Amicus Curiae Brief — Lawrence v. Texas

[ Supeene Gout, US.

FILED

No. 02-102 FES 38 ee

In The [ nietPsee

Supreme Court of the Anited States

+

JOHN GEDDES LAWRENCE AND TYRONE GARNER,

Petitioners.

Vv.

STATE OF TEXAS,

Respondent.

On Writ Of Certiorari To The

Court Of Appeals Of Texas,

Fourteenth District

BRIEF OF AMICI CURIAE TEXAS LEGISLATORS,

REPRESENTATIVE WARREN CHISUM, ET AL.,

IN SUPPORT OF RESPONDENT

.

Scott ROBERTS KELLY SHACKELFORD

1206 Oakwood Trail Counsel of Record

Southlake, Texas 76092 HIRAM S. SASSER III

(817) 424-3923 LIBERTY LEGAL INSTITUTE

903 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

ce

Amici are:

Texas Legislators:

Representative Warren Chisum;

Representative Will Hartnet,

Chair, House Committee on Judicial Affairs;

Representative Diane Delisi;

Representative Mary Denny;

Representative Rob Eissler;

Representative Mike Flynn;

Representative Toby Goodman;

Representative Mike Hamilton;

Representative Anna Mowery;

Representative Beverly Wooley;

Representative Geanie Morrison,

Representative Phil King;

Representative Carl Isett;

Representative Charlie Howard;

Representative Leo Berman;

Representative Dwayne Bohac;

Representative Dennis Bonnen;

Representative Betty Brown;

Representative Scott Campbell;

Representative Dan Gattis;

Representative Bob Griggs;

Representative Jim Dunnam;

Representative Gary Elkins;

Representative Glen Hegar:

Representative Ruben Hope;

Representative Bryan Hughes;

Representative Elizabeth Ames Jones;

Representative Bill Keffer;

Representative James Keffer;

Representative Jodie Laubenberg;

Representative Jerry Madden;

Representative Kenny Marchant;

Representative Jim McReynolds;

Representative Ken Mercer;

Representative Sid Miller;

Representative Ken Paxton;

Representative Larry Phillips;

Representative Jim Pitts:

Representative Gene Seaman;

Representative Burt Solomons;

Representative Jack Stick;

Representative David Swinford;

Representative Robert Talton;

Representative Larry Taylor;

Representative Corbin Van Arsdale;

Representative Buddy West;

Representative Arlene Wohlgemuth;

Representative Bill Zedler;

Representative Frank Corte;

Representative Peggy Hamric;

Representative Talmadge Heflin;

Representative Harvey Hilderbran;

Representative Fred Hill;

Representative Brian McCall;

Representative Joe Nixon;

Representative Elvira Reyna;

Representative Allan Ritter;

Representative Wayne Christian;

Representative Wayne Smith;

Representative Tony Goolsby;

Representative Bryon Cook;

Representative Edmund Kuempel;

Representative Fred Brown;

Senator Bob Duell;

Senator John Carona;

Senator Craig Estes;

Senator Mike Jackson;

Senator John Lindsay;

and Senator Florence Shapiro.

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE...................000ccceeceee+ 1

SUMMARY OF ARGUMENT .......................ccesseeeeeeees 1

PEITIIIEET sinnnctnncncncsnduneiiniieiiiecininnedddenmniaapdeninidiiinbien 3

I. PETITIONERS HAVE ESTABLISHED NO

CONSTITUTIONAL VIOLATION .......000000000...... 3

A. The record and law do not support a right

SO tcntsntcnsnmeniiecnninenninnene 5

iy EIT rsncnstencuintiigeeapnttemeieatnanenicdibiiniiinis 5

Bs TNE iiaccicieicannicnniedbinindainnindsimiennniiendenaicy 6

B. The record and law do not support an

equal protection claim ......................cc000 11

Il. SECTION 21.06 IS CLEARLY RATIONAL.... 12

A. Section 21.06 was not the product of

Bi isicctsintcnisinsnietsnianiteniaiininiigngiinainaaiindiaiaiiipanidaies 12

B. Petitioners attempt to shirk their duty to

negate all possible rational bases for

§ 21.06 by distracting the Court.............. 15

C. Section 21.06 is rationally related to

protecting the public health .................... 15

D. Section 21.06 is rationally related to

promoting marriage and procreation....... 17

1. Promoting marriage is important ........ 18

2. Section 21.06 is part of a myriad of state

laws promoting marriage and discourag-

ing sexual activity outside of it ................. 20

ii

TABLE OF CONTENTS - Continued

Page

III. JUDICLAL INTERVENTION INTO CONTES-

TED POLITICAL QUESTIONS DISRUPTS

THE PROPER POLITICAL STRUCTURE AND

ili

TABLE OF AUTHORITIES

Page

CASES

Ah Sin v. Wittman, 198 U.S. 500 (1905)................cccccceeeeees 9

Baker v. Wade, 774 F.2d 1285 (5th Cir. 1988).................... 12

Bender v. Williamsport Area Sch. Dist., 475 U.S.

EE eT eee ee ea 4

Board of Trustees of Univ. of Ala. v. Garrett, 531

8 eee es 14, 25

Bowers v. Hardwick, 478 U.S. 186 (1986)............... 8, 10, 11

Caminetti v. United States, 242 U.S. 470 (1917)................ 7

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

eee ae ne 6, 8, 10, 11

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ..........0000+. 15

City of Sherman v. Henry, 928 S.W.2d 464 (Tex.

A re eee NIT 18, 23

Compassion in Dying v. Washington, 79 F.3d 790

I iii aah cient eetlaacleneiic tiie einen 7

Dandridge v. Williams, 397 U.S. 471 (1970) .................... 24

Davis v. Beason, 133 U.S. 333 (1890) ..............ccccccceceeeeeeeees 7

Department of Agriculture v. Moreno, 413 U.S. 528 |

TT itr esatianinaiarin iano inaaticatinaeaigineante detain bniamaaiaieae 15

England v. Louisiana Bd. of Med. Exam’rs, 375

Series HUTTE TT cciciitctentchaiitniaineneaibiteeiasnisiutpeneceniieunidetiedieemenseninns 4

Eisenstadt v. Baird, 405 U.S. 438 (1972) ................00006 7,10

Equality Foundation of Greater Cincinnati, Inc. v.

City of Cincinnati, 128 F.3d 289 (6th Cir. 1997),

cert. denied, 525 U.S. 943 (1998) ............csssccccsesereeseeees 14

iv

TABLE OF AUTHORITIES -— Continued

Page

Fasken v. Fasken, 260 S.W. 701 (Tex. 1924) .........::cccceeeeee 22

FCC v. Beach Communications, Inc., 508 U.S. 307

(0 Eee ee 15

Flemming v. Nestor, 363 U.S. 603 (1960) ..........ccccceeeeees 15

Garcia v. San Antonio Metro., 469 U.S. 528 (1985) .......... 27

Griffith v. Connecticut, 218 U.S. 563 (1910)... 9

Griswold v. Connecticut, 381 U.S. 479 (1965)........... 7, 8,10

Harte-Hanks Communications v. Connaughton, 491

TREE Gar Carin... cncansysennnnpsnnennsnasinansnaieisenmenmenesenesen 13

Heller v. Doe, 509 U.S. 312 (1993) .......ccccccecceeceeeeeeeeeeenenees 15

Moke v. United States, 227 U.S. 308 (1913)..........:cccccceeeeees 6

Holder v. State, 35 Tex. Crim. 19 (1895)...........:ccccceeeeeeerees 18

International Bd. of Teamsters, Chauffeurs, Ware-

housemen and Helpers Unions v. Denver Milk

Producers, Inc., 334 U.S. 809 (1948).........ccccccccceeeeeeeeeeeee 4

James v. Strange, 407 U.S. 128 (1972).........cccccceeeeereeeeeeees 24

Katzenbach v. McClung, 379 U.S. 294 (1964) .........ccc008 16

L’Hote v. New Orleans, 177 U.S. 587 (1900)..........cccccceeeeeee is)

Littleton v. Prange, 9 S.W.3d 223 (Tex. App. - San

Antonio 1999, pet. denied), cert. denied, 531 U.S.

III. -ncccedsnccsnonersnenscnescstnnnnsinasseseninnnassuccsnenseneunneanens 23

Lottery Case, 188 U.S. 321 (1903)...........006 ceseseeeeeeenereeerenes 7

Loving v. Virginia, 388 U.S. 1 (1967).........:cccecereeeerereees 10

Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976), cert.

denied, 429 U.S. 977 (1977) ...ccccccccccccccceeceeeseteeeeeeereeeeeeees 5

TABLE OF AUTHORITIES - Continued

Page

Ludwig v. State, 931 S.W.2d 239 (Tex. Crim. App.

Sree esséstattiniasinciatniaiciabieiiuinstintulibaipinianeatnaiatiettinineemmensenael 22

Massachusetts Bd. of Retirement v. Murgia, 427

ee eI iasiciniaireniertininteeiiaitinhibiiineiniinetinnieiecensmininemel 21

Mazique v. Mazique, 742 S.W.2d 805 (Tex. App. -

Houston [1st] 1987, no writ) ..................ccccceeecceseeeeee 22, 23

McLaughlin v. Florida, 379 U.S. 184 (1964)............0..cc0008 6

Meyer v. Nebraska, 262 U.S. 390 (1923)............:ccccccc00e 8, 10

Miller v. California, 413 U.S. 15 (19738) ..........ccccccccceeeeeeees 9

Minnesota v. Martinson, 256 U.S. 41 (1921) .............cc0000 )

Moore v. Moore, 22 Tex. 237 (1858)............:ccccceccceceeseeeseeeees 18

Murff v. Murff, 615 S.W.2d 696 (Tex. 1981)...............000006: 23

Murphy v. California, 225 U.S. 623 (1912) ..............ccccceeees 7

New York v. New Jersey, 256 U.S. 296 (1921) ...............06. 26

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)........... 6

Pierce v. Society of the Sisters of the Holy Name of

Jesus & Mary, 268 U.S. 510 (1925) .0........ccccceeeeeeeeees 8, 10

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ........... 8

Poe v. Ullman, 367 U.S. 497 (1961)............cccccceeeeeeeeees 10, 20

Prince v. Massachusetts, 321 U.S. 158 (1944)..............0.0.. 10

Railroad Retirement Bd. v. Fritz, 449 U.S. 166

TET heresienivnseeibaieianininabesnpentetebnbeesneiimimerienmnecssectonecenemenee 15

Reynolds v. United States, 98 U.S. 145 (1879) ............00006 9

Roberts v. Roberts, 192 S.W.2d 774 (Tex. 1946).«.............. 18

Roe v. Wade, 410 U.S. 113 (1973)........cccccccccseeeeeeeneeeeeees 8, 10

Romer v. Evans, 517 U.S. 620 (1996) ..........0....0005. 12, 13, 14

vi

TABLE OF AUTHORITIES -— Continued

Page

Roschen v. Ward, 279 U.S. 337 (1929) .........cccccccsseeesereereees 24

Schlueter v. Schlueter, 975 S.W.2d 584 (Tex. 1998)........... 22

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

BD CI ecccnsctnsconssecsnesaneusnssncapmnpsssamannsnapsenresinsamapsiasion 10

Sosna v. Iowa, 419 U.S. 393 (1975) ........ccccccceceeeeteeeeeeeeeeees 25

Southern Surety Co. v. Oklahoma, 241 U.S. 582

CT cconcensceneseussnsneneconsnactinnanenniensimcnnsaneteninanincsenmumininess 6

State v. Smith, 766 So.2d 501 (La. 2000)...........ccccceeeeeeeeees 28

Texas Employers Insurance Association v. Elder,

282 S.W.2d 371 (Tex. 19665) ...................cccccccrcccrssssscesesees 18

Torme v. State, 525 S.W.2d 9 (1975) .......ccccccccssceeeeeeeeeeeneeees 6

Townsend v. Sain, 372 U.S. 293 (1963) ..........cccceeeeeeeeeeeeeees 4

Troxel v. Granville, 530 U.S. 57 (2000)...........cccccceceeeeeeeeeees 8

United States v. Salerno, 481 U.S. 739 (1987) .......... 5,6, 12

United States v. Lopez, 514 U.S. 549 (1995)............cceeeeeees 16

Vacco v. Quill, 521 U.S. 793 (1997).........cccceeceeeeceeeeeeeeeeeeeees 9

Waldrop v. State, 41 Tex. Crim. 194 (1899)............:cc:ceeeee 18

Washington v. Glucksberg, 521 U.S. 702 (1997).............. 7,9

Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978)............... 21

Young v. Young, 609 S.W.2d 758 (Tex. 1980)...........:c.cee 23

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

Ci cxncececcnsnennnccnntosecesonesecssnesnnnnincnanensesmeatasenensetens 26

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .............. 4

Vii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

ee I Me peincecitienehiciiiictnaesitatininiaeuaasa teas 18

UIE, TRUE, CES © BE ose sc seecesceccsncsscssccZeccccccccsceseces 20, 23

See Rs I Bel isciiessicssensnireticnccininnnicnsiictinaniniasiteiansaeni 23

IE SR LO ee ae TT 21

I 21

Te i 22

ee Ne 23

eee ae. 23

ERE LS RAR Lee 23

TEX. HEALTH & SAFETY CODE § 85.007 ........cceccccccecee. 16, 21

TEX. PENAL CODE § 12.47 ................cccccccccoccccssssscscsssccssesees 14

TEX. PENAL CODE § 21.06...............cccccccccccccoscsoscocseees passim

emi BURAE, COUT § GBD onnncsccccccessccccccccscccscosnccccsncc cocescees 23

eee Bes COTE BBG oainesccsccencecceeescecsccnccccencenocensosecees 23

BUR, PUBGAL, CORE § BGG ...nnacecccesccececcsccecsssccscesccocecsensencese 23

Sa Ce eee 21

| CTT 23

pe LL, a Se 23

EE a , 21

SS EEA A Oe 22

EL Save RE eo 22

Vili

TABLE OF AUTHORITIES -— Continued

OTHER SOURCES

Catherine E. Ross & Chloe E. Bird, Sex, Stratifica-

tion and Health Lifestyle: Consequences for Men’s

and Women’s Perceived Health, 35 JOURNAL OF

HEALTH AND SOCIAL BEHAVIOR, 161-78 (1994).......

CDC Basic Statistics, Division of HIV/AIDS Pre-

ER ar ee aoe Oa ee A Fane

Corey L. M. Keyes, The Mental Health Continuum:

From Languishing to Flourishing Life, 43 JOUR-

NAL OF HEALTH AND SOCIAL BEHAVIOR, 207-22

CE ccccssccenccececscscsnectensnesssnsqnensencousevenesenscoosssessesatese

Elizabeth H. Gorman, Bringing Home the Bacon:

Marital Allocation of Income-Earned Responsibil-

ity, Job shifts, and Men’s Wages, 61 JOURNAL OF

MARRIAGE AND THE FAMILY, 110-22 (1999)..............

Health Consequences of Marriage for the Retirement

Years, 21 JOURNAL OF FAMILY ISSUES No. 5, 559-

BB ctetcstnnaresrenittianinniemnninnennennmennne

House Bill 587, codified at TEX. PENAL CODE. § 12.47...

Legislative Research Library of Texas, Researching

Legislative History and Intent, Step 4: Listen to

tape recordings of legislative discussion. <www.Irl.

state.tx.us/legis/intent/intentStep4. html ...............

P. M. Prior & B. C. Hayes, Marital Status and Bed

Occupancy in Health and Social Care Facilities

in the United Kingdom, 115 PUBLIC HEALTH,

BBB-BS CBOE )..nccrcccccccccecscccccsncsssssrenscncvensssseosesesscscceses

Samuel Adams, Letter to Richard Henry Lee, 3

Dec. 1787, in The Writings of Samuel Adams

4:324 (Harry A. Cushing ed. 1968) ...............::ceeeeeeee

Page

ix

TABLE OF AUTHORITIES - Continued

Scott J. South & Kyle D. Crowder, Escaping Dis-

tressed Neighborhoods Individual, Community,

and Metropolitan Influences, 102 AMERICAN

JOURNAL OF SOCIOLOGY, 1040-84 (1997)

Texas HIV/STD Annual Report 2001, 9 (Texas

Dept. of Health Bureau of HIV & STD)

THE FEDERALIST NO. 51, at 349 (J. Madison) (J.

Cooke ed., 1961)

SOOO HEHEHE EEE EEE EEE EEE EEE EEE EEE EE EEE EEES

Page

INTEREST OF AMICI CURIAE'’

Amici are Texas Senators and Representatives who

represent the people of Texas. Amici believe this case is

about the right of the people and their duly elected repre-

sentatives to determine State policy regarding marriage,

the family and sexual conduct outside of marriage. The

variety of State laws and policies on this contentious issue,

and the changing nature of these laws within the States is

a sign of the health of our democratic republic.

Petitioners ask the Court to take this issue out of the

public debate and discussion and determine for all States

a deeply controversial public policy issue found nowhere in

the Constitution. Amici believe this would be a serious

mistake and would have implications far broader than the

statute in this case. Because of Amici’s more complete

understanding of the Texas laws and legislative history

and Amici’s understanding of additional State interests to

support the challenged law, Amici believe their brief will

be of assistance to the Court.

e

SUMMARY OF ARGUMENT

There is no evidence in the record to support petition-

ers’ claims. There is no evidence as to whether the anal sex

was non-consensual or consensual, private or in front of

’ The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court’s Rule 37.6, none of the counsel for the parties authored this brief

in whole or in part and no one other than amici or their counsel

contributed money or services to the preparation and submission of this

brief.

2

others, for pay or not, or by people too close in relation

(incest). There is also no record of the sexual orientation of

either of the men. The Court is being asked to issue an

opinion based on hypothetical facts. Both claims should be

dismissed as improvidently granted.

Petitioners seek a new “right of privacy” in sexual

behavior, not the traditional right grounded in rights of

marriage and procreation. There is no natural limitation

to the new expansive right sought by petitioners. It is not

deeply rooted in the nation’s traditions and history and

should be rejected.

Petitioners and their amici attempt to attach a badge

of hatred to the Texas Legislature. Despite hours and

hours of tapes of the hearings and testimony on TEX.

PENAL CODE § 21.06 in the 1973 session and many subse-

quent sessions as well, not one single source of corroborat-

ing evidence from the vast legislative record is offered.

Indeed, there are numerous rational bases supporting

§ 21.06, including the protection of public health and the

promotion of marriage and procreation.

The act of homosexual sodomy reaps tremendous

public health consequences, much more than heterosexual

sodomy. Texas is certainly rational in attempting to

discourage conduct leading to a lopsided proportion of the

harm. Texas is also rational in promoting marriage and

procreation and discouraging sexual conduct outside of

marriage. Texas has a myriad of laws favoring marriage

and discouraging sexual activity outside of marriage.

Section 21.06 is one part of a system of laws including

laws disfavoring adultery, banning polygamy and sex

education requirements that sex outside of marriage,

including homosexual sodomy, be discouraged. Promoting

marriage and encouraging and funneling sexual activities

3

to within its bonds meets rational basis. Each of the

arguments of petitioners, if accepted, would have serious

implications for the marriage laws of every State.

| Decisions regarding marriage, the family and appro-

priate sexual behavior should be left to the States, as they

have been for over 200 years. The Court is being asked to

inject itself into the middle of a fractious political debate,

which petitioners themselves concede is changing in their

favor in State after State. Taking the issue out of the

public debate and discussion and determining for all

States a deeply controversial public policy issue would be a

serious mistake and would harm the Court and this

nation.

+

ARGUMENT

I. PETITIONERS HAVE ESTABLISHED NO CON-

STITUTIONAL VIOLATION.

Petitioners’ entire case rests on the argument that

consensual, private, non-commercial sex is protected by

the Constitution and that petitioners were discriminated

against because they are homosexuals. Yet, there is abso-

lutely no record of any of the facts alleged by petitioners

and their amici, save the following: two adult males - a

55-year-old white male (John Lawrence) and a 31-year-old

black male (Tryon Garner) were found by police officers in

the act of anal sodomy inside the apartment where Law-

rence resides. Pet. App. 129a, 14la. The two probable

cause affidavits, both authored by Officer Quinn, the only

source of facts for the record in this case, read as follows:

Officers dispatched to 794 Normandy #833 refer-

ence to a weapons disturbance. The reportee

4

advised dispatch that a black male was going

crazy in the apartment and he was armed with a

gun.

Officers met with the reportee who directed offi-

cers to the upstairs apartment. Upon entering

the apartment and conducting a search for the

artres suspect, officers observed the defendant

enga,2d in deviate sexual conduct namely, anal

sex, with another man.

There is no evidence in the record that the anal inter-

course was consensual, no evidence that it was non-

commercial, no evidence of their degree of relation (incest)

and no evidence that it was not done in the presence of

other people. There is also no record of the sexual orienta-

tion of the men.

The dearth of facts in the record is especially trou-

bling considering that “(i]t is the typical, not the rare, case

in which constitutional claims turn upon the resolution of

contested factual issues.” Townsend v. Sain, 372 U.S. 293,

312 (1963). Disputed factual issues drive constitutional

decisions. See Bender v. Williamsport Area Sch. Dist., 475

US. 534, 543 n. 5 (1986) (“[w]e have frequently recognized

the importance of the facts and the factfinding process in

constitutional adjudication.”). Factual records are essen-

tial to constitutional deliberation. England v. Louisiana

Bd. of Med. Exam’rs, 375 U.S. 411, 416 (1964) (“How the

facts are found will often dictate the decision of federal

claims”). The lack of a factual record to support petitioners’

claims is of great significance. See, e.g., Zelman v. Sim-

mons-Harris, 536 U.S. 639, 122 S. Ct. 2460, 2477 (2002)

(O'Connor concurring) (“there is no record evidence that

any voucher-eligible student was turned away from a

nonreligious private school in the voucher program”);

International Bd. of Teamsters, Chauffeurs, Warehousemen

5

and Helpers Unions v. Denver Milk Producers, Inc., 334

U.S. 809 (1948) (per curiam) (“Because of the inadequacy

of the record, we decline to decide the Constitutional

issues involved.”). Without a factual record supporting

petitioners’ claims, this Court would be forced to render an

advisory opinion in a vacuum. The case should be dis-

missed as improvidently granted.

A. The record and law do not support

of privacy claim. lhe ae

1. The record.

Petitioners refer to “adults’ private, consensual

choices.” Petitioners Brief at 9, Lawrence (No. 02-102).

There is no record, however, that petitioners’ sexual

activity was done in private. It could have been done in

front of other people. See Lovisi v. Slayton, 539 F.2d 349

351-52 (4th Cir. 1976), cert. denied, 429 U.S. 977 ( 1977)

(even marital right of privacy is waived when an onlooker

is welcomed). Petitioners also may have desired to be

caught in order to create standing to challenge § 21.06.”

Petitioners, in light of the absence of any facts in the

record to support their claims, may only make a facial

challenge. Under United States v. Salerno, a party seeking

facial invalidation of a statute “must establish that no set

of circumstances exists under which the Act would be

* It is rare indeed for an “anonymous” caller making

: ; false report

to conveniently wait for the police to show them directly to the reom

report would be discovered. These facts strongly suggest that the men

1 the

7

:

E

!

6

valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

Petitioners cannot meet this burden. For example, § 21.06

applies to non-consensual sodomy. See, e.g., Torme v. State,

525 S.W2d 9 (1975). Would non-consensual sodomy be

protected as a “right of privacy” of the perpetrator? Of

course not. Likewise, the conduct could have been for pay,

incestuous or in front of others. These applications of the

law would make it constitutional under the Salerno

standard. With such a sparse record, this case was either

improvidently granted or should be summarily affirmed.

2. The law.

Additionally, even if a record had existed, the right of

privacy is not absolute. States are not completely prohib-

ited from regulating some aspects of intimate relation-

ships. See Carey v. Population Services Int'l, 431 U.S. 678,

689 n. 5 (1977) (“we do not hold that State regulation must

meet this standard ‘whenever it implicates sexual free-

dom,’ .. . or ‘affect{[s] adult sexual relations’”); Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 68 (1973) (“but for us to

say that our Constitution incorporates the proposition that

conduct involving consenting adults only is always beyond

State regulation, is a step we are unable to take”). As this

Court noted in Paris Adult Theatre I, “State statute books

are replete with constitutionally unchallenged laws

against prostitution, suicide, voluntary self-mutilation,

brutalizing ‘bare fist’ prize fights, and duels, although these

crimes may only directly involve ‘consenting adults.’” Jd. at

69 n. 15.’ Bigamy involves consenting adults, intimate

* (“Consider also the language of this Court in McLaughlin v.

Florida, 379 U.S. 184, 196 (1964), as to adultery; Southern Surety Co. v.

Oklahoma, 241 U.S. 582, 586 (1916) as to ‘ornication; Hoke v. United

(Continued on following page)

7

sexual relationships and privacy of the home, yet States

are free to outlaw the practice. See Davis v. Beason, 133

U.S. 333, 344-45 (1890). If bodily integrity, intimate

personal decisions and adult consent were ever wrapped

up into a single right, it would be the right for a person to

choose to end their own life. See Compassion in Dying v.

Washington, 79 F.3d 790, 813-814 (9th Cir. 1996) (“Like

the decision of whether or not to have an abortion, the

decision how and when to die is one of ‘the most intimate

and personal choices a person may make in a lifetime,’ a

choice ‘central to personal dignity and autonomy’”). Yet

this Court specifically refused to acknowledge a funda-

mental right to die. See Washington v. Glucksberg, 521

U.S. 702, 728 (1997). There is, very simply, no fundamen-

tal right to engage in homosexual sodomy deeply rooted in

our nation’s traditions and history.

Petitioners attempt to wrap their claims in cases such

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

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

correctly quote Eisenstadt for the proposition that “if the

right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally

affecting a person.” Eisenstadt, 405 U.S. at 453; Petition-

ers’ Brief at 12, Lawrence (02-102). However, petitioners

fail to complete the quotation by including “as the decision

whether to bear or beget a child.” Jd. The cases relied on

by petitioners to support their “right of privacy” argument

States, 227 U.S. 308, 320-322 (1913), and Caminetti v. United

. , . States,

242 U.S. 470, 484-487, 491-492 (1917), as to ‘white slavery;’ Murphy v.

California, 225 U.S. 623, 629 (1912), as to billiard halls; and the Lottery

Case, 188 U.S. 321, 355-356 (1903), as to gambling”).

8

revolve around a common theme of decisions regarding

marriage, raising children and procreation. See, e.g.,

Troxel v. Granville, 530 U.S. 57 (2000) (“fundamental right

of parents to make decisions concerning the care, custody,

and control of their children”); Planned Parenthood v.

Casey, 505 U.S. 833 (1992) (decisions regarding childbear-

ing); Carey, 431 U.S. 678 (1977) (decisions regarding

childbearing); Roe v. Wade, 410 U.S. 113 (1973) (decisions

regarding childbearing); Griswold, 381 U.S. 479 (decisions

regarding procreation within marital relationship); Pierce

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

268 U.S. 510 (1925) (decisions regarding the upbringing

and raising of children); Meyer v. Nebraska, 262 U.S. 390

(1923) (decisions regarding the upbringing and education

of children). There is a certain cohesion among the deci-

sions of this Court that compel petitioners to show some-

thing more than just an asserted right to do as one wishes.

Petitioners cite these cases while inviting the Court to

ignore their holdings. Decisions regarding marriage and

procreation receive special protection from this Court.

Other individual choices among consenting adults do not,

and it is no legal reason to change this law because peti-

tioners theorize one generation is obtuse while the next

becomes enlightened. Therefore, the decisions petitioners

rely on should not be read in a vacuum but should be

understood for what they really are; they represent not “a

series of isolated points,” but rather a group of rights

protecting the rights of couples, whether married or

unmarried, to choose when and how they will raise chil-

dren, which is the most important decision for any society.

Casey, 505 U.S. at 848.

There is precedent, of course, for a State to constitu-

tionally criminalize private, consensual sodomy. See Bowers,

478 U.S. 186. Other examples of private, consensual, adult

9

activity that the State may prohibit include polygamy,

bigamy, polyandry, the dissemination of obscene materials

to willing buyers, the sale and possession of drugs, prosti-

tution, gambling, suicide (including aiding another with

suicide), and usury. Reynolds v. United States, 98 U.S. 145,

166 (1879) (“it is within the legitimate scope of the power

of every civil government to determine whether polygamy

or monogamy shall be the law of social life under its

dominion”); Miller v. California, 413 U.S. 15, 18-19 (1973)

(“[t]his Court has recognized that the States have a

legitimate interest in prohibiting dissemination or exhibi-

tion of obscene material”); Minnesota v. Martinson, 256

U.S. 41, 45 (1921) (“[tJhere can be no question of the

authority of the State in the exercise of its police power to

regulate the administration, sale, prescription and use of

dangerous and habit-forming drugs”); L’Hote v. New

Orleans, 177 U.S. 587 (1900) (prostitution); Ah Sin v.

Wittman,=198 U.S. 500, 505-506 (1905) (“suppression of

gambling is concededly within the police powers of a

State”); Glucksberg, 521 U.S. 702 (1997) (upholding

Washington’s anti-assisted suicide statute); Vacco v. Quill,

521 U.S. 793 (1997) (upholding New York’s anti-assisted

suicide statute); Griffith v. Connecticut, 218 U.S. 563, 569

(1910) (“It is elementary that the subject of the maximum

amount to be charged by persons or corporations subject to

the jurisdiction of a State for the use of money loaned

within the jurisdiction of the State is one within the police

power of such State.”).

Petitioners ask this Court to overturn precedent and

declare a new right never before recognized by this Court.

This -ew “right” to sexual gratification would have no

natural or principled limitation.

Adultery, homosexuality and the like are sexual

intimacies which the State forbids altogether, but

10

the intimacy of husband and wife is necessarily

an essential and accepted feature of the institu-

tion of marriage, an institution which the State

not only must allow, but which always and in

every age it has fostered and protected. It is one

thing when the State exerts its power to either

forbid extra-marital sexuality altogether, or to

say who may marry, but it is quite another when,

having acknowledged a marriage and the intima-

cies inherent in it, it undertakes to regulate by

means of the criminal law the details of that in-

timacy.

Poe v. Ullman, 367 U.S. 497, 553 (1961) (Harlan, J.,

dissenting). Regulating the intimacy of the marital rela-

tionship and decisions regarding having and raising

children “is surely a very different thing indeed from

punishing those who establish intimacies which the law

has always forbidden and which can have no claim to

social protection.” Id.

Petitioners come to this Court citing the same cases

citied by the respondent in Bowers v. Hardwick." The

* Bowers, 478 U.S. at 190 (“We first register our disagreement with

the Court of Appeals and with respondent that the Court’s prior cases

have construed the Constitution to confer a right of privacy that

extends to homosexual sodomy and for all intents and purposes have

decided this case. The reach of this line of cases was sketched in Carey

v. Population Services International, 431 U.S. 678, 685 (1977). Pierce v.

Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 US.

390 (1923), were described as dealing with child rearing and education;

Prince v. Massachusetts, 321 U.S. 158 (1944), with family relationships;

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with

procreation; Loving v. Virginia, 388 U.S. 1 ( 1967), with marriage;

Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with

contraception; and Roe v. Wade, 410 U.S. 113 (1973), with abortion. The

latter three cases were interpreted as construing the Due Process

(Continued on following page)

M1

Court rejected the pertinence of those cases, holding “none

of the rights announced in those cases bears any resem-

blance to the claimed constitutional right of homosexuals

to engage in acts of sodomy that is asserted in this case.”

Bowers, 478 U.S. at 190-91. The only new argument

Petitioners offer the Court is the perceived change in the

prevailing winds of sentiment regarding homosexual

activity among the various States. Petitioners are asking

this Court to impose the will of the majority of States upon

the minority, which is exactly what they complain of in

this case.

B. The record and law do not support an

equal protection claim.

Petitioners’ equal protection claim is not supported in

the record. There is no record that these two men were

homosexuals. Without a record that the petitioners were

homosexuals, they cannot fashion an equal protection

claim that they are within the class they claim is discrimi-

nated against by § 21.06. Thus, they cannot support either

a facial or an as-applied challenge. However, even if a

facial challenge analysis were applied, § 21.06 applies

whenever two members of the same sex, whether homo-

sexual, heterosexual or bisexual, engage in “deviate sexual

intercourse.” Section 21.06, applied to two heterosexual

men who engage in a one-time excursion into “deviate

sexual intercourse” for experimentation purposes, does not

discriminate against homosexuals. Petitioners simply have

no record to back an equal protection claim and could not

Clause of the Fourteenth Amendment to confer a fundamental individ-

ual right to decide whether or not to beget or bear a child. Carey v.

Population Services International, supra, at 688-689”).

12

meet the Salerno standard even if a claim existed. See

generally Salerno, 481 U.S. 739.

Additionally, Petitioners’ equal protection argument

fails because “the statute is directed at certain conduct, not

at a class of people.” Baker v. Wade, 774 F.2d 1285, 1287

(5th Cir. 1985). Section 21.06 applies to individuals whether

they are black or white, Asian or Hispanic, male or female,

old or young. The law applies with equal application

whether the individual is homosexual or heterosexual or

bisexual or shifts between such categories from time to

time. The law knows neither race nor sexual orientation.

Even if a valid equal protection claim had been

brought, this case is not about a protected class such as

race or gender. Sexual orientation is not a suspect class.

See Romer, 517 U.S. at 632. The rational basis test ap-

plies, and § 21.06 easily satisfies rational basis.

Il. SECTION 21.06 IS CLEARLY RATIONAL.

Section 21.06 easily satisfies the rational basis test.

There are many rational bases supporting § 21.06. Inter-

ests in public health or the promotion of marriage would

each alone satisfy the rational basis test.

A. Section 21.06 was not the product of ani-

mus.

Petitioners and amici supporting petitioners offer that

the “obvious explanation for § 21.06 is that it Teflects

popular disapproval of gay people.” Brief of Amici Curiae

Bruce A. Ackerman, et al. at 21, Lawrence v. Texas (No.

02-102) (emphasis added). This accusation is repeated

throughout the amici supporting petitioners. Petitioners

equate the motive for enacting § 21.06 to that of men who

13

“feared witches and burnt women.” Petitioners’ Brief at 37,

Lawrence (No. 02-102). These accusations are outrageous.

These charges are made, notwithstanding the availability

of legislative history regarding the enactment of § 21.06 in

the form of audiotapes of legislative committee hearings

and debates. See Legislative Research Library of Texas,

Researching Legislative History and Intent, Step 4: Listen

to tape recordings of legislative discussion. <www.lrl.state.

tx.us/legis/intent/intentStep4.html> (noting that recordings

are available for legislation from 1973 onward). Petitioners’

failure to cite this legislative history is telling.’ Neither

Respondent nor Amici can be expected to offer evidence to

dispute a negative, especially one that does not exist.

Petitioners’ “purposeful avoidance of the truth” cannot

serve as the justification for pinning a badge of hatred on

the members of the Texas Legislature. Harte-Hanks Com-

munications v. Connaughton, 491 U.S. 657, 692 (1989).

Petitioners’ unsubstantiated claims of hatred by

members of the Texas legislature are undoubtedly an

attempt by petitioners to connect to dicta in this Court’s

opinion in Romer v. Evans, 517 U.S. 620, 632 (1996) in

which Justice Kennedy in striking down a Colorado

Amendment that limited the political access of gay and

lesbian citizens to local government in Colorado observed,

“its sheer breadth is so discontinuous with the reasons

offered for it that the amendment seems inexplicable by

anything but animus toward the class it affects.”

* Hours and hours of tapes of hearings and testimony on § 21.06 in

the 1973 and subsequent legislative sessions exist and establish the

legislative record. Petitioners have never introduced any of these tapes

into the record or relied upon any of this vast legislative history.

14

Section 21.06, however, is clearly distinguishable.

Unlike the Colorado amendment that struck at the very

heart of the political process and therefore limited the

ability of those subject to its terms to seek its repeal or

reform, Petitioners like all Texas citizens remain free to

argue for political change of the law. Cf. Equality Founda-

tion of Greater Cincinnati, Inc. v. City of Cincinnati, 128

F.3d 289 (6th Cir. 1997), cert. denied, 525 U.S. 943 (1998)

(amendment of city charter permissible under Romer). In

fact, as Petitioners assert, some Texas citizens have sought

repeal of this law. The fact that they have not won the

political contest at this point in time does not make the

law unconstitutional, nor evidence that the legislature is

motivated by animus.

The fluid nature of political contests is well known to

this Court. It is evidenced in the particular context rele-

vant to this case by the passage of a hate crimes bill in the

last session of the Texas Legislature that included “sexual

preference” among the characteristics that invoked in-

creased punishment. See House Bill 587, codified at TEX.

PENAL CODE § 12.47.

Petitioners and their amici invite the Court to find

animus on the part of the Texas Legislature as the neces-

sary precursor to finding no rational reason for § 21.06 to

exist. As Justice Kennedy pointed out, “liJt is a most

serious charge to say a State has engaged in a pattern or

practice designed to deny its citizens the equal protection

of the laws.” Board of Trustees v. Garrett, 531 U.S. 356,

375 (2001) (Kennedy, J., concurring). In this case, it is a

charge made with no offer of evidence. More importantly,

it is made with no foundation in truth.

ee cme

15

B. Petitioners attempt to shirk their duty to

negate all possible rational bases for

§ 21.06 by distracting the Court.

Petitioners are using the wrong standard. Under the

rational basis test, it is “constitutionally irrelevant [what]

reasoning in fact underlay the legislative decision.” Rail-

road Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)

(quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960)).

Although there is no evidence that § 21.06 constitutes a

legislative classification of persons, as opposed to acts, the

rational basis test merely requires that such a classifica-

tion be “rationally related to a legitimate governmental

interest.” Department of Agriculture v. Moreno, 413 U.S.

528, 533 (1973). Petitioners bear the burden “to negative

every conceivable basis which might support” § 21.06

“whether or not the basis has a foundation in the record.”

Heller v. Doe, 509 U.S. 312, 320-21 (1993) (internal cita-

tion omitted). The State of Texas “has no obligation to

produce evidence to sustain the rationality of a statutory

classification.” Id. at 320; see also FCC v. Beach Communi-

cations, Inc., 508 U.S. 307, 315 (1993) (“a legislative choice

is not subject to courtroom factfinding and may be based

on rational speculation unsupported by evidence or em-

pirical data”).

Both the protection of public health and the promotion

of marriage serve as rational bases to support § 21.06.

C. Section 21.06 is rationally related to

protecting the public health.

Texas may legitimately exercise its police powers to

protect the public health. See City of Erie v. Pap’s A.M.,

529 U.S. 277, 298 (2000) (“Erie’s efforts to protect public

health and safety are clearly within the city’s police

16

powers”). One of the rational bases for enacting § 21.06

was to protect the public health from the very real danger

of same-sex sodomy.’ Legislators are especially concerned

for the health, safety and well-being of those who may

seek to engage in same-sex sodomy. As Amici Texas Physi-

cians Resource Council, et al. in their brief pointed out,

“men who have sex with men, perhaps 2 percent of the

U.S. population (supra note 12), account for 60 percent of

Texas men with HIV/AIDS, 63 percent of the cumulative

number of AIDS cases in U.S. men, and over 51 percent of

all U.S. AIDS cases.” Brief of Amici Curiae Texas Physi-

cians Resource Council, et al. at 26, Lawrence v. Texas

(No. 02-102); See Texas HIV/STD Annual Report 2001, 9

(Texas Dept. of Health Bureau of HIV & STD); CDC Basic

Statistics, Division of HIV/AIDS Prevention.

Same-sex sodomy presents serious health problems

that must be prevented in order to ensure that all of the

people of the State of Texas, especially those that seek to

engage in same-sex sodomy, are fully protected from

ravages of infection and disease. According to the National

i islati .06 was

* Arguments that there is no legislative statement that § 21

for the purpose of protecting public health misunderstand the law.

There is no need for the Texas Legislature to produce legislative

proclamations of intent and purpose. See United States v. Lopez, 514 ©

S. , 617 (1995) (Breyer, J., dissenting) (“the matter that we review

ps nr te (i.e., whether there is a ‘rational basis’) already has

considerable leeway built into it. And, the absence of findings, te —_

deprives a statute of the benefit of some extra leeway.’ ); Katzen ie

McClung, 379 U.S. 294, 299 (1964) (“no formal findings were — ,

which of course are not necessary”). In actuality, however, the Legis A

ture has expressed the connection between § 21.06 and protection 0

public health. See TEX. HEALTH & SAFETY CoDE § 85.007 (2002).

" Available at www .tdh.state.tx.us/hivstd/legislature/2001.pdf.

* Available at www.cdc.gov/hiv/stats.htm.

17

Center for HIV, STD and TB Prevention of the Centers for

Disease Control and Prevention (CDC), Texas ranks fourth

in the nation for the number of cumulative AIDS cases

with 56,730 cases. See CDC Basic Statistics. With 368,971

AIDS cases being the direct result of same-sex sodomy

between men and only 32,735 AIDS cases being the direct

result of heterosexual contact, there is no doubt that it is

rational to ban same-sex sodomy. See id. Same-sex sodomy

accounts for more than ten times the amount of AIDS

infections than opposite-sex activity. And this is just one

sexually transmitted disease. The interests presented

above alone, in addition to those presented by Amici

Curiae Texas Physicians Resource Council, et al., more

than meet the requirements for § 21.06 to be rational.

D. Section 21.06 is rationally related to pro-

moting marriage and procreation.

Section 21.06 also satisfies rational basis as part of a

myriad of laws enacted by the Texas Legislature to en-

courage marriage and discourage sexual activity outside of

marriage. Second, even if § 21.06 were considered apart

from all other Texas laws, it still serves the same interest

of promoting marriage since the only sodomy prohibited is

that which cannot be within and can never lead to mar-

riage. Third, even if § 21.06 did not perfectly track the

marital/non-marital distinction, it is not necessary to do so

to pass the rational basis test. Finally, petitioners’ argu-

ments of discrimination would apply equally to heterosex-

ual marriage, rendering the marriage laws of all fifty

States unconstitutional.

18

1. Promoting marriage is important

The promotion of marriage is important to Texas. a

Texas Legislature, expressing itself through the ——

Code, stated that it created the statutory rules to geen

marriage in order “to promote the public health an

welfare and to provide the necessary records. TEX. FAM.

CopE § 1.101. The highest courts’ in Texas have likewise

long affirmed that Texas has a public policy ong

marriage. City of Sherman v. Henry, 928 S.W.2d 464,

(Tex. 1996); Texas Employers Insurance Association uv.

Elder, 282 S.W.2d 371, 373 (Tex. 1955); Roberts v. Roberts,

192 S.W.2d 774, 776 (Tex. 1946); Moore v. Moore, 22 Tex.

237, 238-40 (1858); Waldrop v. State, 41 Tex. Crim. 194,

198 (1899); Holder v. State, 35 Tex. Crim. 19, 24 (1895).

The Texas Legislature promotes marriage because it

provides numerous benefits to the State and its people.

Married individuals are more likely than unmarried

individuals to enjoy “very good” or “excellent mental and

emotional health. See Corey L. M. Keyes, The Mental

Health Continuum: From Languishing to Flourishing Life,

43 JOURNAL OF HEALTH AND SOCIAL BEHAVIOR, 207-22

(2002). In one study done over a period of thirty —_

marriage had a substantial effect on the overall physi

health of the population, which led to a direct and meas-

urable benefit of reduced use of health facilities. See P. M.

Prior & B. C. Hayes, Marital Status and Bed Occupancy in

Health and Social Care Facilities in the United Kingdom,

115 PusBLic HEALTH, 401-06 (2001). Married individuals

. Texas has two equal but parallel high courts. The Texas Bupreme

yee oh ree a made gs — of appeals for

Court of Criminal Appeals is the co

criminal matters.

19

have better health in all categories of health across the

board. See Amy Mehraban Pienta, Mark D. Hayward &

Kristi Rahrig Jenkins, Health Consequences of Marriage

for the Retirement Years, 21 JOURNAL OF FAMILY ISSUES No.

5, 559-86 (July, 2000). Thus, marriage has a significant

impact on the cost of health care and health related

services. These savings translate into lower health insur-

ance premiums, making health care available to those that

could not otherwise afford health insurance and enabling

the State of Texas to provide for the medical care of the

poor. :

Marriage creates more stability in the work force as

married men are less likely to be terminated involuntarily

or leave a job without having another job in hand. See

Elizabeth H. Gorman, Bringing Home the Bacon: Marital

Allocation of Income-Earned Responsibility, Job Shifts, and

Men's Wages, 61 JOURNAL OF MARRIAGE AND THE FAMILY,

110-22 (1999). In fact, becoming married almost doubles

the probability of moving from a poor to a non-poor

neighborhood. See Scott J. South & Kyle D. Crowder,

Escaping Distressed Neighborhoods: Individual, Commu-

nity, and Metropolitan Influences, 102 AMERICAN JOURNAL

OF SOCIOLOGY, 1040-84 (1997) (The study looked at thirty

years of data from 17,000 inner-city households). There is

a direct link between marriage and economic prosperity.

Promoting marriage is important to the overall fight to

end poverty. Marriage is a component to increasing eco-

nomic prosperity, which in turn leads to an increase in

overall health. See Catherine E. Ross & Chloe E. Bird, Sex,

Stratification and Health Lifestyle: Consequences for Men’s

and Women’s Perceived Health, 35 JOURNAL OF HEALTH

AND SOCIAL BEHAVIOR, 161-78 (1994). Promoting marriage

impacts so many other aspects of social well-being that its

benefits cannot be denied. It is, therefore, imperative that

the Texas Legislature be free to promote marriage and

20

discourage sexual activity outside of marriage so that the

Legislature may maintain its strongest weapon against

poverty and deteriorating health.

2. Section 21.06 is part of a myriad of state

laws promoting marriage and discourag-

ing sexual activity outside of it.

In evaluating whether § 21.06 is rational, the Court

should consider that the provision is one part of a larger

network of laws designed to further the legitimate State

interest of promoting traditional marriage of one man and

one woman. ;

e laws regarding marriage which provide both

a the sae powers may be used and the le-

gal and societal context in which children are

born and brought up, as well as laws forbidding

adultery, fornication and homosexual practices

which express the negative of the proposition,

confining sexuality to lawful marriage, form a

pattern so deeply pressed into the substance of

our social life that any Constitutional doctrine in

this area must build upon that basis.

Poe, 367 U.S. at 546 (Harlan, J., dissenting). The connec-

tion between § 21.06 and marriage is undeniable. The

same legislature which changed the Texas sodomy

law in 1973 to its current form, at the same time

changed Texas’ marriage law to explicitly specify,

for the first time, that marriage in Texas may only

be between “a man and a woman.” TEX. FAM. CODE

§ 2.001 (Acts 1973, 63rd Leg., p. 1596, ch. 577, § 1). Even

in teaching sexual education, Texas law emphasizes that

sex should be within marriage and other conduct, such as

homosexual sex, is discouraged. Sex education materials

must “emphasize sexual abstinence before marriage and

21

fidelity in marriage as the expected standard” and must

discourage “homosexual conduct” and note that it violates

§ 21.06. Tex. HEALTH & SAFETY CODE § 85.007.

Texas provides benefits to married couples that it does

not provide to other “couples.” Spouses have the right to

consortium, the right to “affection, solace, comfort, com-

panionship, society, assistance, and sexual relations

necessary to a successful marriage.” Whittlesey v. Miller,

572 S.W.2d 665, 666 (Tex. 1978). Spouses may sue third

parties in tort for the negligent or intentional impairment

(such as through death or personal injury) of second

spouse’s consortium. Jd. Spouses also have rights to

support from one another. Tex. FAM. Cope § 2.501. A

spouse who breaches this duty can be liable to third

parties for necessaries purchased by the wronged spouse.

Id. Spouses likewise have mutual rights to “services,”

meaning the performance by a spouse of household and

domestic duties. Whittlesey, 572 S.W.2d at 666 n. 3. A

spouse can recover in tort against a third party for the

impairment (such as through death or personal injury) of

the second spouse’s ability to perform services. Id.

Another benefit of marriage not provided to other

“couples” involves special property rights. Texas is a

community property State. Tex. Fam. CopE § 3.002. Texas

views the partners to a marriage as a community. Property

acquired from the labor of either spouse during the mar-

riage is generally viewed as property of the community,

not the individual spouse. If a spouse dies intestate, the

surviving spouse inherits at least some, and perhaps all

(depending on whether other survivors exist), of the

decedent’s interests in community and separate property.

TEX. PROBATE CODE §§ 43 and 45. Both spouses have right

to joint management and control of ordinary community

22

property. TEX. FAM. CODE § 3.102. A spouse who controls

special community property (community property under

the sole control of one spouse) owes fiduciary duties to the

other spouse to use the property for the benefit of the

community. Schlueter v. Schlueter, 975 S.W.2d 584, 588

(Tex. 1998); Mazique v. Mazique, 742 S.W.2d 805, 807-08

(Tex. App. -— Houston [Ist] 1987, no writ). Unmarried

“couples” do not have access to this community property

system. Texas does not recognize a community in other

relationships.

Texas has also created a zone of privacy within mar-

riage that does not apply to other intimate relationships.

For example, the Texas Rules of Evidence provide eviden-

tiary privileges to spouses. TEX. RULES OF Evip. 504. One

privilege permits spouses to refuse to disclose confidential

communications from the second spouse. TEX. R. EVID.

504(a). A second and broader privilege permits a spouse

immunity from testifying against the second spouse in a

criminal case — whether about confidential communica-

tions or otherwise. Tex. R. Evin. 504(b). The Texas Su-

preme Court has explained that these privileges are “to

promote and encourage the utmost confidence between

husband and wife and thus to aid in the preservation of

the marriage status.” Fasken v. Fasken, 260 S.W. 701, 703

(Tex. 1924); see also Ludwig v. State, 931 S.W.2d 239, 242-

43 (Tex. Crim. App. 1996). The policy of the law in Texas

favors marriage and not other sexual behavior, however

intimate or long-standing.

23

Texas also encourages marriage” by prohibiting or

penalizing extra-marital sexual conduct. Some private,

consensual sexual acts are criminal. See Tex. PENAL CODE

§§ 25.01, 25.02, 21.06 and 43.02. In addition to criminaliz-

ing some sexual conduct, Texas legally penalizes other

extra-marital sexual acts. Adultery, for example, while not

criminal, is a ground that makes the adulterer at fault for

divorce. TEX. FAM. CODE § 6.003. Even though Texas does

allow no-fault divorces, Texas provides that a finding of

fault is relevant to dividing the marital estate. Murff v.

Murff, 615 S.W.2d 696, 698 (Tex. 1981); Young v. Young,

609 S.W.2d 758 (Tex. 1980). The trier of fact may rightly

reduce the award of the party at fault. Similarly, Texas

recognizes that when a spouse uses community property to

fund adulterous affairs, the second spouse has a claim for

fraud on the community, which affects the division of the

estate in favor of the wronged spouse. Mazique, 742

S.W.2d at 807-808.

Even the Texas Constitution and common law support

the legislative goal of funneling sexual activity into the

bonds of marriage and disfavoring sex outside of marriage.

In City of Sherman v. Henry, 928 S.W.2d 464, 470 (Tex.

1998), the Texas Supreme Court refused to extend the

” Texas law limits marriage to one man and one woman. TEX. FAM.

CODE § 2.001; Littleton v. Prange, 9 S.W.3d 223 (Tex. App. - San Antonio

1999, pet. denied), cert. denied, 531 U.S. 872 (2000). To enforce this

arrangement, Texas does not legally recognize other arrangements

(some of which may be recognized in other countries or jurisdictions),

such as polygamy, incest, polyandry, bigamy, homosexual unions, and

marriages of parties under the age of 14. Tex. Fam. Cope §§ 2.001,

2.003, 6.201 and 6.202. These non-traditional marital structures are so

disfavored that many bring criminal liability. Tex. PENAL CODE

§§ 21.11, 25.0i, 25.02 and 43.21.

24

State right of privacy to sexual conduct outside of mar-

riage, even though other jurisdictions had done so. Texas

law thus recognizes sex within marriage as a special

protected status, -while disfavoring sex outside of mar-

riage.

The argument that § 21.06 treats homosexual and

heterosexual sodomy differently misses the mark.

Whether viewing the Texas law against polygamy, sex

education requirements that sex outside of marriage be

discouraged, laws disfavoring adultery, or the prohibition

of § 21.06, all these laws serve the interest of promoting

marriage and discouraging sex outside of it."

Even if § 21.06 were divorced from the other Texas

law and viewed in a myopic fashion, it would still serve

the same interest. Section 21.06 specifically prohibits the

only sodomy which cannot be within and can never lead to

marriage. Additionally, “a statute is not invalid under the

Constitution because it might have gone farther than it

did, or because it may not succeed in bringing about the

result that it tends to produce.” Roschen v. Ward, 279 US.

337, 339 (1929).” Promoting marriage and encouraging

" Petitioners’ heterosexual/homosexual discrimination argument,

if accepted, would equally strike down Texas laws discouraging

adultery, since only those in heterosexual relationships are adversely

affected.

" Moreover, under the rational basis test, “a State ‘does not violate

the Equal Protection Clause merely because the classifications made by

its laws are imperfect.’” Massachusetts Bd. of Retirement v. Murgia,

427 U.S. 307, 316 (1976) (per curiam) (quoting Dandridge v. Williams,

397 U.S. 471, 485 (1970)). This Court has chosen “not [to] inquire

whether [a] statute is wise or desirable.... Misguided laws may

nonetheless be constitutional.” James v. Strange, 407 U.S. 128, 133

(1972). The obvious reason for such a position by the Court is that

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and funneling sexual activities to within its bonds, easily

satisfy the rational basis requirement.

The arguments of petitioners — (1) that a law which

states a man and woman can engage in activity that a

man and man cannot is discriminatory and unconstitu-

tional, and (2) that fundamental rights status attaches to

homosexual sodomy - directly implicate marriage. If (1) is

true, the marriage laws of every State also so discrimi-

nate. If (2) is true, each State would be required to justify,

under strict scrutiny, all its laws favoring heterosexual

marriage. Such a determination would even implicate

federal laws and regulations from the Department of

Defense’s “don’t ask, don’t tell” to Social Security and

immigratioi. laws and all other federal and State laws that

assume a basic definition of marriage as heterosexual.

It is wise to leave the core area of the family to the

States. As this Court has stated, “[rJegulation of domestic

relations [is] an area that has long been regarded as a

virtually exclusive province of the States.” Sosna v. Iowa,

419 U.S. 393, 404 (1975). Decisions regarding marriage,

the family and appropriate sexual behavior should at least

be the subject of public debate and discourse, as it has for

the past 200 years, decided by duly elected bodies, and the

281,421,906 Americans they represent, not decided behind

closed doors by courts.

“[rJational-basis review — with its presumptions favoring constitutional-

ity — is a paradigm of judicial restraint.” Board of Trustees of Univ. of

Ala. v. Garrett, 531 U.S 356, 383 (2001) (Breyer, J., dissenting) (inter-

nal citation omitted) (emphasis in original).

26

III. JUDICIAL INTERVENTION INTO CONTESTED

POLITICAL QUESTIONS DISRUPTS THE PRO-

PER POLITICAL STRUCTURE AND HARMS

THE NATION.

The Constitution embodies a delicately balanced

power structure, both horizontally and vertically. Horizon-

tally, the separation of powers confers on each branch the

means “to resist encroachments of the others.” THE FED-

ERALIST No. 51, at 349 (J. Madison) (J. Cooke ed., 1961).

Vertically, principles of federalism require special atten-

tion when the Court is put in the position of piercing the

silence of the record with its own “findings of fact,” espe-

cially when those “facts” can be based only on the bare

assertions of petitioners and their amici without support

in the record. A factual record, missing in this case, is

essential.

Petitioners rely heavily on the fact that many States

have repealed their sodomy and fornication laws. See

Petitioners’ Brief at 24, Lawrence (No. 02-102). According

to petitioners, the Texas legislature is out of step with the

legislatures of other States and must be forced by this

Court to bend to the will of the majority of States. This is

akin to asking the Court to control the conduct of one

State at the behest of another. See New York v. New Jersey,

256 U.S. 296 (1921) (the Court at least required clear and

convincing evidence before exercising its power to control

the conduct of one State at the behest of another in an

effort to promote federalism); Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J.,

concurring) (“The Framers, however, did not make the

judiciary the overseer of our government”).

This case has vast and far-reaching implications that

go beyond the decision regarding the present case. A

27

decision in favor of petitioners will bring into question the

ability of the states to regulate sexual conduct and define

marriage as the union of one man and one woman. Such a

decision would arguably affect our communal lives more

than any other issue the States will face in the foreseeable

future. It will also “invite [] an unelected federal judiciary

to make decisions about which state policies it favors and

which ones it dislikes.” Garcia v. San Antonio Metro., 469

U.S. 528, 546 (1985). At the same time, it will “relegate the :

States to precisely the trivial role that opponents of the

Constitution feared they would occupy.”” Garcia, supra,

469 U.S. at 575 (Powell, J., dissenting) (footnote omitted).

The Louisiana Supreme Court, confronted with the

constitutionality of its sodomy law, issued a warning

concerning judicial restraint:

{Ojur constitution is not [to] be subject to judicial

amendment to express whatever a majority of

this court happens to conclude at any given time

is the more enlightened viewpoint on a particular

controversial issue. If our constitution can be ju-

dicially amended in such a manner, that consti-

tutes government by this court, rather than

government through a constitutional system of

which this court is a separate and equal branch.

To hold otherwise would be to allow any and all

” “If the several States in the Union are to become one entire

Nation, under one Legislature, the Powers of which shall extend to

every Subject of Legislation, and its Laws be supreme & controul the

whole, the Idea of Sovereignty in these States must be lost.” Samuel

Adams, Letter to Richard Henry Lee, 3 Dec. 1787, in The Writings of

Samuel Adams 4:324 (Harry A. Cushing ed. 1968).

28

disaffected groups . . . [to] only convince a major-

ity of this court that what they seek is an implicit

“right” afforded by the Louisiana Constitution.

Our constitution wisely provides for separation of

powers, and authorizes the legislature to make

public policy determinations in this area.

State v. Smith, 766 So.2d 501, 510 (La. 2000).

Petitioners point out that some States have chosen to

change their laws through the appropriate legislative

process. Petitioners’ attempt to accelerate their victories

by having this Court impose the decisions of some States

on the other States would destroy the debates and democ-

ratic discussions occurring State by State. It would do

damage to our country’s structure and misuse the role and

power of the courts.

Therefore, the only perceptible unconstitutional-

ity in this case is that which would be evident if

this court would determine, by acting as social

engineers rather than jurists, and elevate our

own personal notions of individual “liberty” over

the collective wisdom of the voters’ elected repre-

sentatives’ belief. That belief has already deter-

mined that a prescription on oral and anal sex,

consensual or otherwise, is in furtherance of the

moral welfare of the public mind. Social engi-

neering is not a valid function of this court.

Id. at 510. “Judge-made constitutional law having little or

no basis in the Constitution is dangerous and questions

the legitimacy of the Court.” Jd. at 512.

Determining for ali States such a controversial public

policy issue found nowhere in the Constitution would be a

mistake. This core area of marriage, the family and

appropriate sexual behavior should be left to the States.

S

29

CONCLUSION

For the foregoing reasons, the Court should dismiss the

writ as improvidently granted. In the alternative, the Court

should affirm the judgment of the Court of Appeals of Texas.

Respectfully submitted,

ScoTT ROBERTS KELLY SHAC

KELFORD

1206 Oakwood Trail Counsel of Record

Southlake, Texas 76092 HIRAM S. SASSER III

(817) 424-3923 _ LIBERTY LEGAL INSTITUTE

903 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

Date: February 18, 2003