Amicus Curiae Brief — Lawrence v. Texas

No. 02-102

Supreme Court of the United States

6

John Geddes LAWRENCE

and Tyron Garner,

Petitioners,

.

State of TEXAS,

Respondent.

6

On Writ of Certiorari to the

Fourteenth Court of Appeals of Texas

0

BRIEF OF THE STATES OF ALABAMA, SOUTH

CAROLINA, AND UTAH AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

¢

William H. Pryor Jr.

Attorney General

Of Counsel Nathan A. Forrester

George M. Weaver Solicitor General

HOLLBERG & WEAVER, L.L.P. Counsel of Record *

2941 Piedmont Rd., N.E.,

Suite C STATE OF ALABAMA

Atlanta, GA 30305 Office of the Attorney General.

(404) 760-1116 11 South Union Street

ö Montgomery, AL 36130-0152

February 18, 2003 (334) 242-7401, 353-9782 *

(Additional counsel for amici curiae are listed inside the front cover.)

Henry D. McMaster

Attorney General

STATE OF SOUTH CAROLINA

Office of the Attorney General

P.O. Box 11549

Columbia, SC 29211

Mark L. Shurtleff

Attorney General

STATE OF UTAH

Utah State Capitol Office

236 State Capitol

Salt Lake City, UT 84114-0810

QUESTIONS PRESENTED

1. Does the United States Constitution protect the

right to engage in homosexual sodomy?

2. Does the United States Constitution forbid the

States to make legal classifications based on a person’s

choice to engage in sexual activity with another person of

the same sex?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . .. . i

een ii

TABLE OF AUTHOMI G8. ————————————¶kr iii

INTEREST OF AMICI CURIAE. 1

SUMMARY OF ARGUMENT. ———ꝰ—— 2

99 — 3

I. The Constitution Does Not Contain an Express or

Implied Right to Engage in Homosexual Sodomy. ...... 4

A. Only activities historically considered beyond

the reach of government regulation are

protected by the Due Process Clause of the

Fourteenth Amendment 4

B. The non-textual fundamental rights that this

Court has recognized in the Due Process

Clause of the Fourteenth Amendment have

protected marriage, child-bearing, and the

family — not extramarital sex, and certainly

not homosexual sodom y 8

II. The Choice to Engage in Homosexual Sodomy (As

Opposed to the Inclination) Is Not a Suspect

Classification Under The Equal Protection Clause

of the Fourteenth Amendment 16

III. Recognizing a Fundamental Constitutional Right

to Engage in Homosexual Sodomy Will Damage

the Legitimacy of this Court and Enshrine a

Dangerously Expansive Concept of Individual

„„ 20

0000.00. ——75＋«—c——————————————— 28

TABLE OF AUTHORITIES

Cases

Baker u. Wade, 769 F.2d 289 (5th Cir. 1985) 15

Benton v Maryland, 395 U.S. 784 (1969) 4

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

Carey v. Population Services International, 431 U.S.

EE eS 7,9

Clark v. Jeter, 486 U.S. 456 (1988) 19

Cleveland Board of Education v. LeFleur, 414 U.S. 632

ae 11

Collins v. Harker Heights, 503 U.S. 115 (1992)......... 4, 5, 8

Commonwealth v. Bonadio, 415 A. 2d 47 (Pa. 1980) 27

Doe v. Commonwealth's Attorney for City of

Richmond, 403 F. Supp. 1199 O. Va. 1975), aff'd,

e . 11 14

Eisenstadt v. Baird, 405 U.S. 438 (1972) 7,9

F.S. Royster Guano Co. v. Virginia, 253 U.S. 412

EAA 17

Furman v. Georgia, 408 U.S. 238 (1972) 27

Gregg v. Georgia, 428 U.S. 153 (1976) 27

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

Harmelin v. Michigan, 510 U.S. 957 (1991) 21

Loving v. Virginia, 388 U.S. 1 (1987) 9

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)... 22, 23

Maynard v. Hill, 125 U.S. 190 (1888) 10

iv

Meyer v. Nebraska, 262 U.S. 390 (1923). 6, 9, 10

Michigan Org. for Human Rights v. Kelley, No. 88-

815820 CZ (Mich. Cir. Ct. Wayne County, July 9,

99 ů——ç—ç—ç—ç—ç—— 14

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

— — ⁵̃ ᷑in!½!½!: 5, 6, 7, 11

Palko v. Connecticut, 302 U.S. 319 (1937) 4

Palmore v. Sidoti, 466 U.S. 429 (1984) 19

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

Paul v. Davis, 424 U.S. 693 (1976) 9

People v. Lino, 447 Mich. 567 (1994) . 15

Pierce v. Society of Sisters, 268 U.S. 510 (1925)................ 9

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

— j ———ꝗ.7. passim

Plyler v. Doe, 457 U.S. 202 (1982) . 16, 19

Poe v. Ullman, 367 U.S. 497 (1961) 12, 13, 27

Rochin v. California, 342 U.S. 165 (1952) . 9

Roe v. Wade, 410 U.S. 113 (1973) passim

Romer v. Evans, 517 U.S. 620 (1996)................... 16, 17, 18

Rose v. Locke, 423 U.S. 48 (1975) ——————:7—œ0—k.— 14

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

Se 9, 10

Snyder v. Massachusetts, 291 U.S. 97 (1934) 4

Stanley v. Georgia, 394 U.S. 557 (1969) . 15

United States v. Virginia, 518 U.S. 515 (1996)................ 19

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

Vv

Zablocki v. Redhail, 434 U.S. 374 (1978) 10, 11

Statutes

Ala. Code § 13A-6-60(2).........cccccececcssececessesesseseseressveseeseee 14

re.. 14

D sc osriesiehderereiartienesinnntnensinitieiabeiaaats 14

EET A 14

Kan. Stat. Ann. § 21-3505 (a) (1) . . . . . . 14

en 14

Mich. Comp. Laws § 750.158, 338 (1991) 14

r 14

ZZ a 14

. 14

, 14

S.C. Code Ann. § 16-15-1 20 14

r a a Ee 14

, 2 RTT 14

Utah Code Ann. § 76-55-4031). . . . . . . . 14

Va. Code Ann. § 182-36 1 (a). . . . 14

Other Authorities

Aristotle, Nicomachean Ethics (W. D. Ross trans.,

11ꝓww 2 — 26

Gerome Ragni & James Rado, My Conviction, on Hair:

The American Tribal Love-Rock Musical — The

Original Broadway Cast Recording (RCA Victor

1968) (transcribed by David Pirmann, 1993) 26

vi

John Stuart Mill, On Liberty (1869) ..

Survey on the Constitutional Right to Privacy in the

Context of Homosexual Activity, 40 U. Miami L.

Rev. 521 (1986). . .. . ...... ...... es-

INTEREST OF AMICI CURIAE

The States of Alabama, South Carolina, and Utah

submit this brief as amici curiae in support of the

respondent State of Texas, urging this Court to affirm

the judgment of the Texas Court of Appeals and not to

recognize homosexual sodomy as a fundamental

constitutional right or as a suspect classification under

the Equal Protection Clause.

Presently, some fourteen States, including amici,

have criminal statutes prohibiting either homosexual

sodomy alone or all extramarital sodomy. Many States

also discourage homosexual activity through policies

regarding, for example, same-sex marriage, child

custody, adoption, and foster parenting. And many

States have laws that regulate other kinds of private

consensual adult sexual activity, such as polygamy,

incest, pedophilia, prostitution, and adultery. Amici

are concerned that, if this Court should adopt

petitioners’ expansive and undisciplined interpretation

of the Constitution, many if not all of these laws will be

invalidated.

Petitioners’ interpretation of the Constitution

would limit the ability of the States to express and

preserve the moral standards of their communities.

Under the Constitution, the States should be free to

legislate in such sensitive areas as family definition,

child-rearing, and sexual conduct. Absent a mandate

in the text or history of the Constitution, it is not for

the federal courts tc decide what is right and what is

wrong for all 50 States in the Union. The people, not

the courts, should decide such fundamental issues for

themselves.

2

SUMMARY OF ARGUMENT

Petitioners invite this Court to exalt will above

reason and political correctness above the text and

history of the United States Constitution. They would

have this Court not only overrule Bowers v. Hardwick,

which explicitly rejected their arguments, but also

scuttle the teaching of numerous cases limiting the

recognition of non-textual constitutional rights to those

that have historically and traditionally been considered

beyond the proper scope of governmental regulation.

They ask this Court to interpret the Constitution

according to their political wishes, not according to the

rule of law.

Engaging in homosexual sodomy is not protected by

the Due Process Clause of the Fourteenth Amendment

or by any other provision of the Constitution. Nr is

the choice to engage in homosexual sodomy (as opposed

to the inclination) a suspect classification subject to

heightened scrutiny under the Equal Protection Clause

of the Fourteenth Amendment. The legal regime that

petitioners and their amici advocate is a creature of

their imagination, one that would not have been

seriously entertained by the legal establishment a mere

forty years ago. Times may have changed, but the

Constitution that this Court is sworn to apply in its

exercise of judicial review has not. This Court should

not bend the text and history of the Constitution to

facilitate perceived changes in social mores that may

turn out to be illusory or misguided.

The proper loci for change of the nature that

petitioners and their amici advocate are the

legislatures of the 50 States. The legislatures of the

States are the bodies of government most responsive to

the will of the people and best suited to forge the

practical compromises necessary to preserve unity in a

|

3

rapidly changing and pluralistic society. They are best

able to determine what works, and what does not, and

to respond to that learning appropriately. The courts,

which must apply rules, heed precedents, and decide

only the cases in front of them, are ill-suited for these

functions. This Court, which must make one rule for

the entire Nation, is particularly ill-suited for these

functions.

In short, the States should remain free to protect

the moral standards of their communities through

legislation that prohibits homosexual sodomy. If

legislation of such activity is no longer supported by a

majority of the citizens of the States, the legislatures of

the States will repeal them, or elected executive

officials will cease to enforce them. The recent

movement toward decriminalizing homosexual sodomy,

even with Bowers v. Hardwick on the books, shows that

the legislative system is quite able to respond to

popular will without judicial prodding. Impatience

with the pace of change, or with the resistance of

citizens who do not regard the change as beneficial,

does not justify the judicial creation of a new

constitutional right.

ARGUMENT

Petitioners attack Texas's homosexual sodomy

statute on two fronts. First, they claim a substantive

right, under the Due Process Clause of the Fourteenth

Amendment, to engage in the conduct prohibited by the

statute. Second, they claim that, even if Texas may

constitutionally prohibit sodomy, it may not prohibit

homosexual sodomy, while permitting heterosexual

sodomy, without violating the Equal Protection Clause

of the Fourteenth Amendment. Neither argument

withstands analysis.

4

I. The Constitution Does Not Contain an

Express or Implied Right to Engage in

Homosexual Sodomy.

The text of the Constitution contains no mention of

a right to engage in homosexual sodomy. The only

question, then, is whether homosexual sodomy is a

right “implicit in the concept of ordered liberty“! i. e.,

a right “so rooted in the traditions and conscience of

our people as to be ranked as fundamental” and

therefore protected by the Due Process Clause of the

Fourteenth Amendment.? To answer that question,

wle begin, as we do in all due process cases, by

examining our Nation’s history, legal traditions, and

practices.” Because homosexual sodomy has not

historically been recognized in this country as a right

— to the contrary, it has historically been recognized as

a wrong — it is not a fundamental right.

A. Only activities historically considered

beyond the reach of government

regulation are protected by the Due

Process Clause of the Fourteenth

Amendment.

Blecause guideposts for responsible decision-

making in this unchartered area are scarce and open-

ended,” this Court “ha[s] always been reluctant to

expand the concept of substantive due process” to

recognize new fundamental rights.‘ By extending

1 Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784 (1969).

2 Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

3 Washington v. Glucksberg, 521 U.S. 702, 710 (1997).

4 Id. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115,

125 (1992)).

5

constitutional protection to an asserted right or liberty

interest, we, to a great extent, place the matter outside

the arena of public debate and legislative action.“?

This Court has therefore cautioned that it will

“exercise the utmost care whenever [it is] asked to

break new ground in this field,’ lest the liberty

protected by the Due Process Clause be subtly

transformed into the policy preferences of the Members

of this Court.” “We do not sit as a super-legislature to

determine the wisdom, need, and propriety of laws that

touch economic problems, business affairs, or social

conditions.“

Thus, to qualify as a fundamental right, the right in

question must meet two conditions. First, it must be

“deeply rooted in this Nation’s history and tradition.“

Second, it must be given “careful description,” to

ensure that it remains within the history and tradition

that justifies its recognition in the first place.? One

cannot argue that liberty itself is fundamental and

therefore that all private activity is protected from

state interference by the Constitution. In Washington

v. Glucksberg, for instance, this Court refused to accept

respondent's formulation of the issue as whether the

Due Process Clause protects “basic and intimate

exercises of personal autonomy.” Rather, the Court

framed the question as “whether the protections of the

5 Id.

8 Jd. (quoting Collins, 503 U.S. at 125).

? Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

§ Glucksberg, 521 U.S. at 721 (quoting Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977)).

8 Jd. (citations omitted).

10 §21 U.S. at 724.

6

Due Process Clause include a right to commit suicide

with another's assistance,” |! and answered the

question in the negative.

All of this Court’s precedents analyzing the

existence of non-textual constitutional rights evince a

strong concern with the historical pedigree of the

specific right in question. In Meyer u. Nebraska,"* this

Court premised its recognition of the non-textual right

of parents to school their children privately on the long- |

standing importance of family child-rearing to the

health and structure of American society. 1s And in

Moore v. City of East Cleveland, u the Court struck

down a city housing ordinance that forbade a

grandmother from living in the same home with her

son and two grandsons under the Due Process Clause

because it violated the sanctity of the family. “Our

decisions establish that the Constitution protects the

sanctity of the family precisely because the institution

of the family is deeply rooted in this Nation’s history

and tradition.” 5 This interpretational approach

prevented the Court from having to draw “arbitrary

lines” in the recognition of fundamental rights, by

showing “careful ‘respect for the teachings of history

11 Jd. See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-

66 (1973) (“Nothing II in this Court’s decisions intimates that there

is any ‘fundamental’ privacy right ‘implicit in the concept of ordered

liberty to watch obscene movies in places of public

accommodation”).

12 262 U.S. 390 (1923).

13 Id. at 400-02.

14 431 U.S. 494 (1977).

18 Jd. at 503 (plurality opinion).

7

land] solid recognition of the basic values that underlie

our society.“ 18

In Griswold v. Connecticut, “ this Court recognized

a non- textual right to use contraceptives based on the

historical right to marital privacy, “a right of privacy

older than the Bill of Rights — older than our political

parties, older than our school system.“ 1s “Marriage,”

said the Court, “is a coming together for better or for

worse, hopefully enduring, and intimate to the degree of

being sacred.” *® In a concurring opinion, Justice

Goldberg, Chief Justice Warren, and Justice Brennan

insisted that non-textual fundamental rights like the

one recognized in Griswold must derive from the

“traditions and [collective] conscience of our people.”2°

On similar thinking, this Court has accorded

constitutional protection to the choice of unmarried

persons whether to bear children.?!

16 Jd. at 502-03 (plurality opinion) (quoting Griswold, 381 U.S.

at 501 (Harlan, J., concurring)).

17 381 U.S. 479 (1965).

18 Id. at 486.

19 Jd. (emphasis added).

20 Id. at 493.

*1 Carey u. Population Services International, 431 U.S. 678, 685

(1977) (“The decision whether or not to beget a child. holds a

particularly important place in the history of the right of privacy):

Roe v. Wade, 410 U.S. 113, 129 (1973) (recognizing non-textual

right to abortion after conducting extensive survey of medical and

legal history of abortion and concluding that restrictive criminal

abortion statutes were af relatively recent vintage”); Eisenstadt v.

Baird, 405 U.S. 438, 453-54 (1972) (extending Griswold to

unmarried persons based on Equal Protection Clause).

Most recently, in Washington v. Glucksberg,” this

Court denied the existence of a non-textual right to

assisted suicide based on the long history of laws

prohibiting suicide and assisted suicide.“ We are

confronted with a consistent and almost universal

tradition that has long rejected the asserted right, and

continues explicitly to reject it today, even for

terminally ill, mentally competent adults.” The Court

concluded that, while changes had occurred over time,

especially in laws prohibiting or penalizing suicide

itself, “the asserted ‘right’ to assistance in committing

suicide is not a fundamental liberty interest protected

by the Due Process Clause. 28

“Our Nation’s history, legal traditions, and

practices thus provide the crucial ‘guideposts for

responsible decisionmaking’ that direct and restrain

our exposition of the Due Process Clause.“ Without

the constraint and guidance of history, judges would be

free to legislate their own preferences at the expense of

those of the American people as expressed through

their elected representatives. Reference to history is

the only disciplined means of recognizing a non-textual

constitutional right.

B. The non-textual fundamental rights that

this Court has recognized in the Due

Process Clause of the Fourteenth

22 521 U.S. 702 (1997).

23 Id. at 720.

24 Id. at 723.

25 Id. at 728.

26 Glucksberg, 521 U.S. at 721 (quoting Collins, 503 U.S. at

125).

9

Amendment have protected marriage,

child-bearing, and the family — not

extramarital sex, and certainly not

homosexual sodomy.

In keeping with the historical analysis described

above, this Court has primarily limited its recognition

of non-textual fundamental rights in the Due Process

Clause of the Fourteenth Amendment to “personal

decisions relating to marriage, procreation,

contraception, family relationships, child rearing, and

education.“ 7 In 1997, this Court cataloged the list as

follows:

In a long line of cases, we have held that, in

addition to the specific freedoms protected by

the Bill of Rights, the “liberty” specifically

protected by the Due Process Clause includes

the rights to marry, Loving v. Virginia, 388 U.S.

1 (1967); to have children, Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535 (1942); to direct

the education and upbringing of one’s children,

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

v. Society of Sisters, 268 U.S. 510 (1925); to

marital privacy, Griswold v. Connecticut, 381

U.S. 479 (1965); to use contraception, ibid.;

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

bodily integrity, Rochin v. California, 342 U.S.

165 (1952); and to abortion, [Planned

Parenthood u. Casey, 505 U.S. 833 (1992)].28

27 Planned Parenthood v. Casey, 505.U.S. 833, 851 (1992) OGoint

opinion of O Connor, Kennedy, and Soutér, JJ.); Paul v. Davis, 424

U.S. 693, 713 (1976) (same); Population Services, 431 U.S. at 684-85

(same).

28 Glucksberg, 521 U.S. at 720.

10

“The entire fabric of the Constitution and the purposes

that clearly underlie its specific guarantees

demonstrate that the rights to marital privacy and to

marry and raise a family are of similar order and

magnitude as the fundamental rights specifically

protected.

The fundamental role of marriage and family in our

society has been recognized on many occasions by the

Court. In Zablocki v. Redhail,® the Court invalidated

a Wisconsin statute requiring certain persons to obtain

a court order before marrying:

[T]he right to marry is of fundamental

importance for all individuals. Long ago in

Maynard v. Hill, 125 U.S. 190 (1888), the Court

characterized marriage as “the most important

relation in life,” id., at 205, and as “the

foundation of the family and of society, without

which there would be neither civilization nor

progress,” id., at 211. In Meyer v. Nebraska, 262

U.S. 390 (1923), the Court recognized that the

right “to marry, establish a home, and bring up

children” is a central part of the liberty

protected by the Due Process Clause, id., at 399,

and in Skinner v. Oklahoma ex rel. Williamson,

316 U.S. 535 (1942), marriage was described as

“fundamental to the very existence and survival

of the race,” 316 U.S. at 541.%!

The Court went on to conclude that the right to marry

is one of the “matters of family life” protected by the

29 Griswold, 381 U.S. at 495 (Goldberg, J., joined by Warren,

C.J., and Brennan, J., concurring).

0 434 U.S. 374 (1978).

3! Jd. at 384.

N 11

right of privacy implicit in the Due Process Clause. 32

In Moore v. City of East Cleveland, the Court also dwelt

on the historical role of marriage and the family in

American society: Our decisions establish that the

Constitution protects the sanctity of the family

precisely because the institution of the family is deeply

rooted in this Nation’s history and tradition.“ 8

This Court has never recognized a fundamental

right to engage in sexual activity outside of

monogamous heterosexual marriage, let alone to

engage in homosexual sodomy. Such a right would be

antithetical to the “traditional relation of the family”

that is “as old and as fundamental as our entire

civilization.“ Even the amorphous “right to privacy”

recognized in Griswold and expanded upon in Roe v.

Wade was never intended to include a right to have sex

with whomever and however one pleased. In Roe v.

Wade, this Court stated that the Due Process Clause

does not include “an unlimited right to do with one’s

body as one pleases.”** Twenty-five years later, in

Washington v. Glucksberg, this Court again rejected

the proposition that “all important, intimate, and

— decisions” are protected by the Due Process

use.

82 Id. at 386.

33 431 U.S. at 503 (plurality opinion). See also Cleveland Board

of Education v. LeFleur, 414 U.S. 632, 639-40 (1974) (“This Court

— eee Enea Caten 2 ＋

marriage ily life is one of the liberties the Due

— —— ·(—½.⸗ꝛ

* Griswold, 381 U.S. t 496 ( J.,

C4. ent 1 a — joined by Warren,

35 410 US. at 154.

3% 521 U.S. at 727-28.

12

In his Poe u. Ullman?’ dissent, which foreshadowed

the recognition of the marital right of privacy in

Griswold v. Connecticut, Justice Harlan said that

homosexual activity, even when “concealed in the

home,” was a proper matter of state concern and could

be forbidden by the States:

Yet the very inclusion of the category of

morality among state concerns indicates that

society is not limited in its objects only to the

physical well-being of the community, but has

traditionally concerned itself with the moral

soundness of its people as well. Indeed to

attempt a line between public behavior and that

which is purely consensual or solitary would be

to withdraw from community concern a range of

subjects with which every society in civilized

time has found it necessary to deal. The laws

regarding marriage which provide both when

the sexual powers may be used and the legal

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

must be built upon that basis.“

Not only did Justice Harlan find no fundamental nght

to homosexual activity, he found a fundamental

“pattern . . deeply pressed into the substance of our

social life“ against such practice. Later in his

_

* 367 U.S. 497 (1961).

38 367 U.S. at 545-46 (Harlan, J., dissenting).

13

dissenting opinion, Justice Harlan repeated his

position “that adultery, homosexuality, fornication, and

incest . . . however privately practiced” are subject to

state proscription. °° Subsequently, in Griswold v.

Connecticut, Justice Goldberg wrote a concurring

opinion, joined by Chief Justice Warren and Justice

Brennan, in which he quoted with favor the passage

from Justice Harlan’s Poe v. Ullman dissent stating

that “homosexuality and the like are sexual intimacies

which the State forbids.” “ Justice Goldberg

emphasized that the Court’s holding in Griswold “in no

way interfere[d] with a State’s proper regulation of

sexual promiscuity or misconduct.”*!

Most importantly, in Bowers v. Hardwick, A this

Court squarely rejected the proposition that

homosexual sodomy was a fundamental right. In so

ruling, the Court resisted the temptation to decide

whether laws forbidding homosexual sodomy were

“wise or desirable” or whether they suited “the Justices’

own choice of values.“ Instead, the Court examined

the long history of such laws, acknowledged the “limits

of [its] role,” and proclaimed itself “quite unwilling” to

announce “a fundamental right to engage in

homosexual sodomy.”“* Hardwick affirmed the Court's

89 Id. at 552-53.

381 U.S. at 499 (Goldberg, J., joined by Warren, C.J., and

Brennan, J., concurring).

Id. at 498-99 (Goldberg, J., joined by Warren, C. J., and

Brennan, J., concurring).

* 478 U.S. 186 (1986).

#3 Jd. at 190, 191.

Id.

14

earlier ruling in Rose u. Locke that a Tennessee

sodomy statute did not implicate fundamental rights.“

“Proscriptions against [sodomy] have ancient

roots.”47 “Sodomy was a criminal offense at common

law and was forbidden by the laws of the original

thirteen States when they ratified the Bill of Rights.“ “

In 1868, when the Fourteenth Amendment was

ratified, 32 of the 37 States in the Union had laws

criminalizing sodomy. By 1960, all 50 States had

outlawed sodomy. As of 1986, when the Court decided

Bowers v. Hardwick, 24 States still had anti-sodomy

statutes. “ Today, 14 states, including amici, have laws

proscribing sodomy.™

4 423 U.S. 48 (1975).

“ Jd. at 50 n. 3 (“This is not a case in which the statute

threatens a fundamental right such as freedom of speech so as to

call for any special judicial scrutiny’). See also Doe v.

Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199

(D. Va. 1975) (three-judge panel) (upholding Virginia's anti-sodomy

statute against claims that it violated due process, right to privacy,

and freedom of expression), aff'd, 425 U.S. 901 (1976).

47 478 U.S. at 193-95 (citing Survey on the Constitutional Right

to Privacy in the Context of Homosexual Activity, 40 U. Miami L.

Rev. 521, 525 (1986)).

48 Id.

49 Jd. (citing Survey, 40 U. Miami L. Rev. at 524 n. 9).

80 Ala. Code §§ 13A-6-60(2), 13A-6-65(a)(3); Fla. Stat. Ann. §

800.02; Idaho Code § 18-6605; Kan. Stat. Ann. § 21-3505(a)(1); La.

Rev. Stat. Ann. § 14.89; Mich. Comp. Laws § 750.158, 338 (1991);

Miss. Code Ann. § 97-29-59; N.C. Gen. Stat. § 14-177; Mo. Rev.

Stat. § 566.090; Okla. Stat. tit. 21, f 886; S.C. Code Ann. § 16-15-

120; Tex. Pen. Code §§ 21.01(1), 21.06; Utah Code Ann. § 76-5-

403(1); Va. Code Ann. § 18.2-361(a). In Michigan Org. for Human

Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. Wayne County,

July 9, 1990), the Wayne County Circuit Court held the Michigan

15

“Against this background,” the Court concluded in

Hardwick, “to claim that a right to engage in such

conduct is ‘deeply rooted in this Nation’s history and

tradition’ or ‘implicit in the concept of ordered liberty’

is, at best, facetious.“ 1 In a concurring opinion, Chief

Justice Burger noted that homosexual sodomy had

been forbidden in ancient Rome and by British common

law. 52 Thus, “[t]o hold that the act of homosexual

sodomy is somehow protected as a fundamental right

would be to cast aside millennia of moral teaching.“ 8

Justice Powell echoed Justice Burger’s analysis: “I

cannot say that conduct condemned for hundreds of

years has now become a fundamental right.“

The Court in Hardwick also rejected the fallacious

proposition that private adult conduct occurring in the

home is, because of its location, protected as a

fundamental right. The Court observed that, in

Stanley u. Georgia,® it had held that a person did not

have a right to possess and read obscene material in

the privacy of his home. The right claimed in Stanley

bore some connection to the text of the Constitution,

namely the First Amendment, whereas the right to

state sodomy statute unconstitutional. However, in People v. Lino,

447 Mich. 567, 573 (1994), the Michigan Supreme Court upheld the

state sodomy statute but did not address whether it could

constitutionally be applied to consenting adults.

5! Hardwick, 478 U.S. at 194 (Burger, C. J., concurring).

82 Jd. at 196 (Burger, C. J., concurring). See also Baker v. Wade,

769 F.2d 289, 292 (5th Cir. 1985) (observing “the strong objection to

homosexual conduct, which has prevailed in Western culture for the

past seven centuries”).

58 Hardwick, 478 U.S. at 197 (Burger, C. J., concurring).

54 Id. at 198 n. 2 (Powell, J. concurring).

55 394 U.S. 557 (1969).

16

homosexual sodomy “ha[d] no similar support in the

text of the Constitution” or “prevailing principles for

construing the Fourteenth Amendment.“ s A fortiori,

this Court held that there was no fundamental right to

engage in homosexual sodomy just because it is done

behind closed doors. Plainly enough, otherwise illegal

conduct is not always immunized whenever it occurs in

the home.“ 7

II. The Choice to Engage in Homosexual Sodomy

(As Opposed to the Inclination) Is Not a

Suspect Classification Under The Equal

Protection Clause of the Fourteenth

Amendment.

Almost all state action draws lines or classifies in

some fashion. Inevitably, some persons or behaviors

are disfavored. s The Equal Protection Clause does not

prohibit all discrimination, just discrimination on the

basis of certain suspect classifications.

If a statute does not discriminate on the basis of a

suspect classification, it is subject only to rational basis

review. This standard is used to evaluate “most forms

of state action” and is “the most deferential of

standards” of review. For a state-drawn classification

to have a rational basis, it “must be reasonable, not

86 Hardwick, 478 U.S. at 194-95.

57 Id. at 195.

58 Romer v. Evans, 517 U.S. 620, 631 (1996) (recognizing “the

practical necessity that most legislation classifies for one purpose or

another, with resulting disadvantage to various groups or

persons”).

59 Plyler v. Doe, 457 U.S. 202, 216 (1982).

60 Romer v. Evans, 517 U.S. at 632.

17

arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to the

object of the legislation, so that all persons similarly

circumstanced shall be treated alike.”6! A law does not

fail the rationality test merely if it “seems unwise or

works to the disadvantage of a particular group, or if

the rationale for it seems tenuous.” 62

Texas’s statute prohibiting homosexual sodomy

easily survives rational basis review. Texas is hardly

alone in concluding that homosexual sodomy may have

severe physical, emotional, psychological, and spiritual

consequences, which do not necessarily attend

heterosexual sodomy, and from which Texas’s citizens

need to be protected. Texas’s conclusion, which is

shared by other States, is certainly open to debate, but

a statute does not become irrational for purposes of

equal protection review just because some may hotly

disagree with it.

In Bowers v. Hardwick, the Court did not review

the Georgia anti-sodomy statute under the Equal

Protection Clause.“ Nevertheless, and of significance

for the present case, the Court ruled that the statute

survived rational basis review under the Due Process

Clause, due to “the presumed belief of a majority of the

electorate in Georgia that homosexual sodomy is

immoral and unacceptable.”*4 The Court rejected the

argument, also made in the present case, that the

moral standards of the majority are “an inadequate

—

61 F. S Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

82 Romer v. Evans, 517 U.S. at 632.

63 478 U.S. at 196 n. 8.

64 Id. at 196.

18

rationale to support the law.”® “The law ... is

constantly based on notions of morality, and if all laws

representing essential moral choices are to be

invalidated under the Due Process Clause, the courts

will be very busy indeed.“

Texas’s statute therefore violates the Equal

Protection Clause only if homosexual sodomy is deemed

to be a suspect classification. This Court has never

before so ruled. In Romer v. Evans, upon which

petitioners and their amici heavily rely, this Court did

not apply heightened scrutiny to Amendment 2, the

Colorado law in question.“ Rather, it applied rational

basis review. Amendment 2 provided that no

government unit in Colorado could “enact, adopt or

enforce any statute, regulation, ordinance or policy”

that gave “any minority status, quota preferences,

protected status or claim of discrimination” based on

“homosexual, lesbian or bisexual orientation, conduct,

practices or relationships.” s The Court held that

Amendment 2 was irrational because it imposed a

status-based classification “not to further a proper

legislative end but to make [homosexuals] unequal to

everyone else” in their ability to seek protective

legislation. % The Court also placed emphasis on the

complete lack of historical precedent for a law of that

nature.

85 Id.

86 Id.

67 517 U.S. at 631-32.

68 Id. at 624.

89 Id. at 635.

7 Id. at 633-34.

19

Unlike Amendment 2, Texas’s anti-sodomy statute

does not classify on the basis of status or orientation

but rather on the basis of behavior that is chosen. Nor

does Texas’s statute create some unusual impediment

to being amended in the future, should the citizens of

Texas decide that they no longer want it. Texas's

statute does not penalize a person for being attracted

to another person of the same sex or for identifying

himself or herself as a homosexual. It penalizes the act

of sodomy itself, not the inclination to engage in it.

All of the classifications that this Court has

recognized as suspect under the Equal Protection

Clause pertain to an individual’s status — some

feature of their personhood that they cannot

immediately control. State classifications based on

race, national origin, or alienage are subject to strict

scrutiny.’! State classifications based on gender or

legitimacy are subject to intermediate scrutiny.“2 But

state classifications based on behavior that can be

chosen have never been deemed to be subject to

heightened review of any type. To do so would be the

equivalent of recognizing a new fundamental right.

There is no reason for this Court to introduce further

doctrinal confusion by starting a parallel track of

fundamental rights analysis under the aegis of the

Equal Protection Clause of the Fourteenth

Amendment.

This Court should save for another day the question

whether state discrimination on the basis of sexual

orientation, as opposed to sexual activity, is subject to

™ Palmore v. Sidoti, 466 U.S. 429 (1984); Plyler u. Doe, 457

U.S. 202 (1982).

United States v. Virginia, 518 U.S. 515 (1996); Clark v. Jeter,

486 U.S. 456 (1988).

20

heightened scrutiny under the Equal Protection

Clause. A ruling on that question might have

implications not just for the anti-sodomy statutes of

Texas and amici, but also for laws that prohibit same-

sex marriages and laws that permit only heterosexual

couples to adopt. The Equal Protection Clause is too

blunt an instrument with which to evaluate the

constitutionality of the statute at issue in this case.

III. Recognizing a Fundamental Constitutional

Right to Engage in Homosexual Sodomy Will

Damage the Legitimacy of this Court and

Enshrine a Dangerously Expansive Concept of

Individual Freedom.

Contrary to the implication of petitioners and their

amici, the question whether homosexual sodomy is a

fundamental right should not be resolved by perusing

the latest public opinion poll (which might in all events

militate against recognition of the right). Rather, the

question should be resolved according to whether the

right has been historically recognized in this country.

Under any disciplined analysis, petitioners and their

amici cannot meet this test. The freedom to engage in

homosexual sodomy is not implicit in the concept of

ordered liberty, it has not been historically recognized

as a right (to the contrary, it has been historically

recognized as a wrong), and it has been explicitly

rejected as a fundamental right by this Court in

Bowers v. Hardwick. To recognize it now as a

fundamental right would undermine public respect for

the rule of law and would do serious damage to the

legitimacy of this Court. It would also create an

individual right not limited to homosexual sodomy but

covering a variety of dangerous activities that have

traditionally been within the police powers of the

States.

21

First, far from supporting its recognition as a

fundamental right, the recent trend toward

decriminalizing homosexual activity confirms that the

asserted right is not historically rooted. It also shows

that the legislative process van be trusted to work, at

least as far as petitioners are concerned, without

judicial intervention. The fact that some States, like

amici, have not gone along with the trend is simply an

example of how this country’s federalist system works.

Different States have different views on the issue.

Allowing laws in some States to create a constitutional

right that overrides the laws of other States is a

perverse theory of constitutional jurisprudence. If the

trend were to reverse, would the constitutional right

cease to exist? Likely the question would never have to

be answered, because reversing the trend would

require the States to legislate in defiance of the newly-

minted constitutional right. This theory thus

essentially operates as a one-way ratchet in favor of

liberalism. It forces uniformity en a system of

governance that was deliberately designed to

ameliorate social conflict by permitting diversity and

experimentation among the various States.73

Second, thlis] Court’s legitimacy depends on

making legally principled decisions under

circumstances in which their principled character is

sufficiently plausible to be accepted by the Nation.“

Yet petitioners ask this Court to discard the historical

analysis it has traditionally employed in determining

8 Harmelin v. Michigan, 510 U.S. 957, 990 (1991) (“Diversity

not only in policy, but in the means of implementing policy, is the

very raison d etre of our federal system”) (Scalia, J., concurring,

joined by Rehnquist, C.J.).

™ Planned Parenthood, 505 U.S. at 866 (joint opinion of

O'Connor, Kennedy, and Souter, JJ.).

22

the existence of non-textual due process rights, and

they ask this Court to overrule a precedent directly on

point without any of the traditional justifications for

departing from the doctrine of stare decisis. Accepting

petitioners’ invitation will take this Court perilously

down the path toward permanently ensconcing itself as

the final arbiter of the kulturkampf that is currently

being waged over such sensitive and divisive social

issues as abortion, sexual freedom, gender identity, the

definition of the family, adoption of children,

euthanasia, stem cell research, human cloning, and so

forth. If Roe v. Wade and its progeny have taught one

lesson, it is that judicial attempts to resolve social

disputes of this nature do not have a calming and

stabilizing effect on our society. The people of this

Nation do not regard as final and authoritative the

rulings of this Court that stray afield from the text and

history of the Constitution or statute at issue. Rather,

they begin to regard the Court as just one more

political branch, and they shift their political energies

to changing the composition of the Court and to

lobbying the Court through public demonstrations and

media exhortations to “do the right thing.” Tragically

lost in the furor over who wins what social dispute is a

public understanding of and respect for the rule of law,

which is supposed to transcend ideology and shifting

political fancies and is supposed to inspire reverence

for and confidence in the legitimacy of our government.

In Marbury v. Madison,” Chief Justice Marshall

premised this Court’s power of judicial review on the

irrefutable principles that the Court had an obligation

to apply law to decide the case at hand and that a

78 5 U.S. (1 Cranch) 137 (1803).

23

written Constitution was the highest law of the land. “e

Those who apply the rule to particular cases, must of

necessity expound and interpret that rule.” *

Axiomatic to this seemingly aggressive assertion of the

judicial role was that the courts would treat the

written Constitution as law — as an objective,

transcendent, binding force, composed of discernible

rules that are applied consistently from case to case

and that are bound together by logic and reason.

Modern legal realism and critical legal theory

notwithstanding, the written Constitution is not a

malleable substance that can be deconstructed to the

point that it lacks all meaningful content, and then

reconstructed to conform to the will of the magistrate

or official who is responsible to apply the law to the

case at hand. If it could be, it would no longer be law.

Law cannot change from case to case according to

the wishes of the judges and litigants. Stare decisis

allows for exceptions, to be sure, for the law can never

be static; but the exceptions must remain exceptions

for the law to remain law. None of the conditions that

this Court has recognized for departing from the

doctrine of stare decisis apply to this case. Bowers v.

Hardwick has not proven unworkable? the States and

the people who live in those States have relied upon

Hardwick by enacting anti-sodomy legislation; and the

“doctrinal footings” of Hardwick have not been

eroded. If anything, in the fifteen years since

Hardwick, this Court has cut back on its definition of

6 Id. at 177.

* Id.

See Planned Parenthood, 505 U.S. at 854-61 (joint opini

„ 8. opinion of

0 Connor. Kennedy, and Souter, JJ.) (discussing and applying

principles of stare decisis to Roe v. Wade).

24

the non-textual right to privacy. In Planned

Parenthood v. Casey, the Court affirmed the central

holding of Roe v. Wade but permitted the States to take

greater steps to protect the life of the unborn child than

it had before. And in Washington v. Glucksberg, the

Court refused to expand the right to privacy to

encompass the right to die with the assistance of a

physician. Nothing in these decisions augured an

expansion of the right to privacy to include

extramarital sexual activity of any sort.

Overruling Bowers v. Hardwick under pressure

from those who dislike Texas’s anti-sodomy statute or

who are impatient with the legislative process will

cause many to assume that “justifiable reexamination

of principle hals] given way to drives for particular

results in the short term“ The overruling would

come at the possible “cost of both profound and

unnecessary damage to the Court’s legitimacy, and to

the Nation’s commitment to the rule of law.” “The

Court is most vulnerable and comes nearest to

illegitimacy when it deals with judge-made

constitutional law having little or no cognizable roots

in the language or design of the Constitution.”*' As

noted, judicial review was premised on the supremacy

of the written Constitution. While this Nation has

accepted the existence of certain non-textual

constitutional rights in the Civil War Amendments, it

has done so only because this Court has taken care to

articulate those rights with specificity and to ensure

planned Parenthood, 505 U.S. at 866 (joint opinion of

O Connor, Kennedy, and Souter, JJ).

8 Jd. at 869 (joint opinion of O’Connor, Kennedy, and Souter,

JJ.).

8! Hardwick, 478 U.S. at 194.

25

that the rights were firmly grounded in this Nation’s

traditions. The sexual revolution that transpired in

the 1960s is insufficient warrant to read into the

Constitution a whole new set of “fundamental” rights.

Third and finally, the right that petitioners

advocate is 80 expansively defined that it will

inevitably cover a variety of supposedly consensual

adult activity that has always been considered to be

within the traditional police power of the States.

Among the liberties protected by the Constitution,”

petitioners claim (Br. 10), “is the right of an adult to

make choices about whether and in what manner to

engage in private consensual sexual intimacy with

another adult, including one of the same sex.”

According to petitioners (Br. 8, 12-13), ſolne's sexual

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

and how to connect sexually are profound attributes of

personhood where compulsion by the State is

anathema to liberty.” The scope of these claimed rights

is breathtaking.

It should be noted, again, that the Texas statute in

question does not criminalize petitioners’ sexual

orventation, which may or may not be a matter of choice

and thus may arguably be protected from state

discrimination by the Equal Protection Clause of the

Fourteenth Amendment. Rather, the Texas anti-

sodomy statute criminalizes petitioners’ sexual activity,

_ which is indisputably a matter of choice. Petitioners’

protestations to the contrary notwithstanding, a

constitutional right that protects “the choice of one’s

partner” and “whether and how to connect sexually”

must logically extend to activities like prostitution,

— 8 bestiality, possession of child

rnography, and even incest and hilia (if

child should credibly claim to be —, ). Poe —

26

intents and purposes, petitioners seek to enshrine as

the defining tenet of modern constitutional

jurisprudence the sophomoric libertarian mantra from

the musical “Hair”: be free, be whatever you are, do

whatever you want to do, just as long as you don't hurt

anybody.”*? Bracketing for the moment the dubious

proposition that any human behavior is purely self-

affecting, suffice it to say that so expansive and

undisciplined an interpretation of the Fourteenth

Amendment would constitute a radical departure from

the historical analysis that = Court — *

employed in its fundamental rights jurispru ence.

— the very principle rejected by this Court

in Roe v. Wade, that one has an unlimited right to do

with one’s body as one pleases. And it would ignore

this Court’s admonition in Glucksberg that the

Fourteenth Amendment does not protect “any and all

important, intimate, and personal decisions.”**

Contrary to the cliché so tritely tossed about in

freshman poli-sci courses, the States can and must

legislate morality. John Stuart Mill is not a founding

father.** “Every society in civilized tine . has

icti Hair: The

82 Gerome Ragni & James Rado, My Conviction, on

American Tribal Love-Rock Musical — The Original Broadway Cast

Recording (RCA Victor 1968) (transcribed by David Pirmann, 1993).

83 410 US. at 154.

84 521 US. at 725, 727-28.

85 Aristotle, Nicomachean Ethics bk. 2, ch. 1, 1 3 (W.D. Ross

trans., 1908) (“for legislators make the citizens good by

habits in them, and this is the wish of every legislator, and those

who do not effect it miss their mark, and it is in this that a good

constitution differs from a bad one”).

8 Cf John Stuart Mill, On Liberty ch 1, 19 (1869) (“the only

purpose for which power can be rightfully exercised over any

member of a civilized community, against his will, is to prevent

27

traditionally concerned itself with the moral soundness

of its people. The mark of a free society is not just

the right of the individual “to define [his or her] own

concept of existence. and of the mystery of human

life. ss It is also the right of the individual to join with

other individuals and form communities that define

and order themselves according to shared beliefs.

Human beings are by their nature social creatures,

with concerns for the physical and moral welfare of

others besides themselves. And “in a democratic

society legislatures, not courts, are constituted to

respond to the will and consequently the moral values

of the people.“ e

Even legislation that is largely symbolic and

infrequently enforced (due to other salutary checks on

government power, like the Fourth Amendment) has

significant pedagogical value. Laws teach people what

they should and should not do, based on the

experiences of their elders. The States should not be

required to accept, as a matter of constitutional

doctrine, that homosexual activity is harmless and does

not expose both the individual and the public to

deleterious spiritual and physical consequences. Those

who object to traditional attitudes about homosexual

harm to others”); Commonwealth v. Bonadio, 415 A.2d 47, 50-51

(Pa. 1980) (quoting Mill in concluding that Pennsylvania’s anti-

sodomy statute violates equal protection).

8’ Poe u. Ullman, 367 U.S. 497, 545-46 (1961) (Harlan, J.,

dissenting).

Planned Parenthood, 505 U.S. at 852 (joint opinion of

O’Connor, Kennedy, and Souter, JJ.)

Gregg v. Georgia, 428 U.S. 153, 175-76 (1976) OCoint opinion

of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia,

408 U.S. 238, 383 (1972) (Burger, C. J., concurring).

28

conduct should take their case to the legislatures of the

States, where the views and experiences of all citizens

can be considered and shaped into a consensus policy.

When the text and history of the Constitution is silent

about the existence of a particular right, the legislature

is the proper place for recognition of the new right.

The courtroom is not.

CONCLUSION

For the foregoing reasons, the judgment of the

Fourteenth Court of Appeals of Texas should be

affirmed.

February 18, 2003

Respectfully submitted,

William H. Pryor Jr.

Attorney General

Nathan A. Forrester

Solicitor General

Counsel of Record *

STATE OF ALABAMA

Office of the Attorney General

11 South Union Street

Montgomery, AL 36130-0152

(334) 242-7401, 353-9782 *

(Additional counsel for amici

curiae are listed on the cover.)