Amicus Curiae Brief — Lawrence v. Texas

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: Depemme Owed, 8.

lb FILED

No. 02-102

IN THE | OFFIC OF THE fy reg

Supreme Court of the Anited States

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

THE STATE OF TEXAS,

Respondent.

On Writ of Certiorari to the

Court of Appeals of Texas, Fourteenth District

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

WILLIAM ESKRIDGE ROBERT A. LEVY *

JOHN A. GARVER PROFESSOR CATO INSTITUTE

OF JURISPRUDENCE, 1000 Mass. Ave., N.W.

YALE LAW SCHOOL Washington, D.C. 20001

127 Wall Street (202) 842-0200

New Haven, CT 06511

(203) 432-9056

* Counsel of Record

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

50 pp

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

FIRST PRINCIPLES: THE FOURTEENTH

AMENDMENT REQUIRES THAT STATE

CRIMINAL LAWS CLEARLY NOTIFY

CITIZENS OF THEIR COVERAGE, NOT

DISCRIMINATE ARBITRARILY AGAINST

CLASSES OF PERSONS, AND RESPECT

FUNDAMENTAL LIBERTIES

A. The Legality Principle

B. The Equality Principle

C. The Liberty Principle

HISTORY: SODOMY STATUTES HAVE

HISTORICALLY FOCUSED ON PREDA-

TORY AND PUBLIC ACTIVITIES; CON-

SENSUAL “HOMOSEXUAL” ACTIVITIES

BECAME THEIR FOCUS ONLY IN THE

MID-TWENTIETH CENTURY

A. Nineteenth-Century Sodomy Laws

B. Expansion of Sodomy Laws, 1879-1969

C. Sodomy Reform and Reformulation, 1969-

III.

TABLE OF CONTENTS—Continued

DOCTRINE: TEXAS’S HOMOSEXUAL

CONDUCT LAW VIOLATES THE DUE

PROCESS, EQUAL PROTECTION, AND

PRIVILEGES OR IMMUNITIES CLAUSES

OF THE FOURTEENTH AMENDMENT .......

The Texas Homosexual Conduct Law

Violates the Equal Protection Clause, as

Construed in Romer v. Evans, For It

Targets Gay People as an Outlaw Class

Because of Antigay Animus ...............0000008

The Texas Homosexual Conduct Law

Violates the Due Process Clause, as It

Criminalizes Gay People’s Most Private

Activities; Bowers v. Hardwick Should Be

The Texas Homosexual Conduct Law Vio-

lates the Privileges or Immunities Clause....

HNCLALIBION wcccccccsscrcccscesscccccescevccscocsnsccsssesssoscssscsocoses

APPENDICES

STATE CRIME AGAINST NATURE,

SODOMY, AND BUGGERY LAWS, 1868

REPORTED STATE SODOMY DECISIONS,

NINETEENTH CENTURY ..........:ccceeeeevees

iii

TABLE OF AUTHORITIES

CASES Page

Alston v. State, 1991 Tex. App. Lexis 2366, *5

ee ae ONE 20

Beller v. Middendorf, 632 F.2d 788 (9th Cir.

pie snctniniendedanscenapuabinianniattiabeenienminiabeninitenegeis 19

Bowers v. Hardwick, 478 US. 186

Ee ee : 2-3, 8, 17, 22-27

Boyd v. United States, 116 U.S. 616 (1886) .......... 7

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

en CEE 26

Carey v. Population Servs. Int'l, 431 U.S. 678

Ee Ui nciiestennannetenntntunnsannsnteiabenatecennentaniiintebainninints 8, 22

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

IES Wills Weta nrncninccnssccnsnsecntenitcniniachtnnates 20

Commonwealth v. Alger, 61 Mass. 53, 102

iii osinsrsancnnensnnseiniatenenntnntuetinesentnnsatniammtbenecess 6

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

Pee hasinaretnctndncnnanssatenesuinemnanennnntninssiabiatnntemnenn 17, 26

Cox v. Louisiana, 379 U.S. 559 (1965)............00000 4

Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.

es CRED SA cretintensnecntnemensticshesennenii 6-7, 28, 29

County of Sacramento v. Lewis, 523 U.S. 833

a ee SNEED 6

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

ee Co icrscionsnersnenterenstnnenterensieenens 7, 18, 22, 23

Craig v. Boren, 429 U.S. 190 (1976) ........cccccccceeeee 10

Edwards v. Aguillard, 482 U.S. 578 (1987) .......... 10

Eisenstadt v. Baird, 405 U.S. 438 (1972)............ 8, 22, 23

Griswold v. Connecticut, 381 U.S. 479 (1965)......2, 8, 22

Gryczan v. State, 942 P.2d 112 (Mont. 1997)........ 26

Head v. Newton, 596 S.W.2d 209 (Tex. App.

SUE donecannsnsseenpingminennentnereemmmennenentrenebmssnmmenmecens 20

Jegley v. Picado, 80 §.W.3d 332 (Ark. 2002) ....... 26

Kyllo v. United States, 533 U.S. 27, 37 (2001)...... 7

TABLE OF AUTHORITIES—Continued

Page

McBoyle v. United States, 283 U.S. 25 (1931)...... 4

McLaughlin v. Florida, 379 U.S. 184 (1963)........ 24-25

Medis v. State, 11 S.W. 112 (Tex. Cr. App. 1889) 12

Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 7

Modinos v. Cyprus, 16 Eur. Hum. Rts. Rep. 485

(ra reneeneneutsnsneniniiteeanandesatteiiiileeshinememastiiameasiaiaes 27

Moore v. East Cleveland, 431 U.S.. 494

Ea nrsitensnsnnteantnasenienaiineianiaieniemeiael 8, 22, 23, 24

National Coalition for Gay & Lesbian Equality v.

Minister of Justice, 1999 (1) SA 6 (Const’! Ct.

Ee Ga We icntntteninnn 27

Norris v. Ireland, 13 Eur. Hum. Rts. Rep. 186

EE eee ee a 27

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987).. 19

Papachristou v. City of Jacksonville, 405 U.S.

Pe Ue crnsareenecentenisensantnsuenntnnnmenmmmnmens 4

Payne v. Tennessee, 501 U.S. 808 (1991).............. 26

People v. Earl, 31 Cal. Rptr. 76 (Dist. Ct. App.

TE conennsensensenenmunsiensninensennsmandnenigemmnnneieians 14

People v. Onofre, 415 N.E.2d 947 (N.Y. 1980),

cert. denied, 451 U.S. 987 (1981) ........ccccccceeeeees 8

Planned Parenthood v. Casey, 505 U.S. 833

ee 7, 26

Plessy v. Ferguson, 163 U.S. 537 (1896) .............. 5, 25

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

BE creemasenasmensseninsinteninnnnmmamenimamatensnenetn 17

Powell v. State, 510 S.E.2d 18 (Ga. 1998)............. 26

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

ee Ci a ccnrnnnnpemansnsssnsntiineseneqnaneutatennsanens 5

Regina v. Wiseman, 92 Eng. Rep. 774 (K.B.

FEED cocseasnatrensmanienncemeentienpteittonpustninnielamnimetion 10

—_e-

AEN,

TABLE OF AUTHORITIES—Continued

Page

Roberts v. United States Jaycees, 468 U.S. 609

SEITE srevcnennsnuntensnpenssninenenspeanameenaginenmepemminenens 7-8

Romer v. Evans, 517 U.S. 620 (1996)....1-2, 18-21, 25-26

Schochet v. State, 580 A.2d 176 (Md. 1990)......... 17

Sears v. Cottrell, 5 Mich. 251 (1858) ................00+. 6

The Slaughter-House Cases, 83 U.S. 36 (1873)...... 29-30

Stanley v. Georgia, U.S. (1969) .........ccccccceeeeees 2, 8, 22, 23

State v. Cogshill, 997 S.W.2d 534 (Mo. App.

Sia srtnenrepninsornntnesenitnemmmtemennnememmmnnennein 26

Toonen v. Australia, U.N. Doc. CCPR/c/5S0/

Ee recarennnerereeeenmmmantionpermenennenen 27

Troxel v. Granville, 530 U.S. 57 (2000) ................ 2, 6, 24

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

Se ncscnnsneennnisensnentetenanainsnapeneninnipemeamnedinanenn 7, 22, 23

Wainwright v. Stone, 414 U.S. 21 (1973) .............. )

Washington v. Glucksberg, 521 U.S. 702 (1997)... 26-27

Weigand v. Houghton, 730 So.2d 581 (Miss.

iia ahaa datietedbainataiemeiai nena ciaaeataaliiaaadtiiaaate 20

Williams v. State, 1998 Extra Lexis 260 (Balt.

, SIA III ioc trnerarinatartintthtecemmeniasstiabuenidaaninits 26

Wynehammer v. People, 13 N.Y. 378 (1856)........ 6

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............. 19

CONSTITUTION

Declaration of Independence ......................0000++ 4, 5-6, 30

United States Constitution ...................cccccccceeeeeeeees passim

Article IV, Section 2, Clause 1 ................:.000000 6-7, 28

IT i ncsnrensteansenstnnidenemunpenns 6, 28

Fourteenth Amendment, Section 1 .................0. passim

Privileges or Immunities Clause.......... 2-3, 7-8, 18, 27-30

Due Process Clause..........0ccccccsssssseseeees 2-3, 7-8, 18, 22-27

Equal Protection Clause.....................0++ 2, 3, 5, 8, 18-22

TABLE OF AUTHORITIES—Continued

Page

Congressional Globe, 39th Congress, Ist Session

I ccenenintiitiniileaindataaieetaenshinanisiaitiaiindtniieaiinanitnueiieial 4,5,29

The Federalist No. 78 (Clinton Rossiter ed.

UTE ninsicininsinniocniansnnieciabnccanssianiniiaiaiabbaiasiingttiniaiattn 18

STATUTES

American Law Institute, Model Penal Code

A nee 15, 16

Tentative Draft No. 4 (1955) (commentary)...... 15

1977 Ark. Acts 2118, 21 18-19... ccc ceeeeeeeee 17, 19

127 Congressional Record (1981) .........c.cseeeeeees 16

1972 Idaho Laws 844, 966-67 .............ccccccessseeeeees 16, 19

1969 Kan. Laws ch. 180, § 21-3505 .....0............0. 16

ie Sat TIT ston i nsiiedasiiteaisimmenmnnatetinipeiesinnens 15

Kk eee 15

Texas Penal Code

Homosexual Conduct Law, § 21.06................... passim

Public Lewdness Law, § 21.07 .0.........cccccccceeeeees 21

Indecent Exposure Law, § 21.08................:c0000 21

Texas Health & Safety Code § 85.007(b)(2)

Ee eae en 20

SCHOLARSHIP

American Academy of Pediatrics, Technical

Report: Coparent or Second-Parent Adoptions

by Same-Sex Parents, 109 Pediatrics 341 (Feb.

ES 0 24

Chester Antieau, Paul's Perverted Privileges or

the True Meaning of the Privileges and

Immunities Clause of Article Four, 9 Wm. &

ee 28

vii

TABLE OF AUTHORITIES—Continued

Page

Randy Barnett, The Rights Retained by the

People: The History and Meaning of the Ninth

i certinntintininnennnisinnstinaintaanansiion 6

Joel Prentiss Bishop, Commentaries on the

Criminal Law (2d ed. 1859)............:ccccecceeeeeeeees 10

William Blackstone, Commentaries on the

Laws of England (1765)...........c.scsseeseeeeeeeeeees 6, 28, 29

Philip Blumstein & Pepper Schwartz, American

Couples: Money, Work, Sex (1983) .........c.000 24

Joseph Chitty, A Practical Treatise on

I eetcinciinnitnincniescnniainmel 9, 10, 11

Michael Conant, Antimonopoly Tradition under

the Ninth and Fourteenth Amendments:

Slaughter-House Cases Re-Examined, 31

ats Pe retemmenenmmanionmme 28

Thomas Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative

Power of the States of the American Union

Michael Kent Curtis, No State Shall Abridge:

The Fourteenth Amendment and the Bill of

_ A cicinriniantientietmnstinimnnnmeene: 7, 28, 30

John D’Emilio, Sexual Politics, Sexual Com-

munities: The Making of a Homosexual

Minority in the United States, 1940-1970

Robert Desty, A Compendium of American

GRRE RIP Ce Pccccnccctnseencersmepmeneeneee 9, 10

William Eskridge, Jr., Gaylaw: Challenging

the Apartheid of the Closet (1999).............0+. 10, 13, 14

vill

TABLE OF AUTHORITIES—Continued

, Law and the Construction

of the Closet: American Regulation of Same-

Sex Intimacy, 1880-1946, 82 lowa L. Rev.

1OBP-C 1997) ..cccceccccccseceserscccecccscossscnsssnessssnssoosooess

, Privacy Jurisprudence and

the Apartheid of the Closet, 1946-1961, 24 Fla.

St. U.L. Rev. 703 (1997).........ssssssesseersereeeesees

Lillian Faderman, Odd Girls and Twilight

Lovers: A History of Lesbian Life in

Twentieth-Century America (1991) ........+0+00

Charles Fairman, Does the Fourteenth Amend-

ment Incorporate the Bill of Rights? The

Original Understanding, 2 Stan. L. Rev. 5

(1949) ...ccrcccercvssscescecceoscrsessesenssosonscssssenesssesoossoeses

Eric Foner, The Strange Career of the Recon-

struction Amendments, 108 Yale L.J. 2003

(1999) ...ccccccsrsecsveseesvsresersersessessosensesoesssssssesososenses

Charles Fried, Order and Law — Arguing the

Reagan Revolution (1991) .........csseeeereeeeeeneeees

Anne Goldstein, History, Homosexuality and

Political Values: Searching for the Hidden

Determinants of Bowers v. Hardwick, 97 Yale

LJ. 1673 (1DBB) ..ccrccccccecsccecscccceccsscossscssescsscssseees

Ronald Hamowy, Preventive Medicine and the

Criminalization of Sexual Immorality in Nine-

teenth Century America, in Assessing the

Criminal 35-97 (Randy Barnett & John Hagel

BEE 8B. 1977) ..cccccceccccccscoreeccecosecesccccsesonsssssscsscees

John Harrison, Reconstructing the Privileges or

Immunities Clause, 101 Yale L.J. 1385 (1992).

Idaho Repeals New Consenting Adults Code, The

Advocate, May 10, 1972, at 3 ........:sseeeeereenees

Page

14, 15

TABLE OF AUTHORITIES—Continued

Dale Jennings, To Be Accused Is To Be Guilty,

One, Inc., Jan. 1953, at 11-12 ......cccccceeeeeseeees

Susan Johnson, Staying Power: Long Term

Lesbian Couples (1990) .....cccccccceccseseeeseeseeee cone

Robert Kaczorowski, Revolutionary Constitu-

tionalism in the Era of the Civil War and

Reconstruction, 61 NYU L. Rev. 863 (1986)....

Jonathan Ned Katz, Gay American History

CPU cceressssernsensessnesenessvastensssnenensesensensnsneensesscnses

Lawrence Kurdek, Relationship Outcomes and

Their Predictors: Longitudinal Evidence from

Heterosexual Married, Gay Cohabiting, and

Lesbian Cohabiting Couples, 60 J. Marr. &

PUR, SED CBI pccccecccsscscccccesccsccccccssccvsccvsecnsesseces

Philip Kurland, The Privileges or Immunities

Clause: “Its Hour Come Round At Last?,”

1972 Wash. U. L.Q. 408 .......cccccsecesereseeeseneees

Earl Lind, Autobiography of an Androgyne

FB sccesancissesessensectssnsesccessseensusssessenssepssuscsnneesene

John May, The Law of Crimes (1881) .........000++00+

William Nelson, The Fourteenth Amendment:

From Political Principle to Judicial Doctrine

CRIED vxcccscevssscsescsncnnsncssenscenccnsnessvescessencssesesscosees

, Americanization of the Common

Law: The Impact of Legal Change in Massa-

chusetts Society, 1760-1830 (1975) ......cceeeeeeees

Richard Posner, Sex and Reason (1992)..........000+

Robert Reinstein, Completing the Constitution:

The Declaration of Independence, Bill of

Rights and Fourteenth Amendment, 66 Temple

Page

12, 14

TABLE OF AUTHORITIES—Continued

Roger Pilon, On the First Principles of Con-

stitutionalism: Liberty, Then Democracy, 8

Am. U.J. Int’l L. & Pol’y 531 (1993) ...........00

David A.J. Richards, Conscience and the Con-

stitution: History, Theory, and the Law of the

Reconstruction Amendments (1993) ..........0.0000

Kimberly Shankman & Roger Pilon, Reviving the

Privileges or Immunities Clause to Redress the

Balance Among States, Individuals, and the

Federal Government, 3 Tex. Rev. L. & Pol’y |

Jacobus tenBroek, Equal Under Law (1965)

(originally published as The Antislavery Ori-

gins of the Fourteenth Amendment)...............0++

Clarence Thomas, The Higher Law Background

of the Privileges or Immunities Clause of the

Fourteenth Amendment, 12 Harv. J. L. & Pub.

PE he CD i cesntetenittencinnenentniementermnaenieienin

Francis Wharton, Treatise on the Criminal Law

of the United States (2d ed. 1852)...

, A Treatise on Criminal Law

SE, Wee ic rencriiccinnssiteninnediesinansainniatinnacanatis

Page

—

INTEREST OF AMICUS CURIAE ' :

The Cato Institute was established in 1977 as a non-

partisan public policy research foundation dedicated to

advancing the principles of individual liberty, free markets,

and limited government. Cato’s Center for Constitutional

Studies was established in 1989 to help restore limited

constitutional government and secure those constitutional

rights, both enumerated and unenumerated, that are the

foundation of individual liberty. Toward those ends, the

Center publishes books and studies, conducts conferences and

forums, publishes the annual Cato Supreme Court Review,

and files amicus curiae briefs with the courts. The instant

case raises squarely the rights of free association, privacy,

and equal protection under the rule of law and thus is of

central concern to Cato and the Center.

STATEMENT OF THE CASE

Amicus adopts and incorporates Petitioners’ statement of

the case.

SUMMARY OF ARGUMENT

The Fourteenth Amendment requires that the state protect

the fundamental liberties of its citizens, and that it do so on an

equal basis. Texas’s Homosexual Conduct Law violates both

prongs of the constitutional assurance. By making only

consensual “homosexual” sodomy illegal, the law violates the

Equal Protection Clause as interpreted in Romer v. Evans,

517 U.S. 620 (1996). As in Evans, the statute here is a

novelty in the law. Because consensual sodomy had be-

come widely practiced and acceptable among the political

' The parties’ consent to the filling of this amicus brief-has been lodged

with the Clerk of this Court. In accordance with Rule 37.6, amicus states

that no counsel for either party has authored this brief in whole or in part,

and no person or entity, other than the amicus, has made a monetary

contribution to the preparation or submission of this brief.

mainstream by 1973, Texas narrowed the crime to “Homo-

sexual Conduct.” Like the law in Evans, Texas’s law

imposes a “broad and undifferentiated disability on a single

named group,” i.e., “homosexuals,” and its “sheer breadth is

so discontinuous with the reasons offered for it that the [law]

seems inexplicable by anything but animus against the class

that it affects,” gay people. /d. at 632.

There is a deeper problem with the Homosexual Conduct

Law. America’s founding generation established our govern-

ment to protect rather than invade fundamental liberties,

including personal security, the sanctity of the home, and

interpersonal relations. So long as people are not harming

others, they can presumptively engage in the pursuit of their

own happiness. The Fourteenth Amendment’s Privileges or

Immunities Clause and its Due Process Clause (as interpreted

by this Court) made this principle applicable to the states. A

law authorizing the police to intrude into one’s intimate

consensual relations is at war with this precept and should be

invalidated, for the same reasons this Court invalidated police

intrusions into marital bedrooms, Griswold v. Connecticut,

381 U.S. 479 (1965); into home viewing of obscene mate-

rials, Stanley v. Georgia, 394 U.S. 557 (1969); and into the

parental household, Troxel v. Granville, 530 U.S. 57 (2000).

To be sure, this Court in Bowers v. Hardwick, 478 U.S. 186

(1986), declined to read the Due Process Clause to protect

consensual “homosexual sodomy.” Hardwick, however,

rested upon an incomplete understanding of Anglo-American

legal traditions. For example, its survey identified sodomy

laws with “homosexuality,” when in fact nineteenth century

sodomy laws applied to male-female as well as male-male

activities (and did not apply to female-female activities). As

understood in light of the common law and as applied,

sodomy laws were aimed at public conduct and sexual

activities that were not consensual. Because of its incomplete

reading of history and its inconsistency with Evans and this

Court’s privacy precedents, Hardwick’s interpretation of the

Due Process Clause should be overruled. In the alternative,

this Court should rule that the Privileges or Immunities

Clause (not addressed in Hardwick) bars the states from

criminalizing private sodomy between consenting adults.

ARGUMENT

I. FIRST PRINCIPLES: THE FOURTEENTH

AMENDMENT REQUIRES THAT STATE

CRIMINAL LAWS CLEARLY NOTIFY CITI-

ZENS OF THEIR COVERAGE, NOT DISCRIM-

INATE ARBITRARILY AGAINST CLASSES OF

PERSONS, AND RESPECT FUNDAMENTAL

LIBERTIES.

The Framers of the Constitution and the Bill of Rights

believed that government existed to protect the fundamental

liberties of its citizens. The Framers of the Fourteenth

Amendment elaborated upon this idea and applied it to the

states. By their lights, the second sentence of Section |

rendered the states accountable to three precepts: the legality

principle, which requires the state to provide the citizenry

with clear notice as to what conduct is criminal; the equality

principle, which bars the state from applying the law

arbitrarily or against a subordinated class; and the liberty

principle, which requires the state to respect Americans’

fundamental freedoms. Consistent with their expectations,

this Court has vigorously enforced the legality principle under

the Due Process Clause and the equality principle under the

Equal Protection Clause. The liberty principle, originally em-

bodied in the Privileges or Immunities Clause, has primarily

been enforced under the Due Process Clause.

A. The Legality Principle

The Fourteenth Amendment’s Due Process Clause was

copied from the Fifth Amendment, which reflected the

Magna Carta’s concept of per legem terrem. For the

government to act “according to the law of the land” requires

state officials to follow the rule of law and not their own

biases. This Court has understood due process to require that

criminal statutes give clear notice to the citizenry as to

precisely what conduct is illegal, e.g., McBoyle v. United

States, 283 U.S. 25 (1931), and to the police to assure that

their discretion is strictly controlled. E.g., Cox v. Louisiana,

379 U.S. 559, 579 (1965) (Black, J.). Some of the precedents

also support the idea that the state cannot criminalize conduct

everyone engages in and then enforce the law only against

marginalized citizens. E.g., Papachristou v. City of Jack-

sonville, 405 U.S. 156, 162-63, 169-71 (1972).

B. The Equality Principle

The Declaration of Independence announced that “all men

are created equal.”* Applying this principle to the states, the

Framers of the Fourteenth Amendment emphasized that “the

American system rests on the assertion of the equal right of

every man to life, liberty, and the pursuit of happiness.”

Cong. Globe, 39th Cong., Ist Sess. 1088-89 (1866). This

equality principle embodied two complementary norms:

rationality and anti-caste. Foundational for the liberal state,

the rationality norm insists that state differentiations be

reasonably connected to legitimate public policies and not be

the result of prejudice against an unpopular minority. Impor-

? The Constitution and the Reconstruction Amendments cannot be

properly understood without reference to the Declaration of Indepen-

dence. See Clarence Thomas, The Higher Law Background of the

Privileges or Immunities Clause of the Fourteenth Amendment, \2 Harv.

J. L. & Pub. Pol’y 63 (1989).

>On the drafting and ratification history, see William Nelson, The

Fourteenth Amendment: From Political Principle to Judicial Doctrine

(1988).

tant for the peaceful functioning of pluralist democracies, the

anti-caste norm debars the state from creating a subordinate .

underclass alienated from the law.‘

Although the immediate beneficiaries of this principle were

the freed slaves, the Framers understood the principle to

apply generally, for “there is no more effective practical

guaranty against arbitrary and unreasonable government than

to require the principles of law which officials would impose

upon a minority must be imposed generally.” Railway

Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949)

(Jackson, J., concurring). Applying this precept, this Court in

Romer v. Evans, 517 U.S. 620 (1996), invalidated an antigay

initiative. Because the initiative imposed special, pervasive

disabilities on gay people, it was class legislation. See also

Plessy v. Ferguson, 163 U.S. 537, 552-55 (1896) (Harlan, J.,

dissenting). Because its antigay exclusions were neither

necessary nor sufficient to achieve traditional state objectives,

the Court inferred that the initiative was a product of

inadmissible antigay “animus,” per se invalid under the Equal

Protection Clause.

C. The Liberty Principle

The American Revolution and the Constitution of 1789

sought to secure the blessings of liberty. The Declaration of

Independence asserted that it was “self-evident” that men “are

endowed by their Creator with certain unalienable Rights,” to

* Introducing the proposed Fourteenth Amendment, Senator Howard

said it would “abolish-all class legislation in the States and [do] away with

the injustice of subjecting one caste of persons to a code not applicable to

another.” Cong. Globe, 39th Cong., Ist Sess. 2766 (1866); see also

Nelson, supra note 3 (thorough examination of the Framers’ articulation

of a general equality principle).

*See generally Roger Pilon, On the First Principles of Consti-

tutionalism: Liberty, Then Democracy, 8 Am. U.J. Int’l L. & Pol’y 531

(1993).

wit: “Life, Liberty, and the Pursuit of Happiness.” Among

the rights the Framers had in mind were rights of personal

security, or “a person’s legal and uninterrupted enjoyment of

his life, his limbs, his body, his health and his reputation”; of

personal liberty to move about; and of personal property,

namely, “(t]he free use, enjoyment, and disposal of all his

acquisitions, without any control or diminution save only by

the laws of the land.” 1 William Blackstone, Commentaries

on the Laws of England *123-24, *125-29 (1765).

Consistent with the libertarian premises of Lockean social

contract theory and Blackstonian common law, a premise of

the Constitution was that We the People retained our

traditional liberties, and the burden was on the government to

justify any regulation thereof.° The same ideas applied to the

states.’ Before the Civil War, judges ruled that state common

law or constitutional police powers justified “reasonable

regulations as [legislators] may judge necessary to protect

public rights, and to impose no larger restraints upon the use

and enjoyment of private property, than are in their judgment

strictly necessary to preserve and protect the rights of

others.”* In Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.

Pa. 1823) (No. 3230), Justice Washington construed Article

° The Ninth Amendment explicitly recognizes unenumerated rights,

and that was the intent of its Framers. See Randy Barnett, The Rights

Retained by the People: The History and Meaning of the Ninth Amend-

ment (1989); see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000);

County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998).

’ See William Nelson, Americanization of the Common Law: The

Impact of Legal Change in Massachusetts Society, 1760-1830, at 89-110

(1975) (shift in regulatory emphasis in Massachusetts from “enforcer and

guardian of Christian society” to “preserver of individual liberty” after the

Revolution).

* Commonwealth v. Alger, 61 Mass. 53, 192 (1853). For decisions

striking down state laws for interfering with personal or property rights,

see Wynehammer v. People, 13 N.Y. 378 (1856) (relying on Blackstone);

Sears v. Cottrell, 5 Mich. 251, 253 (1858).

[V’s Privileges and Immunities Clause « protect rights

“which are, in their nature, fundamental; which belong, of

right, to the citizens of all free governments.” /d. at 551.

When the Framers of the Fourteenth Amendment borrowed

the due process and privileges and immunities language to

frame rights in Section |, they intended to protect funda-

mental liberties (including those in Blackstone and the

Declaration) against state intrusion.’ In Union Pacific R. v.

Botsford, 141 U.S. 250 (1891), this Court recognized bodily

integrity as a species of constitutionally-protected liberty.

Accord, Planned Parenthood v. Casey, 505 U.S. 833, 849

(1992) (joint opinion); Cruzan v. Missouri Dep't of Health,

497 U.S. 261, 287 (1990) (O’Connor, J., concurring). A

second line of cases recognized the idea of physical

inaccessibility for the home: the state is barred (unless it has

good cause) from invading “the sanctities of a man’s home

and the privacies of life.”"" Accord, Kyllo v. United States,

533 U.S. 27, 37 (2001) (in the home, “all details are intimate

details, because the entire area is held safe from prying

government eyes”). A third line of cases found that liberty

includes “the right of the individual to contract, to engage in

any of the common occupations of life, to acquire useful

knowledge, to marry, to establish a home and bring up

children.” Meyer v. Nebraska. 262 U.S. 390, 399 (1923).

The joint opinion in Casey articulated this interest as a

“liberty relating to intimate relationships.” 505 U.S. at 857;

accord, Roberts v. United States Jaycees, 468 U.S. 609,

* See Michael Kent Curtis, No State Shall Abridge: The Fourteenth

Amendment and the Bill of Rights 73-81 (1986); Robert Reinstein,

Completing the Constitution: The Declaration of Independence, Bill of

Rights and Fourteenth Amendment, 66 Temple L. Rev. 361 (1993).

"© Boyd v. United States, 116 U.S. 616, 630 (1886) (Fourth Amend-

ment); see Thomas Cooley, A Treatise on the Constitutional Limitations

Which Rest Upon the Legislative Power of the States of the American

Union 299-300 (1868) (same idea as a matter of due process).

617-18 (1984) (“choices to enter into and maintain certain

intimate human relations” are fundamental to liberty and “our

constitutional scheme”).

In Griswold v. Connecticut, 381 U.S. 479 (1965), this

Court invalidated a state law criminalizing the use of

contraceptives by married couples in the privacy of their

homes. Griswold illustrates the various dimensions of liberty

protected under the Court’s precedents: State conformity

requirements are most questionable when they interfere with

people’s control of their own bodies, disrupt personal rela-

tionships, and intrude into the innermost sanctum of the

home, the bedroom. The Court relied on Griswold to over-

turn a conviction for viewing obscene materials in the

confines of one’s own home in Stanley v. Georgia, 394 U.S.

557 (1969). The Court expanded Griswold’s right to con-

traceptives for unmarried persons in Eisenstadt v. Baird, 405

U.S. 438 (1972), and for unmarried minors in Carey v.

Population Servs. Int'l, 431 U.S. 678 (1977); see id. at 711

(Powell, J., concurring) (describing the right as “the

constitutionally protected privacy in decisions relating to

sexual relations”). In Moore v. City of East Cleveland, 431

U.S. 494 (1976), the Court struck down an ordinance making

it a crime for unrelated people to live together.

In light of these precedents applying the liberty principle,

some state courts ruled that consensual sodomy laws violate

the Due Process Clause. E.g., People v. Onofre, 415 N.E.2d

947 (N.Y. 1980), cert. denied, 451 U.S. 987 (1981). In

Bowers v. Hardwick, 478 U.S. 186 (1986), however, this

Court found no inconsistency between such laws and the Due

Process Clause. Hardwick did not resolve issues raised under

the Equal Protection or Privileges or Immunities Clauses of

the Fourteenth Amendment. /d. at 201. This case requires

the Court to reconsider this matter in light of the Fourteenth

Amendment’s core principles and a more sophisticated

history of sodomy laws than the Court has seen in pre-

vious Cases.

Il. HISTORY: SODOMY STATUTES HAVE HIS-

TORICALLY FOCUSED ON PREDATORY AND

PUBLIC ACTIVITIES; CONSENSUAL “HOMO-

SEXUAL” ACTIVITIES BECAME THEIR

FOCUS ONLY IN THE MID-TWENTIETH

CENTURY.

Most accounts urging this Court to revisit Hardwick focus

on the ways that American public and constitutional norms

have evolved. Our focus is on how much sodomy policy, not

constitutional principle, has changed—from state regu-

lation of public or coercive sexuality in the nineteenth century

to state campaigns to harass and stigmatize gay people.

Although not originally inconsistent with Fourteenth Amend-

ment principles, sodomy law’s twentieth century intrusion

into the private lives and homes of gay people is a regulatory

expansion that violates the Constitution.

A. Nineteenth Century Sodomy Laws

In 1868, most state penal codes included the “crime

against nature, committed with mankind or with beast.” See

Appendix 1. Yet sodomy laws as they were then understood

and applied were largely consistent with the principles of the

Fourteenth Amendment. To be sure, there were potential rule

of law problems with such laws, because they did not define

precisely what conduct was a “crime against nature,” but the

statutory terms had well-established common law meanings

which supplied the necessary determinacy. Cf. Wainwright v.

Stone, 414 U.S. 21 (1973). American courts and commen-

tators followed the English decisions defining the crime as

involving penetration by a male penis inside the rectum of an

animal, a woman or girl, or another man or a boy.'' Thus,

oral sex was not a crime in any American state in 1868, nor

'' 2 Joseph Chitty, A Practical Treatise on Criminal Law *49 (1847);

Robert Desty, A Compendium of American Criminal Law 143 (1887);

John May, The Law of Crimes § 210, at 223 (1881).

did any sodomy law before the twentieth century focus on

“homosexual sodomy.” Likewise, sex between two women

was not sodomy, but anal sex between a man and a woman

was sodomy.'? Indeed, the common law recognized sodomy

as a crime that could be committed by husband and wife.

E.g., Tenn. Comp. Laws part IV, tit. I, ch. 8, § 4843 (1873)

(annotation).

If regulation of “homosexual conduct” was not the object

of nineteenth century sodomy laws, what was their purpose?

Based upon their statutory context, it can be deduced that

sodomy laws served two kinds of admissible purposes.'* One

was protection of the community against public indecency.

In state codes, sodomy laws were typically listed with crimes

against “public morals and decency”—including bigamy and

“open and notorious adultery”; printing or distributing

obscene literature; public indecency; “lewd and vicious

cohabitation” or fornication; blasphemy or cursing in public

places; and incest.'° Except for incest, the other crimes

"2 See William Eskridge, Jr., Gaylaw: Challenging the Apartheid of the

Closet 19-52 (1999) (tracing the origins of “homosexuality” as a legal

concept in the twentieth century).

'’ Although state laws referred to the crime committed with “mankind”

or “man,” those terms were universally construed to include unnatural

behavior of men with women under authority of Regina v. Wiseman, 92

Eng. Rep. 774 (K.B. 1716). See 2 Joel Prentiss Bishop, Commentaries on

the Criminal Law § 1028, at 731 (2d ed. 1859); 2 Chitty, supra note 11, at

47-50; Desty, supra note 11, at 143; May, supra note 11, § 210, at 223. It

is possible, but not likely, that New Hampshire’s law was limited to male-

male conduct. See Appendix |.

'* Sodomy laws also served purposes that would not be admissible

under the Constitution, namely, the instantiation of religious norms

through the law, see Edwards v. Aguillard, 482 U.S. 578 (1987), and state

insistence on rigid gender roles. See Craig v. Boren, 429 U.S. 190 (1976).

'S See Ronald Hamowy, Preventive Medicine and the Criminalization

of Sexual Immorality in Nineteenth Century America, in Assessing the

Criminal 39-41 (Randy Barnett & John Hagel III eds. 1977).

involved actions outside the home that could be expected to

roil the community. As we shall see (below), proof require-

ments for sodomy and incest made it unlikely that any of

those crimes would be prosecuted if they were consensual

within the home.

A second, and in practice the primary, purpose of

nineteenth century sodomy laws was protection of children,

women, and weaker men against sexual assault. Many codes

listed sodomy as one of the “crimes against the person” —

rape, carnal knowledge of a girl, assault, mayhem.'® This

suggests that sodomy laws were understood as filling in a

regulatory gap as regards nonconsensual sexual activity; an .

adult male forcing himself anally on a woman, girl, boy, or

animal could be prosecuted only under sodomy laws in 1868.

All of the model sodomy indictments reproduced in 2 Chitty,

supra note 11, at 48-50, involved allegations of predation by

an older man against a minor girl or boy. Indeed, a man

could not be convicted of sodomy based upon the testimony

of a sexual partner who was his “accomplice”; conversely, the

partner’s testimony was admissible if she or he were an un-

willing participant or a minor (incapable of giving consent).'’

This well-established proof requirement created an immunity

for sodomy within the home between consenting adults.

Appendix 2, listing the reported sodomy decisions from the

nineteenth century, demonstrates that sodomy defendants

were typically accused of nonconsensual activity. Elimi-

nating the cases where the sex (or indeed the species) of the

participants is not disclosed, the reported nineteenth century

'° Arkansas, California, Georgia, Illinois, Kentucky, Louisiana, New

York, and North Carolina most clearly fit the pattern in the text, but other

states explicitly linked proof requirements for sodomy and rape. E.g., Ill.

Gen. Laws ch. 30, div. V, § 38; Or. Gen. Laws ch. XLVIII, § 216.

'’ See Francis Wharton, Treatise on the Criminal Law of the United

States 443 (2d ed. 1852); | Francis Wharton, A Treatise on Criminal Law ©

512 (8th ed. 1880).

cases fall into three roughly equal groups: (1) sex between

adult men and animals; (2) sex between adult men and minors

(girls as well as boys); and (3) sex between two adults, almost

always involving force or potential status coercion (i.e., high-

status man penetrates supervisee or ward). As a matter of

both law and practice, consenting adults (male and female or

male and male) engaged in sodomy within their own home

were immune from prosecution, because there could be no

witness to the crime. In Medis v. State, 11 S.W. 112 (Tex. Cr.

App. 1889), for example, witnesses came upon three men

entangled in one another but could not testify that the penis of

defendants had penetrated the “victim,” and so the court

overturned the convictions for lack of evidence. This was the

state of affairs in 1868, when the Fourteenth Amendment was

adopted: No one would have been on notice that laws

making the “crime against nature” illegal would have covered

consensual activities between two adults in the sanctity of

their home.

B. Expansion of Sodomy Laws, 1879-1969

In 1880, sixty-three prisoners were incarcerated for sod-

omy in the United States, almost all of them people of color

and immigrants.'* By 1921, hundreds of men were being

arrested and imprisoned for the crime each year. This

increase was made possible by the establishment of pro-

fessional police forces in most American cities after the Civil

War and by the expansion of sodomy laws beyond their

traditional coverage. Whereas no state had defined sodomy

to include oral sex before 1879, no fewer than thirty-one had

done so by 1923."

'® See Jonathan Ned Katz, Gay American History 57 (1976) (reprinting

Census report).

'? William Eskridge, Jr., Law and the Construction of the Closet:

American Regulation of Same-Sex Intimacy, 1880-1946, 82 lowa L. Rev.

1007, 1016-32 (1997).

State and municipal governments were responding to

several concerns.’ The main one was that city-dwellers were

alarmed at public displays of indecency and sexual

solicitation on their streets and in public restrooms. Thus,

cities sought to drive male “fairies” from public spaces,

usually through the same vice units that policed female

prostitution. Another concern was with the sexuality of

children. Although states adopted new laws to protect chil-

dren against sexual molestation or predation, they also

deployed sodomy laws to prosecute sex between men and

children; almost half of the reported sodomy cases between

1896 and 1925 involved sex with minors. A final concern

was rooted in moral eugenics. Many Americans fervently

believed that “degenerate” classes of people were a social

disease threatening the body politic. They urged the

exclusion, suppression, incarceration, and later the castration

and sterilization of “degenerate” classes of people. Moralist

Anthony Comstock wrote to one “androgyne” that such

“inverts are not fit to live with the rest of mankind. They

ought to have branded on their foreheads the word ‘Unclean,’

and as the lepers of old, they ought to cry ‘Unclean!

Unclean!’ as they go about.” Earl Lind, Autobiography of an

Androgyne 24-25 (1918). Consistent with these new con-

cerns, a quarter of the published sodomy decisions between

1880 and 1925 involved apparently consensual activities

between men, but usually in quasi-public places such as

restrooms, parks, and bars.

“Homosexuals” became the scapegoats for a more brutal

campaign of repression during the McCarthy era. State and

national governments invested significant resources in

episodic witch hunts to identify “homosexuals” so that they

could be arrested and imprisoned, deported or debarred from

entering the country, discharged from public employment,

” See Eskridge, Gaylaw, supra note 12, at 19-49, 374-75.

expelled from the armed services, and exposed by the state as

“sex perverts” to their families, employers, and com-

munities.”' Private oral and anal sex between consenting

adults was lumped together with child molestation as a basis

for widespread enforcement of sodomy laws against gay and

bisexual men. For the first time in American history, large

numbers of Americans were incarcerated for long periods of

time because they engaged in oral or anal sex with consenting

adults. Some were subjected to medical experimentation and

torture as well.”

The reported cases ballooned. Although most reported

convictions were still for sodomy with minors or forcible

sodomy, an alarming number were for sodomy between

consenting adults in private places. In one case, vice squad

officers followed an interracial male couple back to their

hotel room. People v. Earl, 31 Cal. Rptr. 76 (Dist. Ct. App.

1963). Peeking through a crack in the door, one officer

witnessed the men embracing in bed. Assisted by a hand-

hold from his colleague, the other officer looked through the

glass transom above the door and observed the men engage in

felonious oral sex. The officers broke into the room and

arrested the couple. The defendants were convicted of oral

copulation and certified as sexual psychopaths. As such, they

were committed for indefinite sentences at Atascadero State

Hospital. This was no isolated occurrence; other examples of

2" See John D’ Emilio, Sexual Politics, Sexual Communities: The Mak-

ing of a Homosexual Minority in the United States, 1940-1970 (1983),

Lillian Faderman, Odd Girls and Twilight Lovers: A History of Lesbian

Life in Twentieth-Century America (1991); William Eskridge, Jr., Privacy

Jurisprudence and the Apartheid of the Closet, 1946-1961, 24 Fla. St.

U.L. Rev. 703, 708-66 (1997).

2 See Eskridge, Gaylaw, supra note 12, at 354-55 (29 state laws

requiring hospitalization of “sexual psychopaths”); Katz, supra note 18

(application of such laws to incarcerate and engage in medical experi-

mentation on gay people).

a ———————

police enforcement of state sodomy laws not only intruded

into private spaces, but also entrapped gay men into

the crime.”

The unprecedented application of sodomy laws to private

consensual conduct generated immediate criticism from

medical and legal authorities. The American Law Institute

(“ALI”) joined expert commissions in the United Kingdom,

New Jersey, New York, Illinois, California, and other

jurisdictions to urge the decriminalization of private sodomy

between consenting adults.* Their arguments paralleled the

principles undergirding the Fourteenth Amendment. The

central point of the ALI and expert commission reports was

that there was no secular harm from sodomy in private places

between consenting adults—and therefore the state should

abandon its innovative application of the old laws as

inconsistent with the liberty principle. Moreover, because

consensual sodomy was so widespread, the episodic state

enforcement was at war with the legality and equality

principles: The people who went to jail for the crime or were

blackmailed tended to be the most vulnerable in society—

people of color, closeted “homosexuals,” and working class

people. Based on these arguments, New York reduced

consensual sodomy to a misdemeanor in 1950 N.Y. Laws ch.

525, and Illinois decriminalized it in 1961 Ill. Laws 2044.

* E.g., Dale Jennings, To Be Accused Is To Be Guilty, One, Inc., Jan.

1953, at 11-12 (first-person account of police entrapment of “suspected

homosexual”); see Eskridge, /946-1961, supra note 21, at 717-33 (de-

tailed account of police practices designed to flush out “homosexuals”

in Florida).

* See Eskridge, /946-1961, supra note 21, at 773-83 (detailed exam-

ination of the reports discussed in text). In drafting its Model Penal Code,

the ALI voted in 1955 to decriminalize consensual sodomy, because such

laws (1) undermined respect for the law by penalizing conduct many

people engaged in, (2) regulated private conduct not harmful to others,

and (3) were arbitrarily enforced and led to blackmail. ALI, Model Penal

Code, Commentary 277-80 (Tent. Draft No. 4, 1955).

C. Sodomy Reform and Reformulation, 1969-2002

After the Stonewall riots of 1969, gay people engaged in

political activism to protect their lives against police intrusion

and to remove legal discriminations against them. They

found allies in the legal profession, including the ABA, and

the medical profession, which in 1973 resolved that homo-

sexuality is not a mental or psychological defect and therefore

was no basis for unequal treatment. Popular support for

consensual sodomy laws was also waning. Between 1969

and 1976, eighteen states decriminalized consensual sodomy,

consistent with the ALI’s Model Penal Code (“MPC”).

Although others followed, the 1970s saw a backlash:

Arguing that sodomy reform would encourage “unnatural”

conduct or “promote” homosexuality, family values activists

opposed decriminalization. For example, after Idaho adopted

the MPC, legislators accused of “promoting” homosexuality

reinstated the outdated criminal code, 1972 Idaho Laws 844, -

966-67. According to one senator, “[t]he code was repealed

solely as the result of an emotional hysteria generated by

some very right-wing church and political groups.” See

Idaho Repeals New Consenting Adults Code, The Advocate,

May 10, 1972, at 3. In contrast, when Kansas decrim-

inalized consensual sodomy with someone of the opposite

sex, it left same-sex consensual sodomy a misdemeanor.

1969 Kan. Laws ch. 180, § 21-3505. Texas’s Homosexual

Conduct Law followed the Kansas model, as did new laws in

Montana (1973), Kentucky (1974), Missouri (1977), Nevada

(1977), and Tennessee (1989). Like Idaho in 1971, Arkansas

in 1975 adopted the MPC, which stimulated protests from

some religious groups that sodomy decriminalization would

> The Moral Majority persuaded the House to veto the District of

Columbia’s sodomy repeal in 1981, based upon the same arguments.

E.g., 127 Cong. Rec. 22,749 (Rep. Bliley), 22,762-63 (Rep. Crane)

(1981).

open the state to “homosexuals.” Unlike Idaho, Arkansas

responded by recriminalizing only same-sex consensual sod-

omy. 1977 Ark. Acts 2118, 2118-19. The sponsor bragged

that this move was “aimed at weirdos and queers who live in

a fairyland world and are trying to wre[c]k family life.”

Petition for Certiorari, at 5, Limon v. Kansas (No. 02-583).

Two states reached essentially the same legal rule through

judicial opinions construing their consensual sodomy laws to

be inapplicable to different-sex sodomy. Post v. State, 715

P.2d 1105 (Okla. Crim. App. 1986); Schochet v. State, 580

A.2d 176 (Md. 1990). Reformulating consensual sodomy

laws to apply only to same-sex activities makes the existence

of consensual sodomy laws more acceptable to straight peo-

ple—but without addressing the arbitrary enforcement and

libertarian problems with such laws and at a tremendous price

of a formal discrimination against gay people.

This Court’s opinion in Hardwick upheld a general sodomy

law against due process attack but contained language

focusing on “homosexual sodomy.” That language was

particularly unfortunate, as it was delivered at a point when

judges in all parts of the country were coming to accept the

propositions that consensual sodomy laws violate the liberty

principle, and that same-sex sodomy laws violate the equality

principle. After 1989, state court judges have decisively

rejected sodomy laws that discriminate on the basis of sex or

sexual orientation, such as the Texas law in the instant appeal.

Soon after Hardwick, the Kentucky Supreme Court ruled in

Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992), that

its same-sex sodomy law violated the principles of legality,

equality, and liberty of its state constitution. Nevada repealed

its same-sex sodomy law in 1993, and the courts in other

states have decriminalized same-sex sodomy (page 26 infra).

States that still openly discriminate are Texas, Kansas, part of

Missouri, and (by judicial construction) Oklahoma.

Ill. DOCTRINE: TEXAS’S HOMOSEXUAL CON-

DUCT LAW VIOLATES THE DUE PROCESS,

EQUAL PROTECTION, AND PRIVILEGES OR

IMMUNITIES CLAUSES OF THE FOUR-

TEENTH AMENDMENT.

The evolution of state sodomy laws has taken them far

away from the principle» of the Fourteenth Amendment. The

Texas statute at issue in this case may satisfy the notice

requirement of the legality principle, but it does so at the cost

of seriously violating the equality and liberty principles. The

Homosexual Conduct Law is inconsistent with the Equal

Protection Clause, as construed in Evans. The Court should

also find the statute, and others regulating consensual sodomy

without regard to the sex of the participants, inconsistent with

the Due Process Clause, as construed in this Court’s

precedents, and with the Privileges or Immunities Clause, as

understood by its Framers.

A. The Texas Homosexual Conduct Law Violates

the Equal Protection Clause, as Construed in

Romer v. Evans, For It Targets Gay People as

an Outlaw Class Because of Antigay Animus.

Texas concedes that its law makes it a crime for lesbian

(female-female) and gay (male-male) couples to engage in the

“same act[s]” that straight (male-female) couples can engage

in with impunity. Br. in Opp. at 18. Unless rationally justi-

fied, this discriminatory treatment violates the equality idea

that “the democratic majority [must] accept for themselves

and their loved ones what they impose on you and me.”

Cruzan, 497 U.S. at 300 (Scalia, J., concurring); accord, The

Federalist No. 78, at 470 (Hamilton) (Clinton Rossiter ed.,

1961). If the democratic majority finds consensual sodomy

distasteful, the Equal Protection Clause requires that they

impose penalties for it on themselves as well as upon

minorities. Texas has not done that, and for this reason alone

the law is invalid.

Evans supports this result. Indeed, the Homosexual

Conduct Law seems almost tailor-made to fit the facts (and

therefore the holding) of Evans. Like the Colorado initiative

invalidated in Evans, the Texas law in this case singles out

gay people for special disability.”° As in Evans, the law’s

plain meaning and the context of its enactment suggest that it

was motivated by antigay prejudice. If the statute’s caption

(singling out just “Homosexual Conduct” for criminality) is

not proof enough, it is confirmed by the context of the law:

In the early 1970s, states like Texas, Idaho, and Arkansas

realized that consensual sodomy was so widespread that it

made sense to decriminalize it, but such proposals were

subject to the charge that they would tolerate or even promote

“homosexuality.” Idaho responded by reinstating its old law,

but the more politically expedient course was that taken by

Arkansas and Texas, to decriminalize only “heterosexual

sodomy.” The Arkansas measure targeted “weirdos and

queers,” and there is no reason to believe that the same

motivations were not at work in Texas.

The animus evident on the face of the statute is reinforced

by two other features of the Homosexual Conduct Law.

“First, the [law] has the peculiar property of imposing a broad

and undifferentiated disability on a single named group.”

”° Texas maintains that its statute does not discriminate on the basis of

sexual orientation, for it would apply to “heterosexuals.” Br. in Opp. at

12. To deny that a statute whose caption holds out its coverage as limited

to “Homosexual Conduct” is aimed at “homosexuals” is remarkable.

“Homosexual sodomy” is “the behavior that defines the class.” Padula v.

Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); accord, Beller v. Middendorf,

632 F.2d 788 (9th Cir. 1980). Under Yick Wo v. Hopkins, 118 U.S. 356,

373-74 (1886), a statute whose overwhelming application is against one

class of people is a statute discriminating against that class (gay people)

and on the basis of its identifying trait (homosexuality).

Evans, 517 U.S. at 632.7’ In this regard, the Texas law is

worse than the Colorado one. Under the former, gay people

can be arrested, jailed (as Lawrence and Garner were for 24

hours), and convicted of a criminal offense. Because most

openly gay Texans can be presumed to commit sodomy with

persons of the same sex, the Homosexual Conduct Law

brands them as presumptive outlaws. Invoking this law,

Texas courts hold that calling someone a “homosexual” is

slanderous per se; the accusation of criminality is enough to

establish damage. See Head v. Newton, 596 S.W.2d 209, 210

(Tex. App. 1980). The presumptive criminal activities of gay

people have civil consequences, like those found troubling in

Evans. Texas and nearby states have invoked the outlaw

status of gay people to exclude them from hate crime and

employment anti-discrimination laws, see Pet. at 14-16; to

discriminate against them in hiring and promotion decisions

for state or local employment, e.g., Childers v. Dallas Police

Dep’t, 513 F. Supp. 134 (N.D. Tex. 1981); to deny them

custody of or even visitation with their own biological

children, e.g., Weigand v. Houghton, 730 So.2d 581 (Miss.

1999); and to introduce antigay messages in sex or AIDS

education programs, e.g., Tex. Health & Safety Code

§ 85.007(b)(2). See also Alston v. State, 1991 Tex. App.

Lexis 2366, *5 n.3 (Sept. 25, 1991) (promiscuity of a minor is

a defense to a charge of heterosexual sex with a minor, but

not of homosexual sex with a minor).

“Second, [the law’s] sheer breadth is so discontinuous with

the reasons offered for it that the [law] seems inexplicable by

anything but animus against the class that it affects.” Evans,

517 U.S. at 632. Texas justifies the law as “protection of

public morality.” Br. in Opp. at 14-16. If the state is trying

to protect “public morality,” isn’t it sufficient to criminalize

27 And this is an “exceptional . . . form of legislation.” Evans, 517 U.S.

at 632. No state adopted a “Homosexual Conduct” sodomy law until

1969.

“Public Lewdness,” Tex. Penal Code § 21.07, and “Indecent

Exposure,” id. § 21.08? Why is it necessary to criminalize

private conduct that no one will ever see, unless the goal is to

stigmatize gay people as outlaws? The Homosexual Conduct

Law is excessive. It is also highly underinclusive: Most

sodomy that goes on in Texas is between men and women,

the class excluded from the criminal law. This is inex-

plicable, unless its aim is to stigmatize gay people. Indeed,

this Court in Evans rejected a more cogent public morality

argument. Colorado maintained that its initiative was justi-

fied as a signal by tolerant Coloradans that, although

homosexual conduct was no crime in the state, they did not

consider homosexuality a good thing either. Pet. Reply Br. at

15 & nn.24-25, Evans (No. 94-1039) ** But even this tolerant

public morality did not save Colorado’s initiative, because it

“classifie[d] homosexuals not to further a proper legislative

end but to make them unequal to everyone else.” Evans, 517

U.S. at 635.

The state’s other justifications are worse. Texas maintains

that “[hjomosexual conduct cannot lead to a biological repro-

duction, or occur within or lead to a martial relationship.” Br.

in Opp. at 18. This underscores the underinclusiveness of the

law, for “heterosexual sodomy” cannot lead to reproduction

either. And “homosexual sodomy” is frequently the basis for

longterm committed gay relationships and families. See note

30 infra. The state’s final point, that its statute is “consistent

with the traditional and historical view that homosexual

activity is malum in se,” Br. in Opp. at 18, is false. As Part

II.A of this brief shows, traditional condemnations of sodomy

in nineteenth century America did not focus on “homosexual

sodomy” and, indeed, did not focus on sodomy between

** See also Brief of Amicus Curiae Concerned Women for America,

Inc. at 8-21, Evans (No. 94-1039) (making the same “Public Morality”

argument Texas is making in this case).

consenting adults within the home. Far from saving Texas’s

Homosexual Sodomy Law, tradition condemns it as a

pernicious novelty.

B. The Texas Homosexual Conduct Law Violates

the Due Process Clause, as It Criminalizes Gay

People’s Most Private Activities; Bowers v.

Hardwick Should Be Overruled.

Because it authorizes police intrusion into the home and

into the intimate lives of gay people, Texas’s Homosexual

Conduct Law is also inconsistent with the liberty principle of

the Fourteenth Amendment. Although at odds with Hard-

wick, this conclusion is supported by this Court’s precedents

interpreting the privacy features of the Due Process Clause

(Part 1.C). This Court has afforded strongest protection in

cases where people’s personal security, interpersonal

relations, and security within the home are most implicated,

specifically including (1) sexual relations within marriage

(Griswold), (2) sexual relations posing risks of pregnancy

outside of marriage (Eisenstadt, Carey); (3) control of one’s

own body (Botsford, Cruzan); (4) home use of obscene mate-

rials (Stanley); and (5) nonnuclear family living arrangements

(Moore). This Court would not afford protection in cases

where those fundamental privacy interests were not at stake,

including (6) adultery; (7) incest; (8) forcible sex between

adults; and (9) sex between an adult and a minor. This array

of the Court’s precedents reflects the Framers’ liberty

principle: People should be left alone by the state unless their

conduct has third-party effects unrelated to “nosy

preferences” (my preference to make you just like me).

Under that principle, John Lawrence and Tyron Garner’s

behavior would seem protected because they were doing no

one any harm and were acting within the confines of

Lawrence’s home. In the foregoing array, their conduct fell

closest to categories 2-4, as it involved their chosen deploy-

ment of their own bodies (Botsford) within the privacy of

their own home (Stanley), even if outside the context of

procreative marriage (Eisenstadt). This is the view of consti-

tutional privacy taken in the MPC and by the large majority

of state court judges in the last seventeen years. Contrast

Lawrence and Garner’s secluded conduct, which harmed no

one, with that outside the right of privacy (categories 6-9), for

these have clearer third-party effects: adultery’s violation of

marriage vows to a partner; disruption of the family entailed

in adultery and incest; and the consent problems with

forcible sex and sex between adults and minors.

Hardwick limited the privacy precedents to a narrower

principle—a “right to decide whether or not to beget or bear a

child” (categories 1-2). This was an incomplete reading of

the precedents, for it provided no account of Botsford and

other cases assuring a right of bodily integrity outside of

pregnancy (such as Cruzan). Moreover, this Court had

extended the right of sexual privacy beyond this limit in

Stanley (category 4).° Hardwick’s characterization also

failed to account for Moore (category 5). Ultimately, the

opinion in Hardwick had no robust positive theory of this

Court’s privacy cases and relied upon a defensive theory: The

right of privacy should not be extended to “homosexual

sodomy,” which this Court felt had traditionally been regu-

lated in Anglo-American law and not been left to individual

decisionmaking, just like adultery and incest (categories 6-7).

According to the Court’s opinion, 478 U.S. at 192-94 & nn.

5-7, what Hardwick did—oral sex with a consenting adult in

his bedroom—was illegal in thirty-two of the thirty-seven

states when the Fourteenth Amendment was ratified.

”* Hardwick dismissed Stanley as a First Amendment case, but Stanley

presented itself in privacy terms and relied critically on Griswold and

Fourth Amendment privacy cases for the proposition that “a State has no

business telling a man, sitting alone in his own house, what books he may

read or what films he may watch.” Stanley, 394 U.S. at 565.

The Court was misinformed. Part ILA of this brief

demonstrates that no state in 1868 made oral sex a crime. No

state made sex between women a crime. No state code

focused only on sex between men. No law and no court deci-

sion and no legal treatise invoked the concept of “homosexual

sodomy,” a term that did not exist in 1868. No reported case

_ in the United States between 1789 and 1868 clearly applied

sodomy laws to conduct within the bedroom between con-

senting adults. Hardwick was correct to examine our

American traditions of liberty, but was incomplete in its

understanding of that history. The fundamental freedoms

Americans enjoy have included choices involving the

deployment of the body, intimate relationships, and the home.

These are freedoms gay Americans enjoyed until the anti-

homosexual repression of 1945-1969—an aberration in our

history of liberty that this Court should now close forever.

Hardwick also found that the respondent had demonstrated

“{njo connection between family, marriage, or procreation, on

the one hand, and homosexual activity, on the other.” 478

U.S. at 191. Today it is clear that gay people form intimate

relationships and households that (like different-sex mar-

riages) are founded on a love that is sexual, self-giving, and

nurturing.’ The Due Process Clause protects families against

state interference, including nontraditional families. E.g.,

Troxel, 530 U.S. at 98 (Kennedy, J., dissenting); Moore, 431

U.S. at 506 (plurality opinion); cf. McLaughlin v. Florida,

379 U.S. 184, 196 (1963) (invalidating law prohibiting people

See Philip Blumstein & Pepper Schwartz, American Couples:

Money, Work, Sex (1983); Susan Johnson, Staying Power: Long Term

Lesbian Couples (1990), Lawrence Kurdek, Relationship Outcomes and

Their Predictors: Longitudinal Evidence from Heterosexual Married, Gay

Cohabiting, and Lesbian Cohabiting Coupies, 60 J. Marr. & Fam. 553

(1998). See also American Academy of Pediatrics, Technical Report:

or Second-Parent Adoptions by Same-Sex Parents, \09 Pedia-

trics 341 (Feb. 2002) (no fewer than one million children have one or two

gay parents).

from cohabiting with someone of a different race). Just as it

would be constitutionally unthinkable for the state to arrest

straight couples practicing contraception in their marital or

relational beds, so it must now be recognized as consti-

tutionally impermissible for the state to arrest lesbian and gay

couples engaging in sodomy in their relational beds.

Commentators from different perspectives have considered

Hardwick both an incorrect and unprincipled precedent.’

There has been no Supreme Court decision upholding a law

that has been subjected to such immediate and persistent

criticism as Hardwick.” The dissenting Justices in Evans

insisted that this recent precedent cannot be reconciled with

Hardwick. 517 U.S. at 640-42 (Scalia, J., dissenting). They

were correct. Evans’ holding, that the desire “to make [gay

people} unequal to everyone else” is not a legitimate state

interest that can satisfy rational basis review under the Equal

Protection Clause, id. at 636 (majority opinion), is incon-

sistent with Hardwick’s holding, that the “belief of a majority

of the electorate in Georgia that homosexual sodomy is

immoral and unacceptable” is a legitimate state interest that

can satisfy rational basis review under the Due Process

Clause. Hardwick, 478 U.S. at 196. One of this Court’s pre-

cedents must yield, and the Fourteenth Amendment’s original

principles suggest the answer: Hardwick should be overruled.

Stare decisis cannot protect a precedent inconsistent with

other precedents of this Court, but even if there were not a

conflict between Hardwick and Evans the former would be

°'For a small sample of the scholarship criticizing Hardwick, see, e.g.,

Charles Fried, Order and Law—Arguing the Reagan Revolution 81-84

(1991); Richard Posner, Sex and Reason 341-50 (1992); Anne Goldstein,

History, Homosexuality and Political Values: Searching for the Hidden

Determinants of Bowers v. Hardwick, 97 Yale L.J. 1073 (1988).

* This Court’s decisions in Plessy and Korematsu have been widely

criticized, but they were not subject to the enormous amount of immediate

criticism as Hardwick.

vulnerable to reconsideration. This Court has frequently been

willing to reconsider its constitutional precedents, Payne v.

Tennessee, 501 U.S. 808, 828-30 n.1 (1991) (collecting

cases), especially when they have subsequently been called

into serious question. /d. at 828-30. As a matter of prudence,

the Court has also considered whether the precedent’s centra!

rule “could be removed without serious inequity to those who

have relied upon it or significant damage to the stability of

the society,” and “whether the law’s growth in the intervening

years has left the precedent’s central rule a doctrinal

anachronism discounted by society.” Casey, 505 U.S. at 855

(joint opinion). Not only do these additional considerations

fail to save Hardwick, but they further undermine it.

State courts have been unimpressed with Hardwick's

expansive view of the government’s police power. Typical is

Powell v. State, 510 S.E.2d 18 (Ga. 1998), which struck down

under the state constitution’s protection of liberty the con-

sensual sodomy law that Hardwick had upheld. “We cannot

think of any other activity that reasonable persons would rank

as more private and more deserving of protection from

governmental interference than unforced, private, adult sexual

activity.” Jd. at 24. Examining American traditions of liberty

as to personal security, the home, and intimate relationships,

other state courts have agreed. See Jegley v. Picado, 80

S.W.3d 332 (Ark. 2002); Commonwealth v. Wasson, 842

S.W.2d 487 (Ky. 1992); Gryczan v. State, 942 P.2d 112

(Mont. 1997); Campbell v. Sundquist, 926 S.W.2d 250,

261-62 (Tenn. App. 1996) (appeal denied); State v. Cogshill,

997 S.W.2d 534 (Mo. App. 1999) (no appeal taken); Williams

v. State, 1998 Extra Lexis 260 (Balt. Cir. Ct. 1999) (no appeal

taken). Only the courts in Kansas, Louisiana, and Texas have

followed Hardwick.

Majority opinions in this Court have shunned Hardwick as

a pariah precedent. Evans, of course, ignored Hardwick. The

Chief Justice’s opinion in Washington v. Glucksberg,

§21 U.S. 702, 705-36 (1997), which rejected a general due

process right to die, failed even to cite Hardwick, even though

the opinion was applying a historical methodology refusing to

recognize a broad substantive due process right.” Courts all

over the world have refused to follow Hardwick and have

reasoned that fundamental principles of liberty and equality in

the modern state are inconsistent with criminalization of

private sodomy between consenting adults.** No one who is

a genuine student of our American traditions of liberty and

equality would mourn the passing of consensual sodomy

laws. The world has moved on to a more productive

deployment of the criminal sanction. This Court ought to do

the same. Hardwick should be overruled.

C. The Texas Homosexual Conduct Law Violates

the Privileges or Immunities Clause.

Hardwick did not address the constitutionality of

consensual sodomy laws under the Privileges or Immunities

Clause. Although this Court has not developed a robust

doctrine in this area, there is a surprisingly strong case for

applying the Privileges or Immunities Clause to protect

personal liberties. Recall from Part I.C that the Framers of

the Constitution of 1789 and the Bill of Rights were keenly

> Five Justices were open to a “constitutionally cognizable interest in

controlling the circumstances of his or her imminent death.” /d. at 736-38

(O’Connor, J.); see id. at 738-52 (Stevens, J.), 752-89 (Souter, J.), 789

(Ginsburg, J.), 789-92 (Breyer, J.).

* See, e.g., National Coalition for Gay & Lesbian Equality v. Minister

of Justice, 1999 (1) SA 6 (Const’! Ct. South Africa, Oct. 9, 1998) (South

Africa Constitution bars state from criminalizing consensual “sodomy’

and “unnatural acts”); Modinos v. Cyprus, \6 Eur. Hum. Rts. Rep. 485

(1993) (consensual sodomy laws are inconsistent with the rules of the

European Community); Norris v. Ireland, 13 Eur. Hum. Rts. Rep. 186

(1991) (same); Toonen v. Australia, U.N. Doc. CCPR/c/S0/D/488/1992

(Tasmania’s consensual sodomy law violated the privacy protections of

the Internaticnal Covenant on Civil and Political Rights, which the United

States has also ratified).

interested in limiting the powers of government: We the

People are sovereign; the state has only those powers We

have given it; and We have withheld from the state

“immunities” (those natural liberties the People retained) and

have acquired “privileges” (the rights society has provided in

lieu of natural rights). 1 Blackstone, Commentaries *129;

U.S. Const. IX Am. Justice Washington and, after him, many

of the anti-slavery theorists believed that Article IV's

Privileges and Immunities Clause protected those rights

“which are, in their nature, fundamental; which belong, of

right, to citizens of all free governments.” Corfield, 6 Fed.

Cas. at 551. Other theorists read Article [V more narrowly,

and Dred Scott confirmed their approach.*°

Whatever the status of anti-slavery jurisprudence before

the Civil War, it is today of legal significance because it was

the philosophy of the leading Republicans who sponsored the

Reconstruction Amendments.*° Almost all the Republicans ~

*5 A number of thoughtful scholars believe the abolitionist understand-

ing was more faithful to the Framers’ intent than Dred Scott was. E.g.,

Chester Antieau, Paul's Perverted Privileges or the True Meaning of the

Privileges and Immunities Clause of Article Four, 9 Wm. & Mary L.

Rev. | (1967); Michael Conant, Antimonopoly Tradition under the Ninth

and Fourteenth Amendments: Slaughter-House Cases Re-Examined,

31 Emory L.J. 785 (1982).

struction Amendments. See Jacobus tenBroek, Equal Under Law 196-97

(1965) (originally published as The Antislavery Origins of the Fourteenth

Amendment), Curtis, No State Shall Abridge, supra note 9, at 26-56; Dav-

id A.J. Richards, Conscience and the Constitution: History, Theory, and

the Law of the Reconstruction Amendments 217-32 (1993). Although

moderate and conservative Republicans, with less connection to the

abolition movement, were important to the Reconstruction Amendments,

the key ideas for the Reconstruction Amendments—natural rights to be

free from state invasions of liberties, rights of “national citizenship,” the

state’s obligation to provide equal protection of the law to all persons—

came from anti-slavery jurisprudence. E.g., Eric Foner, The Strange

Career of the Reconstruction Amendments, \08 Yale L.J. 2003, 2003-05

—

(including “moderates” like Bingham) disagreed with Dred

Scott root and branch, and most of them believed its narrow

interpretation of Article IV was wrong. E.g., Cong. Globe,

39th Cong., Ist Sess. 430 (Rep. Bingham), 475 (Sen.

Trumbull), 1833-36 (Rep. Lawrence) (1866); 38th Cong., Ist

Sess. 1202 (1864) (Rep. Wilson). Within this normative con-

text, the Privileges or Immunities Clause of the Fourteenth

Amendment was intended to expand upon Corfield and to

establish national rights of citizenship. This was the theme

of Representative Bingham’s presentation of his proposed

amendment to the House of Representatives, Cong. Globe,

39th Cong., Ist Sess. 2542 (1866); Senator Howard’s

introduction of the proposed amendment to the Senate, id. at

2765-66; and the few recorded ratification debates, Curtis, No

State Shall Abridge, supra note 9, at 145-51.

Precisely what those national rights of citizenship were to

be was a matter left somewhat open-ended, but the Framers

of the Fourteenth Amendment repeatedly invoked Black-

stone’s understanding of traditional liberties, privileges, and

immunities. E.g., Cong. Globe, 39th Cong., Ist Sess. 1118-

19 (Rep. Wilson), 1832-36 (Rep. Lawrence) (1866). As

demonstrated in Part I.C, Blackstone’s central theme was that

Englishmen enjoyed natural rights to deploy their bodies and

inhabit their properties, without state intrusion, so long as

they were not themselves intruding upon the natural rights of

third parties. These Blackstonian “immunities” would be

directly applicable to John Lawrence and Tyron Garner: The

state has no business intruding into Lawrence’s private

property and snooping into their private pursuit of happiness.

Unlike the earlier discussion in this part, this Court’s

precedents provide little guidance. The Slaughter-House

Cases, 83 U.S. 36, 75-80 (1873), gave an exceedingly narrow

(1999); Robert Kaczorowski, Revolutionary Constitutionalism in the

Era of the Civil War and Reconstruction, 61 NYU L. Rev. 863, 890.

940 (1986).

reading to the Privileges or Immunities Clause, essentially

limiting it to rights to petition the national government and to

travel and trade interstate. See Twining v. New Jersey, 211

U.S. 78, 97 (1908). After 1873, the Court was unresponsive

to Privileges or Immunities Clause arguments, and litigants

eventually stopped making them. To reverse the court below

on the basis of the Privileges or Immunities Clause would

require this Court to abrogate the Slaughter-House dicta.”’

That would be an appropriate course of action, not only

because that dicta are plainly contrary to the original meaning

of the Fourteenth Amendment, but also because they ignore

the rich connection among the Declaration of Independence

and the normative claims of the American Revolution, the

Founding era’s Constitution and Bill of Rights, and the

Reconstruction Amendments.**

CONCLUSION

For the foregoing reasons, amicus curiae Cato Institute

requests that this Court invalidate the Texas Homosexual

Conduct Law and reverse the decision of the court below.

” This Court would not have to overrule the holding of The Slaughter-

House Cases here. The cases involved a challenge to a state-granted

monopoly by New Orleans butchers. One could argue that the Court

allowed the local law in part because of concerns that a proliferation of

butcheries would create public nuisances harming third-party rights.

** Kimberly Shankman & Roger Pilon, Reviving the Privileges or

Immunities Clause to Redress the Balance Among States, Individuals, and

the Federal Government, 3 Tex. Rev. L. & Pol’y | (1998). As most com-

mentators agree, the S/aughter-House dicta are flatly wrong, e.g., Curtis,

No State Shall Abridge, supra note 9; John Harrison, Reconstructing the

Privileges or Immunities Clause, 101 Yale L.J. 1385 (1992); Philip Kur-

land, The Privileges or Immunities Clause: “lts Hour Come Round At

Last?,” 1972 Wash. U. L.Q. 405, and this includes commentators who

have themselves taken a narrow view of the Privileges or Immunities

Clause. E.g., Charles Fairman, Does the Fourteenth Amendment Incorpo-

rate the Bill of Rights? The Original Understanding, 2 Stan. L. Rev.

5 (1949).

WILLIAM ESKRIDGE

JOHN A. GARVER PROFESSOR

OF JURISPRUDENCE,

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

(203) 432-9056

* Counsel of Record

January 16, 2003

Respectfully submitted,

ROBER7 A. LEVY *

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, D.C. 20001

(202) 842-0200

APPENDIX 1

STATE CRIME AGAINST NATURE, SODOMY, AND

BUGGERY LAWS, 1868'

Penal Code of Alabama tit. I, ch. 5, § 63 (1866) (“Any person

who commits the crime against nature, either with mankind, or

with any beast...”

Digest of Arkansas Statutes vol. I, ch. 51, part IV, art. IV,

§ 5 (1858) (“sodomy or buggery’)

General Laws of California vol. I, § 1450 (1865) (“The

infamous crime against nature, either with man or beast . . .””)

Swift’s Digest of Laws of Connecticut book V, ch. VII, § |

(1862) (“carnal knowledge committed against the order of

nature by man with man, or in the same unnatural manner with

woman, or by man or woman in any manner with beast . . .”)

Revised Statutes of Delaware tit. XX, ch. 131, § 7 (1852)

(“crime against nature”’)

Manual or Digest of Statutory Law of Florida div. IV, tit. I,

ch. VII, § 11 (1847) (“buggery, or sodomy with either human

being or beast”)

Code of Georgia vol. II, part IV, tit. I, div. 4, § 4286 (1867)

(“Sodomy is the carnal knowledge and connection against the

order of nature, by man with man, or in the same unnatural

manner with woman. . .”)

General Laws of Illinois art. XX, § 50 (1858) (“infamous

crime against nature, either with man or beast’)

' We have compiled this list by examining the criminal codes in place for

each state in 1868. (We did not examine territorial codes.) See also William

Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet (1999) (app.

Al); Ronald Hamowy, Preventive Medicine and the Criminalization of

Sexual Immorality in Nineteenth Century America, in Assessing the

Criminal: Restitution, Retribution, and the Legal Process 35-97 (Randy

Barnett & John Hagel III eds. 1977).

2a ™

General Statutes of Kansas ch. 31, art. VII, § 231 (1868) (“the

detestable and abominable crime against nature, committed with

mankind or with beast”’)

Revised Statutes of Kentucky ch. XXVIII, art. [V, § XI (1867)

(“sodomy or buggery with man or beast”)

Revised Statutes of Louisiana “Crimes & Offences—

Offences Against the Person,” § 5 (1856) (“the detestable and

abominable crime against nature, committed with mankind or

beast’)

Revised Statutes of Maine tit. XI, ch. 124, § 3 (1857) (“the

crime against nature, committed with mankind or with a beast”)

Maryland Code art. 30, § 201 (1860) (“crime of sodomy”)

General Statutes of Massachusetts part IV, tit. I, ch. 165, § 18

(1860) (“the detestable and abominable crime against nature,

either with mankind or with any beast’’)

Compiled Laws of Michigan vol. Il, tit. XXXVIII,

ch. CLXXXV, § 16 (1857) (“the detestable and abominable

crime against nature, either with mankind or with any beast”)

Public Statutes of Minnesota vol. II, ch. 96, § XIII (1859)

(“sodomy or the crime against nature, either with mankind or

any beast”)

Revised Code of Mississippi ch. 64, § LII, art. 238 (1840)

(“the detestable and abominable crime against nature,

committed with mankind or with a beast’’)

Revised Statutes of Missouri ch. L, art. VIII, § 7 (1856) (“the

detestable and abominable crime against nature, committed with

mankind or with beast”)

General Statutes of New Hampshire tit. XXIX (“Crimes &

Offenses”) (1867) did not identify the crime against nature,

sodomy, or buggery as a crime, nor did the Revised Statutes

published in 1851 or 1843, but the Act of June 19, 1812, § 5,

made it a crime if a “man lye with mankind.” Cf. Leviticus

20:13. A reader of the New Hampshire criminal code in 1868

would not have known that “lyeing” was a crime, and a reader

of the Act of 1812 would not have known exactly what conduct

that statute would have penalized.

Digest of Laws of New Jersey “Crimes,” § 9 (1868) (Act of

April 4, 1846) (“Sodomy or the crime against nature, committed

with mankind or beasts”)

Revised Statutes of New York vol. Il, part IV, ch. 1, tit. 5,

§ 20 (1867) (“the detestable and abominable crime against

nature, committed with mankind or with a beast’”’)

Revised Code of North Carolina ch. 34, § 6 (1855) (“the

abominable and detestable crime against nature, with mankind

or beast”’)

Organic and General Laws of Oregon “Criminal Code,” ch.

XLVIII, § 639 (1866) (“sodomy or the crime against nature,

either with mankind or beast’’)

Pennsylvania, Act of March 31, 1860 (“sodomy or buggery”)

Revised Statutes of Rhode Island tit. XXX, ch. 216, § 11

(1857) (“the detestable and abominable crime against nature,

either with mankind or any beast”)

Revised Statutes of South Carolina part IV, ch. CXXXIII,

§ 4 (1873) (“the abominable crime of buggery, whether with

mankind or with beast”)

Compilation of Statutory Laws of Tennessee vol. II, part IV,

ch. 8, § 4843 (1858) (“crimes against nature, either with

mankind or any beast’’)

Digest of the Laws of Texas “Criminal Code,” tit. XII, § 2033

(1866) (“with mankind or beast, the abominable and detestable

crime against nature’’)

General Statutes of Vermont tit. XXXIV (“Crimes and

- Punishments”) (1863), did not identify the crime against nature,

sodomy, or buggery a crime, but the Vermont Supreme Court

. 4a

held in State v. LaForrest, 45 A. 225 (Vt. 1899), that Vermont's

adoption of the English common law in 1779 included the law

against “buggery.”

Code of Virginia vol. Il, tit. 54, ch. CXCVI, § 12 (1860)

(“buggery, with mankind, or with any brute animal”)

Code of West Virginia ch. CXLIX § 12 (1868) (“buggery,

with mankind, or with any brute animal”)

Revised Statutes of Wisconsin ch. 139, § 15 (1849)

(“sodomy, or the crime against nature, with mankind or beast’)

APPENDIX 2

REPORTED STATF SODOMY DECISIONS,

NINETEENTH CENTURY

Davis v. Maryland, 3 H. & J. 154 (Md. 1810) (defendant

allegedly “with force and arms * * * did make an assault

* * * beat, wound, and illtreat” a 19 year-old “youth”)

Commonwealth v. Thomas, 3 Va. 307 (1812) (defendant

convicted for sex with a mare)

Estes v. Carter, 10 lowa 400 (1860) (slander case; decision

does not describe parties or conduct)

State v. Campbell, 29 Tex. 44 (1867) (defendant, a

“freedman of color,” convicted for sex with a mare)

Fennell v. State, 32 Tex. 378 (1869) (decision does not

describe parties or conduct)

Commonwealth v. Snow, 111 Mass. 411 (1873) (defendant

convicted for seduction of a “boy”)

Frazier v. State, 39 Tex. 390 (1873) (decision does not

describe parties or conduct)

Territory v. Mahaffrey, 3 Mont. 112 (1878) (defendant

convicted for seduction of a 14 year-old boy)

People v. Williams, 59 Cal. 397 (1881) (defendant

convicted for assault, with intent to commit “the infamous

crime against nature,” on adult man who complained to

authorities)

State v. Williams, 34 La. Ann. 87 (1882) (decision does not

describe parties or conduct)

Ex parte Bergen, 14 Tex. App. 52 (1883) (habeas corpus

case; decision does not describe parties or conduct)

Collins v. State, 73 Ga. 76 (1884) (defendant convicted for

sex with an unnamed animal)

McAfee v. State, 17 Tex. Cr. App. 131 (1884) (defendant

convicted for sex with a cow)

Cross v. State, 17 Tex. Cr. App. 476 (1885) (defendant

convicted for sex with a mare)

Foster v. State, | O.C.D. 261 (Ohio Cir. 1886) (three

defendants convicted for gang-raping a fourth man)

Lefler v. State, 23 N.E. 154 (Ind. 1889) (decision does not

describe parties or conduct)

Medis v. State, 27 Tex. Cr. App. 194 (1889) (two

defendants convicted for anal intercourse with a third man;

convictions overturned because state witnesses did not

corroborate testimony of consenting “accomplice” that there

was anal penetra.ion)

State v. Chandontette, 25 P. 438 (Mont. 1890) (decision

does not describe parties or conduct)

State v. Frank, 15 S.W. 330 (Mo. 1891) (defendant

convicted for sex with a dog)

Mascolo v. Montesanto, 23 A. 714 (Conn. 1891) (contract

case involving validity of a contract not to sue on civil action

for assault, buggery, communication of a loathesome disease

to 12 and 15 year-old children)

People v. Hodgkin, 53 N.W. 794 (Mich. App. 1892)

(decision does not describe parties or conduct)

Bradford v. State, 16 So. 107 (Ala. 1893) (defendant

convicted for sex with a cow)

Prindle v. State, 21 S.W. 360 (Tex. Cr. App. 1893)

(defendant convicted for oral sex with an adolescent boy;

conviction overturned because oral sex was not the “crime

against nature” under the common law)

State v. Place, 32 P. 736 (Wash. 1893) (defendant

convicted for assault with intent to commit sodomy on a

moving train)

People v. Moore, 37 P. 510 (Cal. 1894) (defendant

convicted for assaulting an adult man; conviction overturned

and new trial ordered)

Hodges v. State, 19 S.E. 758 (Ga. 1894) (defendant

convicted for sodomy committed on a boy under 14 years

old)

Commonwealth v. Dill, 36 N.E. 472 (Mass. 1894) (decision

does not describe parties or conduct)

People v. Hickey, 41 P. 1027 (Cal. 1895) (defendant

convicted for assaulting an adult man)

Williams v. Commonwealth, 22 S.E. 859 (Va. 1895)

(decision does not describe parties or conduct)

Wright v. State, 35 Tex. Cr. App. 367 (1896) (defendant

convicted for sex with a mule)

Lewis v. State, 36 Tex. Cr. App. 37 (1896) (defendant

convicted for oral and anal sex with a woman)

Honseiman v. People, 48 N.E. 305 (Ill. 1897) (defendant

convicted for engaging in oral sex with a 14 year-old boy)

People v. Boyle, 48 P. 800 (Cal. 1897) (defendant

convicted for oral sex with a minor; conviction overturned)

People v. Wilson, 51 P. 639 (Cal. 1897) (defendant

convicted for assault with intent to rape an adult man)

State v. Brown, 139 Mo. 522 (1897) (decision does not

describe parties or conduct)

State v. Smith, 38 S.W. 717 (Mo. 1897) (defendant, a

police officer, convicted for raping a 16-year-old boy)

Darling v. State, 47 S.W. 1005 (Tex. Cr. 1898) (decision

does not describe parties or conduct)

Hawaii v. Edwards, |1 Haw. 571 (1898), 12 Haw. 55

(1899) (decisions do not describe parties or conduct)

Hawaii v. Luning, 11 Haw. 390 (1899) (decision does not

describe parties or conduct)

State v. Romans, 57 P. 819 (Wash. 1899) (defendant

convicted for attempted rape of an adult man)

State v. La Forrest, 45 A. 225 (Vt. 1899) (decision does

not describe parties or conduct)

State v. Vicknair, 28 So. 273 (La. 1900) (defendant

convicted for sex with a 14 year-old boy)

In re King, 82 N.W. 423 (N.D. 1900) (decision does not

describe parties or conduct)

Kelly v. People, 61 N.E. 425 (Ill. 1901) (defendant

convicted for oral sex with a 6 year-old boy)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.