# Amicus Curiae Brief — Lawrence v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 558 ## Text < Supmame Cwuss, ve . 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 SJ BRIEF OF THE AMERICAN BAR ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PETITIONERS o 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............. 1. 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 ..................... 14 ii 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 iv 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 v 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 vi 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 ix 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 x 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 xi 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 1 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. 2 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. 3 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 4 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. 5 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. 6 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. 7 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 8 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 9 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). 10 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) 11 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 12 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 13 — 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 14 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). 15 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). 16 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 17 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 18 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 19 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. 20 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 21 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). 22 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). 23 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 24 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. 25 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 26 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). 27 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 28 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. 29 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). 30 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 1. la 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. i 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. 2a 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. 3a 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 4a 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 : 5a 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, 6a 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. (c) The denial by a law school of admission to a 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 7a 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; 8a (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 9a 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A16. Public record. Not legal advice.