# Amicus Curiae Brief — Lawrence v. Texas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A29 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2003 - **Citation:** 539 U.S. 558 ## Text [ 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. (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 (Continued on following page) aren 25 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A29. Public record. Not legal advice.