Amicus Curiae Brief — Lawrence v. Texas

Supreme Court, US

FILED

FEB 18

No. 02-102 ”

IN THE CLERA

Supreme Court of the Anited States

JOHN GEDDES LAWRENCE AND TYRON GARNER,

Petitioners.

Vv.

STATE OF TEXAS.

Respondent.

On Writ of Certiorari to the

Texas Court of Appeals for the Fourteenth District

BRIEF AMICUS CURIAE OF PUBLIC ADVOCATE

OF THE UNITED STATES, CONSERVATIVE LEGAL

DEFENSE AND EDUCATION FUND, LINCOLN

INSTITUTE FOR RESEARCH AND EDUCATION,

HELP AND CARING MINISTRIES, INC., AND

CITIZENS UNITED FOUNDATION

IN SUPPORT OF RESPONDENT

PERRY B. THOMPSON HERBERT W. TITUS *

CONSERVATIVE LEGAL WILLIAM J. OLSON

DEFENSE AND EDUCATION WILLIAM J. OLSON, P.C.

FUND Suite 1070

629 High Knob Road 8180 Greensboro Drive

Front Royal, VA 22630 McLean, VA 22102

(540) 305-0012 (703) 356-5070

*Counsel of Record

Attorneys for Amici Curiae February 18, 2003

(Counsel continued on inside front cover)

ec —

IBEST AVAILABLE COPY

MICHAEL Boos

CITIZENS UNITED FOUNDATION

Suite 210

109 Carpenter Drive

Sterling, VA 20164

(703) 464-8572

TABLE OF CONTENTS

Page

ES ili

PE, cccccccocseceesécceceeces l

SUMMARY OF ARGUMENT .............. 00 e ee eeeees 2

ARGUMENT

Il. PETITIONERS’ ARGUMENTS REST UPON

FLAWED CONSTITUTIONAL PREMISES ........ 3

A. Petitioners’ Arguments Undermine the Basis

for Judicial Review in Marbury v. Madison ...... 4

B. Petitioners’ yen Rest upon an

Illegitimate View of this Court’s Power of

EE 7

C. Petitioners’ Arguments Disregard the

Fourteenth Amendment’s Federalist

Tt cp cp eebeeekGkdheceedeeeceseeoese 10

Il. THE “ADULT” CHOICE TO ENGAGE IN

PR'VATE CONSENSUAL HOMOSEXUAL SEX

IS NOT A LIBERTY PROTECTED BY THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

POE ccccamccenccccccsccecccccces 14

A. Petitioners’ Claimed Liberty Interest Has No

Support in this Court’s Opinions ............. 14

B. Petitioners’ Claimed Liberty Interest Has No

Support in the Fourteenth Amendments’s

De Peseess CHRD oc wc cc ccccccccesccccces: 19

Ill. THE EQUALITY PRINCIPLE OF THE

FOURTEENTH AMENDMENT DOES NOT

PROHIBIT A LAW DISCRIMINATING

BETWEEN HOM©S=XUAL AND

HETEROSEXUAL CONDUCT ............... 25

A. Having Failed to Negative Any Conceivable

Rational Basis for Texas Code Section

21.06, Petitioners Have Failed to Meet Their

Burden to Prove an Equal Protection

WR cc cvcccécescecccedoddebsccccecss 27

B. Having Failed to Show that Section 21.06

Has No Legitimate Purpose, Petitioners

Have Failed to Sustain Their Burden to

Prove an Equal Protection Violation .......... 28

ee . . . .. cinccadstnbstbeeusdoonsotecsets 30

—

ili

TABLE OF AUTHORITIES

U.S. CONSTITUTION ™_

DEE ddecekbullocdundkessckacentoteencacs 21, 22

Aaticte I, Section 2, Clamse 2 .... 1. ccc ccc cccccccccs 21

Astecte I, Section 3, Clause 3 ow... ccc ccc cece cece 21

Asticte Ii, Section 1, ClamseS ... 2... cc ccc cc cccccces 21

Di tiencsundusuedédhudacecéaeedocedecéecusce 6

Dt iimicseenddcudeacacebtaebacosueccennan 5

Dt K‘sedcccuscdeunaawenneneddenceannadas 18

i éjedtnetene dhs dndecsusteaneuenends 18

? écct6cevensaneneandesddttecce 21, passim

TT Pid6 teen ited a scseeancuubeenbanin 11

DET acecesnaseadessucbeatocane 2, passim

STATUTES

Texas Penal Code Section 21.06 ............. 19, passim

CASES

Board of Trustees of the Univ. of Ala. v. Garrett,

I a 27

Bowers v. Hardwick, 478 U.S. 186 (1986) ...... 2, passim

City of Boerne v. Flores, 521 U.S. 507 (1997) ...... 11,12

City of Clebure v. Cleburne Living Center, 473

I aaa eel i 26

Civil Rights Cases, 109 U.S. 3 (1883) ................ 12

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 18

Cooper v. Aaron, 358 U.S. 1 (1958) ...........0...... 5

Cruzan v. Director, Mo. Dept. of Health, 497 U.S.

A RS, 16, 17

Eisenstadt v. Baird, 405 U.S. 438 (1972) ............. 14

Graves v. O’Keefe, 306 U.S. 466 (1938) ............... 5

Grigsby v. Reib, 105 Tex. 597,153 S.W.1124

EES Hen ee ee 28

Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 14, 18

iV

20

v. Matheson, 450 U.S. 398 (1981) ...............

che cr hen, 5 US. (14 Botan 540 (1000 Soe 7

Kirk v. Louisiana, 536 U.S. 635 (2002) ............... 18

Marbury v. Madison, 5 U.S. (1 Cranch) 137 |

SEED ccceccesccecescoccevesestecesées 2, passim

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ........ 18

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 a

REE EPE seeeeeees ebeeeeneereeees l

McDonald v. Board of Election Commissioners

of Chicago, 394 U.S. 802 (1969) .........0.000ees 28

Meyer v. Nebraska, 262 U.S. 390 (1923) .......... 14, 15

Oliver v. United States, 466 U.S. 170 (1984) .......... 18

Paris Adult Theatre I v. Slaton, 413 U.S. 49 |

GEUED coccocccconess ane ss 4 thant »& we

Pierce v. Society of Sisters, S. 510 (1925) .......

Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1976) ............0 ee eeees 20

Planned Parenthood of S. E. Pa. v. Casey, 505 U.S.

SEDGE escccesce : a aes i ena 8, _—

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

Reynolds v. Sims, 377 U.S. 533, 591 (1964) ............ 6

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

SN cdc Gaevekbenhegsstedpnrone tie 14, 15, 16

Rochin v. California, 342 U.S. 165 (1952) ......... * ~

. Wade, 410 U.S. 113 (1973) ..........00065 ;

tena 83 U.S. (16 Wall.) 36 (1873) ... .

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

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 “

SU oti ila tne nd edbaddsed ua vaeveds 9,

eatin niin 342 U.S. 48 (1951) ........... 18

2

United States v. Lopez, 514 U.S. 549 (1995) ....... ll, 1

United States v. Morrison, 529 U.S. 598 (2000) ..... 11, 12

Washington v. Glucksberg, 521 U.S. 702 (1997) .... 16,17

Wright v. United States, 302 U.S. 583 (1938) .......... 7

MISCELLANEOUS

H. Packer, The Limits of the Criminal Sanction 30\- 12

(Stanford Univ. Press: 1968)

Meese, “Perspective on the Authoritativeness of Supreme

Court Decisions: The Law of the Constitution,” 61

Tulane L. Rev. 979 (1987) ....................... 5

Law Found.: 1972)

Titus, “Defining Marriage and the Family,” 3 Wm.

& Mary Bill of Rights J. 327 oa 24, 28

W. Blackstone, Commentaries on the Laws of

England (U. Chi. Facsimile Ed.: 1765)

Webster’s 1828 Dictionary

INTEREST OF AMICI CURIAE

The amici curiae, Public Advocate of the United States,

Conservative Legal Defense and Education Fund, The Lincoln

Institute for Research and Education, Help and Caring

Ministries, and Citizen United Foundation are nonprofit

educational organizations sharing a common interest in the

proper construction of the Constitution and laws of the United

States.' All of these amici were established, inter alia, for

public education purposes related to participation in the public

policy process, and are tax-exempt under Section 501(c)(3) or

Section 501(c)(4) of the Internal Revenue Code.

For each of the amici, such purposes include programs to

conduct research, and to inform and educate the public, on

important issues of national concern, including questions

related to fidelity to the original text of the United States

Constitution, including its several Amendments. The

Fourteenth Amendment issues presented in this case directly

impact the family and are of great interest and importance to

these amici. In the past, most of these amici have filed amicus

curiae briefs in other federal litigation, including matters before

this Court, involving constitutional issues.’

' Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel

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

entity other than these amici curiae made a monetary contribution to the

preparation or submission of this brief.

* Amici requested and received the written consents of the parties to the

filing of this brief amicus curiae. Such written consents, in the form of

letters from counsel of record for the parties, have been submitted for filing

to the Clerk of Court.

2

SUMMARY OF ARGUMENT

Petitioners’ Due Process and Equal Protection arguments rest

upon a wrong view of this Court’s power of judicial review.

Under Marbury v. Madison, this Court has no legitimate power

to interpret the Constitution to conform its guarantees to

changing circumstances, but only to expound the constitution’s

permanent principles in accordance with the original text. To

that end, this Court is governed by the express terms and

federalist structure of the Fourteenth Amendment, not by

petitioners’ views of evolving societal practices and mores.

Petitioners’ contention that the substantive liberty guarantee

of the Fourteenth Amendment’s Due Process Clause includes

the right of adults to choose to engage privately in sex with a

consenting adult of the same sex is contrary to precedent.

Petitioners err in calling this Court to overturn Bowers v.

Hardwick, because the Bowers holding, not the petitioners’

revisionist contentions, is consistent with the true meaning of

the substantive Due Process liberty guarantee.

Petitioners’ contention that the equal protection guarantee of

the Fourteenth Amendment prohibits Texas from

discriminating between heterosexual and homosexual deviate

sexual intercourse is based upon an unproved assumption that

a person’s sexual behavior is determined by a “deeply rooted

personal characteristic.” By such an assumption, Petitioners

cannot shift the burden to Texas to prove a rational basis or a

legitimate purpose for Texas Penal Code Section 21.06.

3

ARGUMENT

I. PETITIONERS’ ARGUMENTS REST UPON

FLAWED CONSTITUTIONAL PREMISES.

Petitioners contend that the Fourteenth Amendment’s Due

Process and Equal Protection clauses invalidate the Texas

Homosexual Conduct Act because the United States

Constitution should be read by this Court to mirror what

petitiuners have described as “a strong national consensus

reflecting profound judgments about the limits of government

intrusive powers in a civilized society.” Pet. Br. at 24.

According to petitioners, there is a new national consensus that

has rejected “both evenhanded and discriminatory bans on

private sexual conduct between consenting adults,” and

therefore, the Due Process and Equal Protection clauses should

be construed by this Court to force the people of the State of

Texas to abandon their archaic moral views, and to conform

their criminal laws governing human sexuality to those of the

majority of the other states. Pet. Br. at 22-24.

At stake in this case, then, is not simply whether the Texas

Homosexual Conduct Statute violates the Due Process and

Equal Protection guarantees of the Fourteenth Amendment.

Rather, Petitioners’ argument — that this Court should exercise

its power of judicial review to impose upon the people of Texas

a moral and legal standard not found in the original text of the

Fourteenth Amendment, but found in modern sexual mores and

the laws of a large majority of Texas’s sister states —

undermines the very nature of a written constitution, calls for

an illegitimate exercise of this Court’s Article III judicial

power, and breaks with the federalist structure of the United

States Constitution.

4

A. Petitioners’ Arguments Undermine the Basis

for Judicial Review in Marbury v. Madison.

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 ( 1803), Chief

Justice John Marshall observed that the “whole American fabric

has been erected” upon the principle that “the people have -

original right to establish, for their future government, nr

principles as, in their opinion, shall be most conducive to . “4

own happiness.” /d., 5 U.S. at 176 (emphasis added).

Furthermore, he noted, since this “original right cannot nor

“ought [not] to be frequently repeated,’ _the principles .

established must be “deemed fundamental.” /d. “And, as the

authority, from which they proceed, is supreme, and can pe

act, they are designed to be permanent.” /d. (emphasis adde ).

In order that such permanent principles “may not be mistaken,

or forgotten,” the Chief Justice continued, “the constitution is

written” (id.), and because it is written, it Is a Superior,

paramount law, unchangeable by ordinary means....” /d., 5

U.S. at 177 (emphasis added).

These twin standards of permanence and unchangeability by

ordinary means, the Marbury court stated, arose from the very

essence of a written constitution: “This theory is essentially

attached to a written constitution, and, is consequently to be

considered, by this court, as one of the fundamental principles

of our society.” Jd., 5 U.S. at 176-77. And, as the Marbury

court further observed, in declaring “this Constitution to be the

“Supreme Law of the Land,” Article VI contained —

phraseology ... confirm[ing] and strengthen[ing} the — e,

supposed to be essential to all written constitutions, that a =

repugnant to the constitution is void; and that courts, as ~

as other departments, are bound by that instrument. /¢.,

5 U.S. at 180 (emphasis added).

To be sure, the Marbury court also stated that it is “the

5

province and duty of the judicial department to say what the

law is,” but, by this statement, it could not have meant that

what it “expound[ed] and interpret[ed]” to be the law is

superior to the law as stated in the constitutional text (id., 5

U.S. at 177). To the contrary, the Marbury court emphasized

that a judge, like a legislator or an executive officer, “take[s] an

oath ... ‘to faithfully and impartially discharge all the duties

incumbent on me according to the best of my abilities and

understanding, agreeably to the constitution and laws of the

United States” (id, 5 U.S. at 180 (emphasis added)),

concluding rhetorically:

—Why does a judge swear to discharge his duties agreeably

to the constitution of the United States, if that constitution

forms no rule for his government? [/d., 5 U.S. at 180.]

Just because a court, even this Court, states a constitutional rule

does not mean that what the court has said is either

constitutional or supreme. Rather, as Article VI States, “This

Constitution ... shall be the supreme law of the land...”

According to petitioners, however, this declaration in Article

VI does not mean what it says. Instead, they have premised

> Even though this Court has stated in Cooper v. Aaron, 358 U.S. 1, 17

(1958), that “Marbury v. Madison ... declared the basic principle that the

federal judiciary is supreme in the exposition of the law of the Constitution,”

and therefore, that its “interpretation of the Fourteenth Amendment

enunciated by this Court in the Brown case is the surpeme law of the land,”

this broad statement does not mean that this Court is not bound by the

constitutional text. As Justice Frankfurter, who joined in the Cooper

decision, stated “[t]he ultimate touchstone of constitutionality is the

Constitution itself and not what we have said about it.” Graves v. O’Keefe,

306 U.S. 466, 491-92 (1938) (Frankfurter, J., concurring). See also Meese,

“Perspective on the Authoritativeness of Supreme Court Decision: The Law

of the Constitution,” 61 Tulane L. Rev. 979 (1987).

6

their argument explicitly upon the proposition that this Court

may “giv[e] meaning to contemporary truths about freedom,

where earlier generations had failed to acknowledge and specify

an essential aspect of liberty.” Pet. Br. at 20. For example,

petitioners have urged this Court to expand the constitutional

definition of “liberty” to include “private consensual sexual

intimacy,” in part, because mental health professionals and

other experts have determined that a “gay or lesbian sexual

orientation is a normal and natural manifestation of human

sexuality.” Pet. Br. at 16-17. Even though they claim that this

kind of argument is no different from this Court’s interpretation

of “liberty” in prior cases (see Pet. Br. at 19-20), petitioners

have constructed an argument not anchored in any way to the

original text of the Constitution, but resting on the assumption

that the constitution should be modified by this Court to

conform to what petitioners have described as a firm break

from the Nation’s “prior legal tradition of criminalizing many

adult choices about private sexual intimacy.” Pet. Br. at 21.

Additionally, petitioners have called for the overturning of

Bowers v. Hardwick, 478 U.S. 186 (1986), not on the grounds

that it was wrongly decided, but because, since Bowers, “the

Nation has continued to reject the extreme intrusion into the

realm of personal privacy approved in that case....” Pet. Br. at

30.

Petitioners’ audacious claims constitute a direct assault on

Article V of the Constitution which specifies only two means

by which the enduring principles of the Constitution may be

changed, one by constitutional convention and the other by state

legislative ratification of an amendment proposed by Congress.’

It emphatically does not include changes in the criminal law

* Petitioners are seeking what Justice Harlan described as “nothing less than

an exercise of the amending power [by the Supreme Court].” Reynolds v.

Sims, 377 U.S. 533, 591 (1964).

7

that have been taking place “[o]ver the last half century” (Pet.

Br. at 21-25), nor in “legal, political, and social

development(s]” that have taken place since Bowers. See Pet

Br. at 30-32. In essence, Petitioners have invited this Court to

amend the Due Process and Equal Protection clauses to

conform to changes in sexual mores in American society. This

Court should decline petitioners’ invitation.

B. Petitioners’ Arguments Rest upon an

Illegitimate View of this Court’s Power of

Judicial Review.

In order that courts not elevate themselves above the

constitution in the exercise of their constitutional duty of

Judicial review, Chief Justice Marshall’s successor, Chief

J ustice Roger B. Taney, for an unanimous court, articulated the

“principle of construction”. binding upon the courts when

“expounding the Constitution of the United States”:

[E]very word must have its due force and appropriate

meaning, ior it is evident from the whole instrument that no

word was unnecessarily used or needlessly added... Every

word appears to have been weighed with the utmost

deliberation, and its force and effect to have been fully

understood. [Holmes v. Jennison, 39 U.S. (14 Pet

570-71 (1840).] roe

Thus, “to disregard [the] deliberate choice of words and their

natural meaning” has been considered by this Court to “be a

departure from the first principle of constitutional

interpretation.” Wright v. United States, 302 U.S. 583, 588

(1938). Moreover, to ignore the constitutional text in favor of

a rule of constitutional interpretation based upon “extrinsic

circumstances,” as Chief Justice Marshail stated in Sturges v.

Crowninshield, 17 U.S. (4 Wheat.) 122, 202 (1819), “would be

dangerous in the extreme”:

[A]lthough the spirit of an instrument, especially of a

constitution, is to be respected not less than its letter, yet the

spirit is to be collected chiefly from its words. [/d. }

Remarkably, petitioners have made no effort whatsoever to

couch their due process and equal protection arguments within

the four comers of the constitutional text. To the contrary, their

brief is dominated by citations to state criminal statutes, law

review articles, and sociological and psychological authorities.

See especially Pet. Br. at 17-18 and fn. 10-12, 20, 25, 30, 34-35.

True, petitioners have sprinkled their brief with citations and

quotes from constitutional opinions of this Court, but these are

lifted out of context, both factual and legal. Petitioners’ use of

language from Paris Adult Theatre I v. Slaton, 413 US. 49, 63

(1973), and their citation to Planned Parenthood of S. E. Pa. v.

Casey, 505 U.S. 833, 851 (1992), is illustrative:

Sexual intimacy is “a sensitive, key relationship of human

existence, central to family life, community welfare, and the

development of human personality.” Paris Adult Theatre

I v. Slaton, 413 U.S. 49, 63 (1973). One’s sexual

orientation, the choice of one’s partner, and whether and

how to connect sexually are profound attributes of

personhood where compulsion by the State is anathema to

liberty. Cf Casey, 505 U.S. at 851. Thus, the essential

associational freedom here is the freedom to structure one's

own private sexual intimacy with another adult. [Pet. Br. at

12-13 (footnote omitted). ]

When placed in context, petitioners’ quotation from Paris

Adult Theatre is highly misleading:

The sum of experience, including that of the past two

mettre A tty

9

decades, affords ample basis for legislatures to conclude

that a sensitive, key relationship of human existence.

central to family life, community welfare, and the

development of human personality, can be debased and

distorted by crass commercial exploitation of sex. Nothing

in the Constitution prohibits a State from reaching such a

conclusion and acting on it legislatively simply because

there is no conclusive evidence or empirical data. [Paris

Adult Theatre I v. Slaton, 413 U.S. at 63 (N.B. the language

from case quoted in Petitioner’s Brief appears in italics).]

Had petitioners made accurate use of Paris Adult Theatre,

they could not have utilized the selected passage as the

foundation for reaching their conclusion that an “essential

associational freedom” includes “the freedom to structure one’s

Own private sexual intimacy with another adult.” To the

contrary, the passage that immediately followed the one quoted

in petitioners’ brief provides no support for their position:

It is argued that individual “free will” must govern, even in

activities beyond the protection of the First Amendment and

other constitutional guarantees of privacy, and that

government cannot legitimately impede an individual’s

desire to see or acquire obscene plays, movies, and books.

We do indeed base our society on certain assumptions that

people have the capacity for free choice... Totally

unlimited play for free will, however, is not allowed in our

or any other society.... [Some] laws are to protect the weak,

the uninformed, the unsuspecting, and the gullible from the

exercise of their own volition. [/d., 413 U.S. at 63-64.]

In an effort to escape the implications of Paris Adult Threatre

1, petitioners have interposed a citation to Casey, but there is ;

nothing in Casey that says anything about “sexual orientation,”

10

“choice of one’s partner” or “how to connect sexually.” See

Casey, 505 U.S. at 851.

By their misuse of Paris Adult Theatre | and Casey,

petitioners have confirmed the necessity for Chief Justice

Marshall’s admonition in Sturges, not to allow extrinsic

circumstances” to determine the meaning of a constitutional

text, but to discern the meaning from the words themselves

within the structure of the written constitution. See McCulloch

v. Maryland, 17 U.S. (4 Wheat.) 316, 405-24 (1819).

C. Petitioners’ Arguments Disregard the Fourteenth

Amendment’s Federalist Structure.

Underlying petitioners’ entire brief is the assumption that the

United States of America is a unitary civil society in which

every state must conform its public policy toa roa men

in support of their due process priv

ir have argued that (1) “the Nation has firmly broken

from its prior legal tradition of criminalizing many adult

choices about private sexual intimacy” (Pet. Br. at 21), (2) “the

Nation has continued to reject the extreme intrusion into the

realm of personal privacy” (Pet. Br. at 30), and (3) “the Nation

has steadily moved toward rejecting second-class-citizen status

for gay and lesbian Americans” (Pet. Br. at 30-31).

support of their equal protection claim, petitioners have

oman (1) “our Nation has no legal tradition making

the criminality of private sexuality turn on whether a couple is

homosexual or heterosexual,” and (2) “the laws of this Nation

have reflected and played a role in virulent anti-gay

discrimination over the last century” (Pet. Br. at 45).

As a matter of fact, however, the change in the criminal law

governing human sexual conduct has come about state by state,

a, toe errr

11

grounded upon policy considerations concerning the limits on

the criminal sanction,’ and not upon a monolithic national

plebiscite on the morality of private adult homosexual conduct,

as petitioners have implied. See Pet. Br. at 21-24.

In the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873),

the Court rejected the proposition that the Fourteenth

Amendment’s Due Process and Equal Protection Clauses

imposed a national standard of substantive individual rights

upon the states. In doing so, the Court affirmed that the

Fourteenth Amendment was not designed to constitutionalize

the exercise of the several States’ police powers, but left it to

the individual States to formulate and implement their policies

governing the health, safety, welfare, and morals of the people,

subject only to the procedural requirements of the Due Process

Clause and the anti-racial discrimination policy of the Equal

Protection Clause. /d., 83 U.S. at 74-82.

While the narrow interpretation of the two clauses endorsed

by the Slaughter-House Court has not been followed, this Court

has not rejected its federalist principle. Rather, it has recently

affirmed that the Fourteenth Amendment should not be

construed in such a way as to permit Congress, in the exercise

of its enforcement powers under Section 5, “to intrude into the

traditional areas of state responsibility, a power inconsistent

with the federal design central to the Constitution.” Ci

Boeme v. Flores, 521 U.S. 507, 521 (1997). Indeed, in two

recent cases this Court has struck down congressional efforts

under the Commerce Clause because they intruded upon the

police powers preserved to the States by the Tenth Amendment.

United States v. Lopez, 514 U.S. 549 (1995); United States v.

Morrison, 529 U.S. 598 (2000).

“S

* See H. Packer, The Limits of the Criminal Sanction 301-12 (Stanford

Univ. Press: 1968).

12

In Lopez, the Court ruled against an expansive view of the

federal commerce power lest it enable Congress to * regulate

any activity found related to economic productivity of

individual citizens: family law (including marriage, divorce,

and child custody) [and] even in areas such as criminal law

enforcement or education where States historically have been

sovereign.” /d., 514 U.S. at 564. In Morrison, the Court not

only struck down an effort by Congress to criminalize “gender-

motivated violence,” as outside of the scope of the Commerce

Clause, but it also rejected the claim that Congress had

authority under the Fourteenth Amendment to enact a statute

providing for a civil remedy against the perpetrator of a gender-

motivated violent crime even though Congress had marshaled

evidence that such a statute was designed to combat “pervasive

bias in various state justice systems against victims of gender-

motivated violence.” Morrison, 529 U.S. at 619. Again the

Court emphasized that the limitations placed on the exercise of

congressional power under the Fourteenth Amendment were

“necessary to prevent the Fourteenth Amendment from

obliterating the Framers’ carefully crafted balance of power

between the States and the National Government.” /d., 529

U.S. at 620. In support, the Court, citing Boeme, stated that

both history and contemporary belief affirms that “the

[Fourteenth] Amendment ‘does not concentrate power in the

general government for any purpose of police government

within the States.” /d., 529 U.S. 620-21.

Although these rulings concern the power of Congress under

Section 5 of the Fourteenth Amendment, the same federalist

principles have informed and limited the power of the courts in

ing the reach of the Fourteenth Amendment. See, e.8.,

Civil Rights Cases, 109 U.S. 3 (1883). Additionally, in

construing the substantive due process and equal protection

guarantees, this Court has been acutely aware of the limits

placed upon the exercise of judicial power by both “the

13

language [and] design of the Constitution.” Bowers v.

Hardwick, 478 U.S. 186, 194-95 (1986). Thus, in Bowers, the

Court declined to take an “expansive view of [its] authority to

discover new fundamental rights embedded in the Due Process

Clause.” /d., 478 U.S. at 194.

In their brief, petitioners have advanced arguments that, if

accepted by this Court, cannot be confined to striking down the

Texas statute criminalizing homosexual conduct. With respect

to their Due Process contentions, their reliance upon modern

trend to decriminalize such conduct as support for

constitutionalizing that trend is equally applicable to similar

trends in the areas of outlawing discrimination against “sexual

orientation” in housing, public employment, public

accommodations, and other areas, as well as hate crimes, and

child adoption. See Pet. Br. at 17-19. Thus, at bottom,

petitioners’ due process arguments rest upon a claim that

heterosexuals and homosexuals should be treated alike, lest

“gay and lesbian Americans” be reduced to second class

citizenship. See Pet. Br. at 16, 18, 30-31. Indeed, petitioners’

equal protection claim rests explicitly upon the proposition that

Texas’s Homosexual Conduct Law “makefs] gay people

unequal in myriad spheres of everyday life and continue[s] an

ignominious history of discrimination based on sexual

orientation.” Pet. Br. at 34. Thus, petitioners condemn the

criminalization of homosexual conduct because it “formalizes

[a] pejorative classification of lesbians and gay men as second-

class citizens,” not entitled to the same child custody and

visitation rights, foster parent rights, and employment

opportunities as heterosexuals. Pet. Br. at 41-44.

In summary, petitioners’ due process and equal protection

contentions go far beyond this case: Not only must homosexual

conduct be decriminalized, but any and all distinctions based

upon “sexual orientation” must be discarded in favor of a new

14

definition of “family” that would include recognition of

homosexual unions on the same basis as heterosexual. See Pet.

Br. at 16-19. Such a wholesale adoption of the gay rights

agenda to be imposed upon the states as a matter of law is

insupportable, unwarranted either by the constitutional text or

by this Court’s opinions.

ll. THE “ADULT” CHOICE TO ENGAGE IN

PRIVATE CONSENSUAL HOMOSEXUAL SEX IS NOT

A LIBERTY PROTECTED BY THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT.

Petitioners have frankly admitted that their claim — that

adults have a “fundamental right” to engage in homosexual

sodomy — is not “enumerated” in the Due Process Clause of

the Fourteenth Amendment. Pet. Br. at 10. Instead, they claim

that such a right may be extrapolated from this Court's

recognition of. “three well-recognized aspects of personal

liberty — in intimate relationships, in bodily integrity, and in

the privacy of the home.” Pet. Br. at 11. Thus, according to

petitioners, “(t]he well-established fundamental interests in

intimate relationships, bodily integrity, and the sanctity of the

home all converge in the right asserted here.” Pet. Br. at 9.

This is not true. Neither this Court’s opinions nor the text of

the Fourteenth Amendment Due Process Clause guarantees an

adult’s choice to engage in consensual homosexual sex.

A. Petitioners’ Claimed Liberty Interest Has No Support

in this Court’s Opinions.

1. Intimate Relationships. Cobbling together isolated

phrases lifted from Roberts v. United States Jaycees, 468 U.S.

609, 617-18 (1984), Griswold v. Connecticut, 381 U.S. 479,

485-86 (1965), Eisenstadt v. Baird, 405 U.S. 438, 453 (1972),

15

- Planned Parenthood of S.E. Pa. v. Casey, supra, 505 U.S. at

851, 852, 898 (1992), and Paris Adult Theatre I v. Slaton

supra, 413 U.S. at 63, petitioners have created a new

“associational freedom” — never before recognized by this

Court — “to structure one’s own private sexual intimacy with

another adult.” Pet. Br. at 11-12.

In Roberts v. United States Jaycees — upon which petitioners

have placed primary reliance for their claim of a well-

recognized general liberty interest in “intimate associations” —

this Court stated just the opposite, asserting that “[t]he Court

has long recognized that, because the Bill of Rights is designed

to secure individual liberty, it must afford the formation and

preservation of certain kinds of highly personal relationships

a substantial measure of sanctuary from unjustified interference

by the State.” /d., 468 U.S. at 618 (emphasis added). In

support of this proposition the Court cited two of its most

venerable precedents, Pierce v. Society of Sisters, 268 U.S. 510

534-35 (1925), and Meyer v. Nebraska, 262 U.S. 390, 399

(1923). In Meyer, the Court laid down the legal parameters by

which it would be governed in determining whether any

particular claim of individual liberty was protected by the Due

Process clause of the Fourteenth Amendment:

While this Court has not attempted to define with exactness

the liberty thus guaranteed.... Without doubt, it denotes not

merely freedom from bodily restraint, but also the right...,

generally, to enjoy those privileges long recognized at

common law as essential to the orderly pursuit of

happiness of free men. [Meyer v. Nebraska, supra, 262

U.S. at 399 (emphasis added). ] =

While the Court in Roberts recognized that the common law

boundary set by Meyer had been extended, it did not embrace

the open-ended case for “intimate associations” claimed by

16

petitioners. To the contrary, the Court reaffirmed that

recognition of “certain kinds of personal bonds” as within the

concept of ordered liberty depended upon whether such bonds

“have played a critical role in the culture and traditions of the

Nation by cultivating and transmitting shared ideals and

beliefs.” Roberts v. United States Jaycees, 468 U.S. at 618-19.

Following these recognized common law and traditional

guidelines, as reaffirmed in Roberts, this Court in Bowers v.

Hardwick, declined to recognize that Fourteenth Amendment

“liberty” included a “fundamental right to homosexuals to

engage in acts of consensual sodomy,” dismissing such a claim

in the light of long tradition criminalizing such conduct as “at

best, facetious.” Jd. 478 U.S. at 192-94. Contrary to

petitioners’ assertion (see Pet. Br. at 30-32), then, Bowers is not

an “isolated decision,” undeserving the protection of the

principle of stare decisis. Rather, Bowers represents a correct

application of this Court’s precedents protecting, in the

language of Roberts, only those intimate associations that have

played a “critical role in the culture and tradition of the

Nation.”

2. Bodily Integrity. Petitioners’ case for overturning

Bowers fares no better if it is based upon precedents that,

according to petitioners, establish a liberty interest in “bodily

integrity.” Mining Casey, Washington v. Glucksberg, 521 U.S.

702 (1997), Rochin v. California, 342 U.S. 165, 166, 173-74

(1952), and Cruzan v. Director, Mo. Dept. of Health, 497 U.S.

261, 278 (1990), petitioners have claimed to have found an

established liberty interest in “control over one’s body ... in

sexual relations, involving as they do the most intimate physical

interactions conceivable.” Pet. Br. at 13. Again, petitioners

have made a wholly unwarrantable claim that this Court has

recognized a wholesale right in “bodily integrity,” when the

very cases cited by petitioners prove otherwise.

es A FR EE nen.

17

In Casey, as one of the quoted passages in petitioners’ brief

clearly indicates, the references to bodily integrity were in

support of a pregnant woman’s right to an abortion, not to

: bodily integrity” generally. That right, in turn, was premised

in Roe v. Wade, 410 U.S. 113 (1973), on an assessment of

common law history reflecting, in the Majority’s opinion, a

limited right of a woman to obtain an abortion. Id., 410 US. at

140-41. After Casey, when presented with a claim that

physician-assisted suicide also qualified as a protected liberty

interest, this Court declined to so rule, noting that there was no

evidence either of a common law or a traditional “right” to

commit suicide, and thus, the claim fell short of the first of two

primary features of “substantive-due process analysis.”

Glucksberg, 521 U.S. at 710-15, 720-23. Furthermore, this

Court reiterated its position that any due process substantive

liberty claim must be carefully and specifically described, not

based upon generalities such as the ones employed by

petitioners in their brief. /d., 521 U.S. 723-27. See also

Cruzan, 497 U.S. at 269-71, 278-79.

A correct reading of Casey in light of Glucksberg and Cruzan,

then, is that this Court has recognized a liberty interest in

bodily integrity” where such an interest has long been

established at common law, or where the common law did not

clearly condemn the claimed interest. As pointed out in

Bowers, any claim of a right to engage in sodomy based upon

an asserted interest in “bodily integrity” fails because of the

unequivocal common law condemnation of the practice

Bowers, 478 U.S. at 192. Whatever has happened since

Bowers cannot change that fact.

3. The Privacy of the Home. Petitioners’ final i

me. appeal is that

there is an established liberty interest in private adult

consensual sodomy because of the “deeply entrenched interest

in the privacy of the home.” Pet. Br. at 14. Once again,

18

petitioners have taken isolated sentences from this Court’s

opinions and constructed a new privacy right out of whole

cloth, elevating the home to a safe “sanctuary, privileged from

prying eyes” (Pet. Br. at 15, n. 9), a “safe” harbor from

government intrusions. Pet. Br. at 14-15. Citing First and

Fourth Amendment cases, as well as from the standard privacy

repertoire of Griswold v. Connecticut, 381 U.S. 479 (1965), and

Stanley v. Georgia, 394 U.S. 557 (1969), petitioners have

carved out a privacy right that, unlike all but Griswold, found

a right that is shaped primarily by the fact that the activity in

question was taking place in the home. This point is especially

significant in assessing the legitimacy of petitioners’ analogical

reasoning from the Fourth Amendment cases. There is no

doubt that the home has received heightened protection of the

Fourth Amendment’s warrant requirement, but it has never

been recognized as a constitutionally protected “sanctuary,”

immunizing its occupants from any government intrusion

whatsoever, or protecting from such intrusions when the

probable cause relates to intimate activity engaged in

consenting adults. Cf. Bowers., 478 U.S. at 195-96.

On the other hand, the Fourth Amendment warrant

requirement has been tailored to whether a search and seizure

takes place in a home,’ a hotel room,’ a car,* an open field,’ or

a commercial establishment.'® Petitioners, however, have not

contended in this case that the right to engage in consensual

© Kirk v. Louisiana, 536 U.S. 635 (2002).

” United States v. Jeffers, 342 U.S. 48 (1951).

® Coolidge v. New Hampshire, 403 U.S. 443 (1971).

> Oliver v. United States, 466 U.S. 170, 176-77 (1984).

‘© Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).

>

19

homosexual conduct varies depending whether it takes place in

the home, as contrasted to a hotel room, a car, a secluded place

on a beach, or even in a private room made available to a

couple by a commercial bathhouse. For this reason alone

petitioners’ effort to link their claim to the “privacy of the

home” interests should be dismissed as specious.

B. Petitioners’ Claimed Liberty Interest Has No Support

in the Fourteenth Amendment’s Due Process Clause.

Apart from including the due process language in the

Fourteenth Amendment in the Statutory and Constitutional

Provisions section of their brief, petitioners have paid no

attention whatsoever to the text, context and history of the Due

Process Clause of the Fourteenth Amendment. And for good

reason. Neither the text, nor the context, nor the history of the

Due Process Clause provides any support for petitioners’ claim.

1. Person. Texas Penal Code Section 21.06 provides that

“[a] person commits an offense if he engages in deviate sexual

intercourse with another individual of the same sex.”

(Emphasis added.) In their Argument Summary, Petitioners

claim that this section of the Homosexual Conduct Law is

unconstitutional, but only as applied to “adults,” not as applied

to persons who are not adults:

Section 21.06 puts the State of Texas inside its citizens’

homes, policing the details of their most intimate and

private physical behavior and dictating with whom they

may share a profound part of adulthood.” [Pet. Br. at 8

(emphasis added). }

Fundamental liberty and privacy interests in adults’ private,

consensual sexual choices are essential to the ordered

liberty our Constitution protects. [Id. (emphasis added). ]

20

Throughout Argument I, petitioners have consistently identified

the liberty interest they claim as one enjoyed by “adults.”

According to petitioners, then, the fundamental right to

engage in private consensual sodomy is limited to adults. But —

the Due Process Clause applies to “persons,” not just to adults.

As this Court has consistently held in its abortion opinions, the

liberty interest enjoyed by a woman to terminate her pregnancy

extends to minors, as well as to adults. See, e.g., Planned

Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74

(1976) (“Constitutional rights do not ... come into being

magically only when one attains the state-defined age of

majority. Minors, as well as adults, ... possess constitutional

rights.”) While the minority status of a person may be a factor

permitting certain due process restrictions upon her access to an

abortion that could not be placed upon that person if she were

an adult, her minority status does not mean that she has no

liberty interest at all. See H.L. v. Matheson, 450 U.S. 398

(1981). By claiming that only adults have a liberty interest

protected by the Due Process Clause, petitioners have done

violence to the text, relegating minors to nonpersons, without

any effort whatsoever to provide textual support for their

position. Compare Roe v. Wade, supra, 410 U.S. at 156-57.

'! “Aj} adults have the same fundamental liberty interests in their private

consensual sexual choices.” Pet. Br. at 11. “The adult couple whose shared

life includes sexual intimacy is undoubtedly one of the most important and

profound forms of intimate association.” /d. at 12. “For many adults in

modern society, sexual intimacy is an important aspect of forming or

building committed relationship where one does not already exist.” Id. at

12, n. 8. “If heterosexual adults have a fundamental interest in consensual

sexual intimacy ... then so too must homosexual adults.” /d. at 19. “[BJoth

evenhanded and discriminatory bans on private sexual conduct between

consenting adults have been rejected in contemporary times.” /d. at 22.

“Texas Cannot Justify Section 21.06's Criminal Prohibition of Petitioners’

and Other Adults’ Private Sexual Intimacy.” /d. at 25.

— cnet

centsscmscatin pete

=—

21

Had petitioners attempted to provide textual support for their

position, it would have failed. As this Court pointed out in

Roe, the “Constitution does not define ‘person’ in so many

words.” /d., 410 U.S. at 156. Nevertheless, there are several

provisions in that document decisively indicating that “person,”

standing alone, cannot be limited by age. See Article I, Section

2, Clause 2 (“ No person shall be a Representative who shall

not have attained the age of twenty five”); Article I, Section 3,

Clause 3 (“No person shall be a Senator who shall not have

attained to the Age of thirty years”); and Article II, Section 1,

Clause 5 (“Neither shall any person be eligible to that Office

[President] who shall not have attained the Age of thirty five

years.”) By not placing any age limitation upon the Due

Process text, the Fourteenth Amendment’s use of the word,

person, like the Fifth Amendment, mirrors the definition of

person found in Webster’s 1828 Dictionary: “An individual

human being consisting of body and soul.... A man, woman or

child.”

2. Liberty. Liberty, like person, is not defined within the

four corners of the Constitution. But the word does appear in

two other places, the Fifth Amendment and the Preamble. Both

provisions shed light on the meaning of the term.

Both the Fifth Amendment and the Fourteenth Amendment

use “liberty” in relationship to due process and, except for a

slight difference in phrasing, contain identical due process

language, the Fifth applying to the federal government and the

Fourteenth applying to the States. On their face, there is no

reason to give a different definition to any of the key terms,

even though the Fifth Amendment was ratified and made a part

of the Constitution in 1791 and the Fourteenth in 1868. Indeed,

the right not to be deprived of one’s life, liberty, or property has

ancient roots, traceable all the way back to the “law of the land”

chapter of the 1215 Magna Carta. Sources of Our Liberties 5-6

22

(R. Perry, ed., ABA Law Found.: 1972) (hereinafter “Sources”’).

Even at the time of America’s founding, the right to due

process was still being stated in “law of the land” terms,

although in restating the right, the word “liberty” became

attached to it. Thus, Section 8 of the June 1776 Virginia

Declaration of Rights read, in part: “that no man be deprived

of his liberty, except by the law of the land.” Sources, at 312.

Accord, Article IX, Aug. 1776 Constitution of Pennsylvania,

reprinted in Sources at 330. Thereafter, several state

constitutions added “life” and “property” to their “law of the

land” provisions. See, e.g., Article XXI, 1776 Constitution of

Maryland, reprinted in Sources at 348. The Fifth Amendment

tracked these early state developments, incorporating verbatim

“life, liberty or property,” but substituting due process of law

for law of the land.

The state constitutional commands protecting “liberty” by due

process of law, then, predated both the Fifth and Fourteenth

Amendments. Significantly, these state constitutions contained

language defining the substantive meaning of liberty.

According to the /776 Pennsylvania Constitution, “liberty” was

a “natural, inherent and inalienable right,” not one created by

the constitution, but preexisting in the nature of things. Article

1, 1776 Pennsylvania Constitution, reprinted in Sources at 329.

Accord, Section 1, 1776 Virginia Constitution, reprinted in

Sources at 311. This same notion of a preexisting natural right

of liberty is affirmed in the Preamble to the United States

Constitution, which states that the Constitution was “ordain{ed]

and establish{ed],” in part, to “secure the blessings of liberty to

ourselves and our posterity.” (Emphasis added.) This

language, in turn, tracked the words of the nation’s charter, the

Declaration of Independence, which states that “governments

are instituted among men” to “secure” the “inalienable rights

of life, liberty and the pursuit of happiness.” The Declaration,

like the early Virginia and Pennsylvania Constitutions,

23

identifies those inalienable rights as isti

. preexisting. In the case of

the Declaration, and hence the United States Constitution, sie

rights are “endowed by the Creator” and enjoyed by all

mankind because “all men are created equal.”

The original substantive concept of li

Constitution, including the F ifth and Aaa gy Panes

must be understood as having been established by the Creator,

and thus preexisting according to the created nature of the

mankind, not as having been established according to societal

conventions, constitutional, communitarian, or otherwise. In

this case, however, Petitioners have adopted the latter rather

ss the former, as the source of their substantive definition of

i rty. | In their brief petitioners make no reference to an

preexisting natural right to engage in homosexual conduct na

only to an evolutionary conventional right derived from the wa

people live — “Today, family lives centered on Siam

relationships are apparent in households and communities

throughout the country” (Pet. Brief at 16) — and reinforced b

selected opinions of sociological and seuieainatied

professionals — “Mental health professionals have universal]

rejected the erroneous belief that homosexuality is a disease .

Id. at 16. Such a view of liberty may support a gay and lesbian

political agenda, but it provides no support whatsoever for the

establishment of a constitutional right.

To the contrary, liberty — when used in a constitution — is

not a sociological or psychological term. Rather, it is a legal

term, and as established in Part I. A. above, a legal term

unchangeable by ordinary means, and thus determined by its

Original meaning, not by any evolutionary process. At the time

of America’s founding, a “natural liberty of mankind” was

constrained by “the law of nature.” I W. Blackstone

Commentaries on the Laws of England 121 (U. Chi. F acsimile

Ed.: 1765). The law of nature, in turn, was the will of the

24

Maker of the universe and of all mankind, as revealed in nature;

and no human laws could be of any validity if contrary to this

original law. /d. at 39-40, 41. According to the “law of

nature,” sex between human beings of the same sex was a

“crime against nature,” deserving punishment, not

commendation. IV W. Blackstone’s Commentaries at 215-16.

Thus, if this Court should affirm petitioners’ claim that the

substantive meaning of liberty in the Fifth and Fourteenth

Amendment’s Due Process clauses has evolved to include

freedom of choice to engage in homosexual sex — determined

at the time the Constitution was ratified to be a “a disgrace to

human nature” and “a crime not fit to be named” (IV

Blackstone’s Commentaries at 215-16) — then it would be

rejecting the divine source of rights upon which this nation was

founded. See Titus, “Defining Marriage and the Family,” 3

Wm. & Mary Bill of Rights J. 327, 337-41 (1994).

This Court got it right in Bowers, when it ruled that liberty

could not possibly be construed to embrace a right to engage in

homosexual conduct in light of the historic fact that “[s}odomy

‘was a criminal offense at common law and was forbidden by

the laws of the original 13 States when they ratified the Bill of

Rights.” Bowers, 478 U.S. at 192. To have ruled otherwise,

would have made a mockery of the founder’s understanding

that the very essence of a written constitution is to preserve the

people’s “original right to establish, for their future

government, such principles as, in their opinion, shall most

conduce to their own happiness” and that of their posterity. See

Marbury v. Madison, supra, 5 U.S. at 176.

= ——_ ae

25

Ill. THE EQUALITY PRINCIPLE OF THE

FOURTEENTH AMENDMENT DOES NOT

PROHIBIT A LAW DISCRIMINATING

BETWEEN HOMOSEXUAL AND

HETEROSEXUAL CONDUCT.

After having devoted the first 22 pages of their Argument to

the claim that Texas Code Section 21.06 denies to “gay and

lesbian Americans” the same freedom of choice “as

heterosexuals in private consensual sexual intimacy” (Pet. Br.

at 16), Petitioners have invested their concluding 18 pages to

the claim that gay and Jesbian Americans are being

discriminated against for engaging in an activity in which they

have no choice. Indeed, the explicit premise of the petitioners’

equal protection argument is that neither homosexuals nor

heterosexuals have any real choice over their sexual lives, they

are just differentially sexually oriented:

There are no valid concerns of the government here that

correlate with sexual orientation, which is a deeply rooted

personal characteristic that we all have. [Pet. Br. at 39.]

Thus, petitioners have contended that while ostensibly the

Texas statute condemns homosexual conduct, in reality, it

“brand[s} gay citizens as criminals by virtue of their sexual

orientation.” Pet. Br. at 41.

According to this line of reasoning, there can be no possible

moral foundation for Texas to discriminate between

homosexuals and heterosexuals. After all, no one can -be

condemned for behaving in the way that he or she has been

26

programmed to behave.'? Therefore, one cannot but conclude

that the Texas legislature has enacted Texas Code Section 21.06

solely on the basis of a majority heterosexual’s “negative

attitude toward those with a particular personal characteristic,”

not because of any true “moral” condemnation. Pet. Br. at 39.

The first problem with petitioners’ argument is that they have

assumed the very thing that they must prove, namely, that

sexual orientation is an immutable characteristic implanted at

birth like the color of one’s skin or sex, in order to sustain their

claim that they are being denied equal protection of the laws.

See, City of Cleburne v. Clebume Living Center, 473 U.S. 432

(1985). The second problem is even more fundamental.

Petitioners must prove that one’s sexual orientation absolutely

compels one to engage only in sexual intercourse consistent

with that orientation. Otherwise, the Homosexual Conduct Law

is no more a condemnation of a person’s homosexual

orientation than a murder statute is a condemnation of a

person’s homicidal orientation.

Not surprisingly, petitioners have attempted neither task.

Instead, they have subtly shifted the burden of having to prove

a violation of the equal protection clause, placing the burden on

Texas that Section 21.06 does not violate equal protection

principles.

2 Instead, Petitioners believe that the ones who should be condemned are —

those who offer “discredited ‘therapies’ to ‘change’ the very sexual

orientation of gay adults [for] continu{ing] th{e] destructive pathologizing

of gay citizens.” Pet. Br. at 46. By enacting Texas Code Section 21.06, the

Texas legislature should also be condemned for “brand[ing] gay persons, as

second-class citizens and legitimiz[ing] discrimination against them in all

aspects of life.” Pet. Br. at 40-41.

27

A. Having Failed to Negative Any Conceivable Rational

Basis for Texas Code Section 21.06, Petitioners Have

Failed to Meet Their Burden t

Destestion Visietten. 0 Prove an Equal

- — to Petitioners, “[u)nder the Equal Protection

ause, the classification — the different treatment of different

_— — ... must be justified” by the State. Pet. Br. at 34.

wus, they have contended, Texas must justify its decision to

criminalize “deviate sexual intercourse” between persons of the

same sex, but not such intercourse between persons of the

opposite sex. After reviewing the T inetificasi

petitioners have concluded: . exas justifications,

oan = —_ lan the majority’s negative

should end the matter with a ruling of m = id tha

(Pet. Br. at 40.] CO Seay.

Petitioners have grossly misstated the law. Fi

petitioners’ contention, Texas does not stays road

justify its having distinguished between homosexual and

heterosexual conduct in criminalizing deviate sexual

intercourse. To the contrary, the very case cited by the

petitioners in support of their argument that Texas bears the

burden of justification says just the opposite:

[T]he State need not articulate its reasoning at the moment

a particular decision is made. Rather, the burden is upon

— hy _" to io “any conceivable state of

yaw! Ay- pro a rational basis for the

Garrett, 531 U.S. 356, 366-67 (2001).] E

Second, “under rational-basis review, where a group

28

possesses ‘distinguishing characteristics relevant to interests the

State has the authority to implement,’ a State’s decision to act

on the basis of those differences does not give rise to a

constitutional violation.” /d. In this case, petitioners have not

shown that its differential treatment of homosexual and

heterosexual deviate intercourse is not permissible to reinforce

the moral foundation of its family policy that permits

heterosexuals, but not homosexuals, to marry. See Lawrence v.

Texas, 41 S.W.3d 349, 354 (2001), citing Grigsby v. Reib. 105

Tex. 597, 607, 153 S.W. 1124, 1129 (Tex. 1913). If the

benefits of marriage may be withheld on such a differentiated

basis, then so can different burdens be imposed upon the two

classes because they are not similarly situated. See, e.g.,

McDonald v. Board of Election Commissioners of Chicago,

394 U.S. 802, 807-11 (1969).

B. Having Failed to Show that Section 21.06 Has No

Legitimate Purpose, Petitioners Have Failed to

Sustain Their Burden to Prove an Equal Protection

Violation.

Petitioners have argued that “Section 21.06 ... use[s] a sexual-

orientation-based classification.” Pet. Br. at 32, n. 24. It does

not. The phrase “sexual orientation” does not appear in the

statute, and thus, is not an element of the offense. A person

whose sexual orientation is heterosexual may be convicted of

the crime of deviate sexual intercourse, just the same as a

"3 According to Grigsby, Texas marriage policy is rooted not in societal

mune but in a system of “duties and obligations that have existed ...

before civil government was formed”: “[A)] status ordained by God, the

foundation and support of good government, and absolutely necessary to the

purity and preservation of good society.” /d., 153 S.W. at 1129, 1130. See

also Titus, “Defining Marriage and the Family,” supra, 3 Wm. & Mary Bill

of Rights J. at 342-43.

29

person whose orientation is homosexual. Lawrence v. Texas,

supra, 41 S.W.3d at 353. To prove otherwise, petitioners must

show that persons with a heterosexual orientation would never

engage in sexual intercourse with a person of the same sex.

Petitioners have suggested that such is the case, but they have

offered no such evidence. Pet. Br. at 32-34. Because

petitioners have failed to show that people’s behavior is fixed

by their sexual orientation, petitioners’ case that Section 21.06

violates the equal protection clause by discriminating against

. persons with a same-sex orientation fails miserably.

In order, then, for petitioners to make a case, they must prove

that the Texas legislature acted with an illegitimate purpose.

Other than making the bald assertion that the Homosexual

Conduct Law has “targeted” gay people, petitioners have rested

their case of purposeful discrimination on “a century-long

history of discrimination against gay Americans.” Pet. Br. at

41,46. Thus, petitioners have argued that “even in the absence

of actual arrest and prosecution, the Homosexual Conduct Law

labels gay men and lesbians as criminals and legitimates

discrimination against them on that basis.” Pet. Br. at 44. One

could say the same thing about laws prohibiting incest,

adultery, bestiality, and adult sex with children. After all,

according to petitioners’ world view those who engage in such

crimes are only acting in the way that their particular

orientation compels them. One might even say the same thing

about laws prohibiting murder, theft, or any other of a host of

statutes prohibiting certain conduct.

At bottom, petitioners’ argument denies that, with regard to

sexual behavior, there are moral choices, only preferences

predetermined by “a deeply rooted personal characteristic,” a

“status” for which none may be held responsible. See Pet. Br.

at 39-40. Ironically, by making this claim they are reducing

themselves and all other human beings — at least in relation to

30

sexual behavior — to something less than human, which is a

distortion of the original purpose of the equa! protection clause.

As Justice John Marshall Harlan put it, in his dissenting

opinion in Plessy v. Ferguson, 163 U.S. 537 (1896), the equal

protection clause was designed to guarantee that the law will

“regard[] man as man.” /d., 163 U.S. at 559. Petitioners have

argued otherwise, pressing this Court to adopt their

deterministic views about sexual behavior. It is one thing for

a state legislature to embrace such an agenda; it is quite another

for this Court to enshrine as part of the Fourteenth

Amendment’s equality principle the notion that adults are so

helplessly in bondage to a sexual proclivity that no legitimate

moral judgment can be made about their sexual actions — so

long, of course, as those actions are consensual and private.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals of Texas, Fourteenth District, should be upheld.

Respectfully submitted,

PERRY B. THOMPSON HERBERT W. TITUS *

CONSERVATIVE LEGAL WILLIAM J. OLSON

DEFENSE AND EDUCATION WILLIAM J. OLSON, P.C.

FUND Suite 1070

629 High Knob Road 8180 Greensboro Drive

Front Royal, VA 22630 McLean, VA 22102

(540) 305-0012 (703) 356-5070

MICHAEL Boos

CITIZENS UNITED FOUNDATION

Suite 210

109 Carpenter Drive

Sterling, VA 20164

(703) 464-8572

*Counsel of Record

Attorneys for Amici Curiae

February 18, 2003