201 (1973); Griswold v. Connecticut, 381 U.S.

479, 14 L. Ed. 2d 510 (1965).

l4a

such as the New York statute,” are subject to constitu-

tional attack on that basis also as establishing a discrimi-

natory classification.”

The constitutional weakness of the sodomy statutes as

a result of expansion of the right of privacy also extends to

statutory prohibitions on adultery and fornication.” Penal

Code provisions against adultery and fornication are

seldom enforced, in any event. The Model Penal Code of

the American Law Institute also recommended deletion of

these provisions from the criminal law.”

It is the view of this Section that, even aside from the

question of the constitutionality of statutory prohibitions

on sodomy, adultery, and fornication, these provisions

should be eliminated from the criminal law for the reason

stated in the Model Penal Code: “No harm to the secular

interests of the Community is involved in atypical sexual

practice in private between consenting adult partners.””

The consequence of this, as stated by St. Thomas Aquinas,

" N.Y. Penal Law §130.38.

* Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349 (1972).

” United States v. Moses, 41 U.S.L.W. 2298 (D.C. Super. Ct., Crim.

No. 17778-72, Nov. 3, 1972), held that Congress could not constitution-

ally prohibit fornication, sodomy, or adultery among consenting adults.

“ See New York County Lawyers Association Committee on Civil

Rights, Report of the Committee for Proposed Changes in the New York

State Penal Law in Regard to the crimes of Adultery, Consensual

Sodomy, and Prostitution (February 2, 1973).

* Model Penal Code, op. cit.

* Id.

15a

is that “(P)rivate sin is different from public crime, and

only the latter lies in the province of man-made law.””

One significant effect of attempting to enforce private

morality which has only in recent years begun to be fully

appreciated is the strain such efforts place on the police by

diverting their energies and manpower from enforcement

of violent crimes. This effect has been explored through

investigations by many groups, including the Commission

on Correctional Facilities and Services of the American

Bar Association; the San Francisco Committee on Crime;

the New York State Legislative Hearings on Victimless

Crimes; the National Alliance for Safer Cities; the Presi-

dent’s Crime Commission; and the National Council on

Crime and Delinquency.”* The consensus of these groups is

that a change in attitude about the function of the crimi-

nal law and elimination of many offenses relating to

morality from the criminal codes are necessary steps to

free the police to concentrate on violent crimes. Further,

there is concern over the methods the police must use to

enforce such provisions.”

” Quoted in statement of Rev. Leon A. Dickinson, Jr., Secretary for

Chaplains and Religion and Health, United Church of Christ, at New

York State Legislative Hearings on Victimless Crime (New York City,

Sept. 13, 1971). .

* For a summary of the recommendations of these and other

groups on the question of victimless crimes, see E. Kiester, Crimes with

No Victims (Alliance for a Safer New York, 1972). See also Olivieri and

Finkelstein, Report on “Victimless Crime” in New York State, 18 N.Y.

Law Forum 77 (1972).

* New York City Police Commissioner Patrick Murphy has stated:

“By charging our police with responsibility to enforce the unenforceable

we subject them to disrespect and corruptive influences (and) provide

the organized criminal syndicates with illicit industries upon which

(Continued on following page)

16a

This report is not to be taken as: advocating elimina-

tion of all the so-called “victimless ccrimes.” It has been

urged that some of the crimes so classsified do in fact often

have victims. Prostitution is the meost frequently cited

example, where either the prostitutee or the patron may

suffer assault. The resolution here proposed would not

urge legalization of prostitution, but. would apply only to

noncommercial sexual activities. Norr does it recommend

repeal of existing provisions which prrotect minors and the

public decorum. Rather, we urge thae retention of these

provisions. The Section does urge, however, that other

offenses regarding noncommercial sexxual conduct between

consenting adults in private are thee types of “victimless

crimes” which should be eliminated frrom the criminal law.

For all the reasons stated above», we urge adoption of

the resolution by the House of Delegaates.

MccNeill Smith

Chaairman

17a

A Sampling Of Major Law Firms That Have

Policies Specifically Prohibiting Discrimination

Based On Sexual Orientation’

Akin, Gump, Strauss, Hauer & Feld

Andrews & Kurth

Arnold & Porter

Baker & Hostetler

Baker & McKenzie

Baker Botts

Bingham McCutchen

Brobeck, Phleger & Harrison

Bryan Cave

Buchanan Ingersoll

Cadwalader, Wickersham & Taft

Cahill Gordon & Reindel

Chadbourne & Parke

Cleary, Gottlieb, Steen & Hamilton

Covington & Burling

Cozen O’Connor

Cravath, Swaine & Moore

Davis Polk & Wardwell

" These 81 firms are all among the 100 top revenue-producing law

firms as listed in The AmLaw 100, The American Lawyer, July 2002, at

125. Information about the firms’ policies was based on the firms’

enon SP a ral Association for Law Placement.

ational Association for Law Placement,

Employers (2002), also available at Pha ann Ne i ys

firms whose anti-discrimination policies expressly reference sexual

orientation are included. As noted above, see Br. 10 n.6, several other

major law firms, whose responses on their NALP forms did not indicate

they have such policies, specify on their websites that they do have such

18a

Debevoise & Plimpton

Dechert

Dorsey & Whitney

Duane Morris

Finnegan, Henderson, Farabow, Garrett & Dunner

Foley & Lardner

Fried, Frank, Harris, Shriver & Jacobson

Gibson, Dunn & Crutcher

Goodwin Procter

Greenberg Traurig

Hale & Dorr

Haynes & Boone

Heller Ehrman White & McAuliffe

Holland & Knight

Howrey Simon Arnold & White

Hunton & Williams

Jenner & Block ~

Jones, Day, Reavis & Pogue

Katten Muchin Zavis

Kaye Scholer

Kilpatrick Stockton

King & Spalding

Kirkpatrick & Lockhart

Latham & Watkins f

LeBoeuf, Lamb, Greene & MacRae

Mayer, Brown, Rowe & Maw

Milbank, Tweed, Hadley & McCloy

Mintz, Levin, Cohn, Ferris, Glovskv & Popeo

Morgan, Lewis & Bockius

Morrison & Foerster

Nixon Peabody

O’Melveny & Myers

19a

Orrick, Herrington & Sutcliffe

Paul, Hastings, Janofsky & Walker

Paul, Weiss, Rifkind, Wharton & Garrison

Pillsbury Winthrop

Piper Rudnick

Proskauer Rose

Quarles & Brady

Reed Smith

Ropes & Gray

Schulte Roth & Zabel

Seyfarth Shaw

Shaw Pittman

Shearman & Sterling

Sidley Austin Brown & Wood

Simpson Thacher & Bartlett

Skadden, Arps, Slate, Meagher & Flom

Squire Sanders & Dempsey

Stroock & Stroock & Lavan

Sullivan & Cromwell

Swidler Berlin Shereff Friedman

Testa, Hurwitz & Thibeault

Thelen Reid & Priest

Troutman Sanders

Vinson & Elkins

Wachtell, Lipton, Rosen & Katz

Weil, Gotshal & Manges

White & Case

Willkie Farr & Gallagher

Wilmer, Cutler & Pickering

Wilson Sonsini Goodrich & Rosati

Winston & Strawn

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.