Amicus Curiae Brief — Lawrence v. Texas

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Supreme Comt. 1S |

FIL DG

FEB 18 2003

No. 02-102

IN THE

Supreme Court of the Gnited States

JOHN GEDDES LAWRENCE AND TYRON GARNER,

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ of Certiorari

To The Court of Appeals of Texas

Fourteenth District

BRIEF OF AMICUS CURIAE

CONCERNED WOMEN FOR AMERICA,

IN SUPPORT OF THE STATE OF TEXAS, RESPONDENT

JANET M. LARUE

Counsel of Record

THOMAS L. JIPPING

Concerned Women for America

1015 Fifteenth Street, NW, Ste. 1100

Washington, D.C. 20005

(202) 488-7000

Counsel for Amicus Curiae

i A

IBEST AVAILABLE COP

TABLE OF CONTENTS

PAGE

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ARGUMENT

I. THE PETITION FOR THE WRIT OF CERTIORARI

SHOULD BE DISMISSED AS IMPROVIDENTLY

EST ne Sore ee! Oe See 4

A. When The Record Below Does Not

Provide A Sufficient Basis For The

Questions On Which A Petition For

Certiorari Was Granted, The Petition

Should Be Dismissed. .......................0005 4

B. The Record Below In This Case Does

Not Provide A Sufficient Basis For The

Court To Decide Whether Petitioners

Were Discriminated Against In Violation

Of The Fourteenth Amendment To The

United States Constitution........................5

PETITIONERS CANNOT SUSTAIN A FACIAL

CHALLENGE TO THE STATUTES UNDER THE

STANDARD ARTICULATED BY THE COURT

IN U.S. v. SALERNO; THEREFORE THE DECISION

BY THE COURT BELOW SHOULD BE AFFIRMED.........6

PAGE

Ill. TEXAS PENAL CODE §§ 21.06 AND 21.01

Do NOT VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION. .........-2.+ 00087

A. The Statutes On Their Face

Do Not Discriminate On The Basis

Of Sex (Gender) Or Sexual Orientation

And Apply Equally To Both Sexes............ 7

B. For Equal Protection Purposes

“Deviate Sexual Intercourse” Is

Not A Fundamental Right ..................4. 13

c. For Equal Protection Purposes,

Sexual Orientation Is Not A Suspect

Illia idan dieiadegaeebioosvocccoosoces 16

D. Protecting Public Morals, Health

And Safety Is A Rational, If Not

Compelling, Reason To Prohibit

“Deviate Sexual Intercourse”.................. 24

E. Absent An Express Constitutional

Violation, Courts Should Defer

To State Legislative Authority To

Protect Public Health, Safety and Morals ...27

Asti ciriiancauneeecnvensosescecooosecovcosccess 30

Tt dlr crtncinncncesansnscesenccnontoossocosont 31

ill

TABLE OF AUTHORITIES

Page

Federal Cases

Ada v. Guam Soc'y of Obstetricians & Gynecologists,

SEITE ee ene ere eee 7

Allen v. Wood, 970 F. Supp. 824 (E.D. Wash. 1997)........... 10

Am. Amusement Mach. Ass'n v. Kendrick,

le ge | 25

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ......... 3, 28

Ben-Shalom v. Marsh, 881 F.2d 454 (7" Cir. 1989).........+«: 17

Bibby v. Philadelphia Coca-Cola Bottling Co.,

85 F. Supp.2d 515 (E.D. Pa. 2000) ...0...........ecccceeseereeeeeees 1]

Board of Education v. Pico, 457 U.S. 853 (1982) ........c..00++: 4

Bowen v. Gilliard, 483 U.S. 587 (1987) ..........c0s000e0 3, 16, 17

Bowers v. Hardwick,

Gs ee 14, 15, 16, 24, 25, 26

Bray v. Alexandria Women's Health Clinic,

Eee eae are re 12

Burns Baking Co. v. Bryan, 264 U.S. 504 (1924)............ 28

City of Cleburne v. Cleburne Living Ctr., Inc.,

eco 13, 16, 17, 20

Dennis v. United States, 341 U.S. 494 (1951) ........cccccccceeees 28

Eisenstadt v. Baird, 405 U.S. 438 (1972) .........cc00000 3, 13, 24

Ford Powell v. Chase Riveland,

991 F. Supp. 1249 (W.D. Wash. 1997) ..000.......:cccccecseeeeees 10

Graham v. Richardson, 403 U.S. 365 (1971) .........ccccceeeeeees 17

Griswold v. Connecticut,

LE TE 3, 13, 14, 24, 28, 30

Hamiling v. United States, 418 U.S. 87 (1974).........cccceeeeees 25

Harris v. McRae, 498 U.S. 297 (1982) .......cccccceeesecerseeeeees 15

High Tech Gays v. Defense Ind. Sec. Clearance Off.,

I eal 17

Hillsborough County v. Automated Medical Laboratories,

ae Stes PUN Se recrcededdvccessscesccnnsanpensesecet 26

Holland v. Illinois, 493 U.S. 474 (1990)........ccccscceeeeeeeeeees 17

Illinois v. Gates, 462 U.S. 213 (1982) .........cccecccseeeseeeeeenees 2,4

Korematsu v. United States, 323 U.S. 214 (1944) ...........00+ 17

Lockhart v. McCree, 476 U.S. 162 (1986)............ccseceeeeeees 17

Loving v. Virginia, 388 U.S. 1 (1967)........creeereeeereneeneees 17

Massachusetts Bd. of Retirement v. Murgia,

of) dl 17

McLaughlin v. Florida, 379 U.S. 184 (1964) .........-cceseeseeee 22

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)...........ccceeeees 26

Meinhold v. U.S. Department of Defense,

TI gd l,l 7

Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S.

Fe i cctccsescncsvsistincneninatmnniietintiaieneenidl 26

Mishkin v. New York, 383 U.S. 502 (1966)...........ccceeeceeeeees 25

Moore v. City of East Cleveland, 431 U.S. 494 (1977)...... 14

New York v. Uplinger, 467 U.S. 246 (1984) .........cccecseesees 2,4

Oncale v. Sundowner Offshore Services, Inc.,

GI, HPI hi nnenccicnidunmniinnphinidennseneneconsentt 12

Ohio v. Akron Ctr. For Reproductive Health,

497 U.S. 502

Pi cceniicnccennsnnteineannimminenmneunennaennencscianenedion 7

Padula v. Webster, $22 F.2d 97 (D.C. Cir. 1987)..........00+. 17

Palko v. Connecticut, 302 U.S. 319 (1937) ......c.cccsecceeereeees 14

Paris Adult Theatre I v. Slaton,

a a cetetiernnminenn 3, 14, 28, 29

Personnel Administrator of Massachusetts v. Feeny,

442 U.S. 256

(| SAARC SRE see sone eae re a 12, 13

Pinkus v. United States, 436 U.S. 293 (1978) ......ceccssesseseeees 25

Plyler v. Doe, 457 U.S. 202 (1981) ....cve-sesssesseesseessesenessneenees 17

Pruitt v. Cheney, 963 F.2d 1160 (9 Cir. 1991)........c0csesses0e+ 8

Romer v. Evans, 517 U.S. 620 (1996).........c-cceceseeeereees passim

San Antonio Independent School Dist. v. Rodriguez,

ETI Ae ASE ae SER 16, 17

Sas v. Maryland, 295 F. Supp. 389 (D. Md. 1969).........-++-. 10

Skinner v. Oklahoma, 316 U.S. 535 (1942) ....cc-ceccereereereees 22

Stanley v. Georgia, 393 U.S. 557 (1969) .......cccccccccceseeeeeeeee 15

Thomas v. United States, 519 U.S. 82 (1996) .........c.cccccc0e0e 25

Tyson & Brother v. Banton, 273 U.S. 418 (1927)........00000.- 28

United States v. Salerno, 481 U.S. 739 (1987).............. 2,7

United States v. Thomas, 74 F.3d 701 (6" Cir. 1996).......... 25

United States v. Virginia, 518 U.S. 515 (1996) ............... 12

Washington v. Davis, 426 U.S. 229 (1976)........ccccccsseseeseeee 21

Watkins v. U.S. Army, 875 F.2d 699 (9" Cir. 1989) ......c.c000-. 8

Webster v. Reproductive Health Services,

492 U.S. 490

REE RO SO A eee, eee a ee 7

West Virginia State Bd. of Educ. v. Barnette,

I i 28

Woodward v. United States,

~ $71 F.2d 1068 (Fed. Cir. 1969).................cccccccceccccccecccecee 17

State Cases

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)................. 22

Brewer v. Hillard, 15 S.W.3d 1 (Ky. App. 1999)............0-.. 10

Goins v. West Group, Inc.,

a ey Se I I icceresicssitniireensianinmaneseaaeann 1]

Lawrence v. Texas,

41 S.W.2d 349 (Tex. App. 2001) ..........cccccceseeees 6, 8, 14, 21

State Statutes

Georgia Criminal Code § 16-6-2..............csceceeeeeeeeecens 24

A en 5

EL TER ee RS TS TS 5

Other Authorities

4.C. Butler, Trends in Same-Gender Sexual Partnering,

J. of Sex Research 333 (1988-1998)

<http://www.mygenes.co.nz/updates.html................+++.8

American Psychiatric Association: Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition,

Text Revision 535 (Washington, DC, American

PsychiatricAssociation, 2000)...............sccseeeeeeees 10, 22

Ronald Bayer, PhD, Homosexuality and American

Psychiatry: The Politics of Diagnosis 3-4 (New York:

ND Gi iictnnccsodsanccndvadstiasnadimesnenssnecen 23

Terry Beswick, Bareback ‘Outings’ Spark Debate Over

Well-Known Secret, The Bay Area Reporter, July 27, 2000

<http://www.aegis.com/news/bar/2000/BR000705.

i cipunicisinnnidndenauindibenmensendbinetteatiidnmeinnididameieenees 27

Lou Chibarro, A Hard Line On ‘Soft Money’ Washington

Se SE A ID ecectrecentntocdncnstoninnmnenibinsinens 18

Gregory A. Freeman, /n Search of Death, Rolling Stone, Feb.

Ast ininitnnsabtbbandidnteseneincdinnanbanniniinndgnee 27

GLAAD, “Our History,” available at

http://www.glaad.org/about/history.php.................... 19

Lisa Keen, Groups Tout Clout, The Washington Blade,

nee eceee. Senne 18

Lisa Krieger, Judicial Election Shatters Barrier; First Gay

Elected to Superior Court, San Francisco Examiner,

ee CEE cncccundnesamennninsnmdienaiandives 18

Peter LaBarbera, Just How ‘Gay Is The New York Times,

<http://www.cultureandfamily. org/articledisplay. asp?id=3

Matthew Laza, Men Who Want Aids, The Spectator,

Feb. 1, 2003:

<http://www.spectator.co.uk/article.php3?table=old&secti

on=current&issue=2003-02-0 1 &id=2744;...............0 27

Vii

Walter Neary, Al] Women Should Be Getting Regular Pap

Tests, Study Shows, University Week July 19, 2001

<http://depts. washington.edu/~uweek/archives/

2001.07. JUL_19/_article9 html...................ceeeeeeeeeee 9

News of the Year; 2002 Time Line, The Advocate,

i naathnentilieiaitansnenbetinnemuninentn 18, 19

Online Partners

<http://www.onlinepartners.com/pages/market.html......20

PC 101, Wash. Times, May 27, 1992, at B1.................. 23

“The Pedophilia/Pedophile Education Web Site Mirror”

<http://lege.cz/win.en/archiv/pedol .htm.................... 23

Marcia Philbin, Branching Out, Miami Daily Business

eee 20

Andrew Rapp, “Try Coming Out as Bisexual”

<http://www.baywindows.com/

main.cfm?include=detail&storyid=34151 ................0 8

Russian Roulette: The Story Behind the Story (CBC

television broadcast, Nov. 21, 2001)

<http://www.cbc.ca/disclosure/archives/0111_russianroule

ED Sivintinncicnsniauticcnisndumeimasedannvets 27

Gunter Schmidt, D.Phil., Male Jntergenerational Intimacy, J.

HOMOSEXUALITY, Vol. 20, nos. 1/2, 1990.................. 23

Melissa Schorr, “Bisexual Women More at Risk: May Serve

as ‘Bridge’ to Bring STDs to Their Female Partners,”

<http://abcnews.go.com/sections/living/DailyNews/

IT ctr iicntnrntateidsaniiiaimenuaesnecnetl 9

Selig Center for Growth, University of Georgia

<://www.onlinepartners.com/pages/market.html.......... 20

Katherine Sender, “Business, not Politics”: Gays, Lesbians,

Bisexuals, Transgender People and the Consumer Sphere

(GLAAD Center for the Study of Media and Society,

Survey on the Constitutional Right to Privacy

in the Context of Homosexual Activity,

40 U. Miami L. Rev. (1906)............c.c.cccscsccssscsesseses soeeee .26

viii

They Call it Polyluv, N.Y. Times Magazine, Feb. 16, 1997,

Goction 6, at 15..:....cccccccccccecceccccsccsescsccccccccssecees 23

UNITED STATES CONGRESS, OFFICE OF TECHNOLOGY

ASSESSMENT, REVIEW OF THE PUBLIC HEALTH SERVICES

RESPONSE TO AIDS 6 (WASH., D.C.)

(pub. No. OTA- TM-H-24) (Feb. 1985)........0.-0ee+eeeees 26

Zeller, Marching On, but Apart, The National Journal, Jan.

BD. BOGB. .cocececcccccecsesccccccsccccccsccssscocecconessccssess 18

INTEREST OF AMICUS CURIAE

Concerned Women for America (“CWA”) is the

nation’s largest public policy organization for women.

Located in Washington, D.C., CWA is a non-profit

organization that provides policy analysis to Congress, state

and local legislatures and assistance to pro-family

organizations through research papers and publications.

CWA seeks to inform the news media, the academic

community, business leaders and the general public about

family, cultural and constitutional issues that affect the

nation. CWA has participated in numerous amicus curiae

briefs in the United States Supreme Court, lower federal

courts and state courts.’

The issues in this case directly affect the

constitutional right of the states to exercise their police

power to protect public health, safety and morals.

CONSENT TO FILE BRIEF

Petitioners and Respondent, through their counsel of

record respectively, have granted consent to the filing of this

Brief Amicus Curiae in support of Respondent. Their letters

of consent are on file with the Clerk of the Court. ~

SUMMARY OF ARGUMENT

Amicus respectfully urges this Court to dismiss the

Petition for Certiorari as improvidently granted because the

' This brief was authored by Janet M. LaRue, Chief Legal Counsel for

Concerned Women for America, and no part of the brief was authored by

any attorney for a party. No person or entity other than this amicus curiae

or its counsel made any monetary contribution to the preparation or

submission of this brief. Rule 37 (6).

record below does not provide a sufficient basis for the Court

to decide the questions on which certiorari was granted.” In

the alternative, the Court is urged to affirm the decision

below because Petitioners cannot sustain their burden to

demonstrate that no set of circumstances exists under which

the statutes would be valid.” |

The record below is virtually nonexistent, except for

the scant statement that the arresting officers “observed

appellants engaged in deviate sexual intercourse.” Nothing in

the record establishes whether the conduct was consensual,

noncommercial, or whether anyone else was present to

observe the conduct. Nothing establishes that the arresting

officers knew Petitioners’ sexual orientation at the time of

the arrest or that it mattered to the officers. Furthermore,

Petitioners did not establish in the proceedings below that

they are homosexuals. Petitioners concede that there are

circumstances under which the statues may be validly

enforced.

The Texas statutes at issue do not violate the Equal

Protection Clause of the Fourteenth Amendment to the

United States Constitution. The statutes are facially neutral

in that they prohibit same-sex “deviate sexual intercourse.”

They criminalize conduct, not status. The statutes do not

discriminate on the basis of sexual orientation or sex

(gender) because they apply equally to two women or two

men regardless of their orientation. Even if the statutes

discriminated on the basis of sexual orientation, for equal

? New York v. Uplinger, 467 U.S. 246 (1984); Illinois v. Gates, 462 U.S.

213 (1982) (writ of certiorari to review a decision holding

unconstitutional a New York law prohibiting loitering for the purpose of

engaging or soliciting another person to engage in deviate sexual

intercourse).

> United States v. Salerno, 481 U.S. 739 (1987).

protection purposes, sexual orientation is not entitled to

anything more than rational basis scrutiny.*

Homosexuals do not meet the criteria for a “suspect

class” because they do not meet the “traditional indicia of

suspectness.”” Homosexuals have enormous political, legal,

cultural and economic power according to their own

publications. If the Court were to extend heightened

protection to homosexual “orientation,” the Court would

open the door to equal protection claims by numerous groups

seeking minority status on the basis of their sexual

“orientation.” Immutable characteristics, not conduct, should

remain the basis for identifying a “suspect” class.

The statutes do not violate a fundamental

constitutional right. There is no constitutional zone of

privacy that shields same-sex “deviate sexual intercourse”

from state regulation.° Protecting public health, safety and

morals is a rational, if not compelling, reason to prohibit

same-sex “deviate sexual intercourse.”

The Court is respectfully urged to defer to the police

power authority of the State of Texas to do so under the

statutes in question.’

* Romer v. Evans, 517 U.S. 620 (1996).

* Bowen v. Gilliard, 483 U.S. 587 (1987).

° Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405

U.S. 438 (1972).

” Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Paris Adult Theatre

I v. Slaton, 413 U.S. 49 (1973).

ARGUMENT

1. THE PETITION FOR THE WRIT OF CERTIORAKi

SHOULD BE DISMISSED AS IMPROVIDENTLY

GRANTED

A. When The Record Below Does Not Provide A

Sufficient Basis For The Court To Decide The

Constitutional Questions On Which A

Petition For Certiorari Was Granted, The

Petition Should Be Dismissed.

In Uplinger, supra, Justice Stevens concurred in

dismissing a cert. petition after full briefing and oral

argument. He reasoned that when the “posture, record, or

presentation of issues makes it an unwise vehicle for

exercising the ‘gravest and most delicate’ function that this

Court is called upon to perform, the Rule of Four should 1 not

reach so far as to compel the majority to decide the case.”*

In Gates, supra, the Court emphasized the need of a

sufficient factual record to rule on a question:

Where difficult issues of great public importance are

involved, there are strong reasons to adhere

scrupulously to the customary limitations on our

discretion. By doing so we “promote respect . . . for

the Court's adjudicatory process [and] the stability of

four] decisions.” ... Moreover, fidelity to the rule

guarantees that a factual record will be available to

us, thereby discouraging the framing of broad rules,

seemingly sensible on one set of facts, which may

prove ill-considered in other circumstances. * [Internal

citation omitted. }

* Uplinger, 467 U.S. at 251.

* Gates, 462 U.S. at 224; See Board of Education v. Pico, 457 U.S. 853

(1982) (White, J. dissenting.).

B. The Record Below In This Case Does Not

Provide A Sufficient Basis For The Court To

Decide Whether Petitioners Were

Discriminated Against In Violation Of The

Fourteenth Amendment To The United States

Constitution; Therefore, The Petition for

Certiorari Should Be Dismissed

Texas Penal Code §§ 21.06 and 21.01 (“statutes”),

under which Petitioners were charged, prohibit same-sex

“deviate sexual intercourse” whether oral or anal. Sexual

orientation is not an element of the offense. '°

The statutes do not discriminate on their face on the

basis of sexual orientation or any persons or classes of

persons. They criminalize sexual conduct not sexual

orientation or status. Although “homose*:ual conduct” is the

title of § 21.06, it may be applied to heterosexuals,

homosexuals, lesbians or bisexuals. Texas is not required to

prove the- sexual orientation of the persons in order to

prosecute. Liability is based solely on whether persons of the

same sex engaged in “deviate sexual intercourse” with each

other.

The statutes do not discriminate based on sex

(gender). They are enforceable against a woman who

engages in “deviate sexual intercourse” with another woman

and a man who does so with another man.

'° Texas Penal Code § 21.06: “Homosexual Conduct: (a) A person

commits an offense if he engages in deviate sexual intercourse with

another individual of the same sex. (b) An offense under this section is a

Class C misdemeanor.”

Tex. Pen. Code § 21.01: “(1) ‘Deviate sexual intercourse’ means: (A) any

contact between any part of the genitals of one person and the mouth or

anus of another person; or (B) the penetration of the genitals or the anus

of another person with an object.”

The record below consists only of two one-page

probable cause affidavits filed by the arresting officers. The

affidavits are identical except for the identification of the

defendant [each a Petitioner herein]. The opinion below

includes a scant statement from the record describing the

incident that led to the arrests: “While investigating a

reported ‘weapons disturbance,’ police entered a residence

where they observed appellants engaged in deviate sexual

intercourse.” |

Nothing in the record below indicates whether the

sex act was consensual or noncommercial, or whether

anyone else was present to observe the conduct. Nothing in

the record indicates that the arresting officers knew or had

any basis to know Petitioners’ sexual orientation at the time

of the arrest. Nothing in the record indicates that the sexual

orientation of Petitioners was a reason for the arrests.

Nothing in the record provides any basis to presume that the

officers would not have arrested Petitioners if the officers

had believed Petitioners to be heterosexual or bisexual.

Furthermore, Petitioners did not establish in the proceedings

below that they are homosexuals.

Nothing in the record provides a sufficient basis for

the Court to decide the constitutional questions on which the

Petition for Certiorari was granted. For that reason, amicus

respectfully urges the Court to dismiss the Petition as

improvidently granted.

Il. PETITIONERS CANNOT SUSTAIN A_ FACIAL

CHALLENGE TO THE STATUTES UNDER THE

STANDARD ARTICULATED BY THE COURT IN U.S. V.

SALERNO; THEREFORE THE DECISION BY THE

COURT BELOW SHOULD BE AFFIRMED

'' Lawrence v. Texas, 41 S.W.2d 349, 350 (Tex. App. 2001). See also

Brief of Petitioners at 3.

Petitioners are making a facial challenge to the

Statutes. As such, they “must establish that no set of

circumstances exists under which the Act would be valid.”'”

Petitioners concede that the statutes could be enforced

against same-sex sodomy where there is no valid consent, or

to same-sex sodomy involving prostitution, or to same-sex

sodomy in public view. Each constitutes circumstances

under which the statutes could be validly enforced.

Amicus respectfully urges the Court to affirm the

decision below. -

Ill. TEXAS PENAL CODE §§ 21.06 AND 21.01 Do Not

VIOLATE THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION

A. The Statutes On Their Face Do Not

Discriminate On The Basis Of Sex

(Gender) Or Sexual Orientation And

Apply Equally To Both Sexes.

1. Sexual Orientation:

Amicus contends that Petitioners have no valid basis

to raise or sustain a facial challenge to the statutes on equal

protection grounds because they did not assert in the

proceedings below that they are homosexuals. Furthermore,

the statutes are directed at same-sex conduct and not

orientation or status.'* See Section I., supra.

'? Salerno, 481 U.S. at 745; Ohio v. Akron Ctr. For Reproductive Health,

497 U.S. 502, 514 (1990) (citing Webster v. Reproductive Health

Services, 492 U.S. 490, 524 (1987) (O’Connor, J., concurring.)); Ada v.

Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011 (1992)

(Scalia, J. dissenting from denial of cert.).

'? Meinhold v. U.S. Department of Defense 34 F.3d 1469, 1478 (9" Cir.

1994) (recognizing Robinson rule that criminal penalties may be inflicted

The court below correctly concluded: “[W]e cannot

assume homosexual conduct is limited only to those

possessing a homosexual ‘orientation.’ Persons having a

predominately heterosexual inclination may sometimes

engage in homosexual conduct. Thus, the statute’s

proscription applies, facially at least, without respect to a

defendant’s sexual orientation.”"*

A recent survey revealed that the percentage of

people having same-sex partners had significantly increased

over the prior year for both men and women; however, the

number of exclusively homosexual men and women did not

change significantly. The author attributed changes to

homosexual experimentation by those previously exclusively

heterosexual, in the more accepting social climate today."

Bay Windows, self-described as “New England’s

Largest Gay & Lesbian Newspaper,” published an editorial

citing “repeated studies of sexuality,” which “have found

that much of the American public is functionally bisexual

over the course of their lifetime, experiencing attraction or

engaging in sexual contact with people of both genders.”"°

A very high percentage of bisexual women engage in

sex with men, including homosexual men. Dr. Jeanne

Marrazzo, an assistant professor of medicine at the

University of Washington School of Medicine and nationally

recognized expert on lesbian health, states: “About 90

only if accused has committed act by contrast with status); Pruitt v.

Cheney, 963 F.2d 1160, 1164 (9" Cir. 1991); Watkins v. U.S. Army, 875

F.2d 699, 725 (9" Cir. 1989).

'* Lawrence, 41 S.W.3d at 353.

'S A.C. Butler, Trends in Same-Gender Sexual Partnering, 1988-1998.

Journal of Sex Research 333-343 (visited Feb. 5, 2003):

<http://www.mygenes.co.nz/updates.html.

'© Andrew Rapp, “Try Coming Out as Bisexual” (visited Feb. 3, 2003):

<http://www.baywindows.com/main.cfm?include=detail&storyid=34 151

percent of women who have sex with women have been

sexually active with men at some point in their lives.”'’ Dr.

Katherine Fethers, who led an Australian study on bisexual

women, reported in Sexually Transmitted Infections, a

specialty journal published by the British Medical Journal:

Ninety-three percent of the women who reported

having sex with another woman also reporting having

sex with men within the past year. These bisexual

women were found to be more likely than strictly

heterosexual women to have injected drugs, had sex

with homosexual or bisexual men and had more than

50 male sexual partners in their lifetime.'*

“Deviate sexual intercourse” is a common occurrence

in prisons and is not exclusively homosexual. Prison rape

and consensual sex include sex between same-sex

heterosexuals, same-sex homosexuals and same-sex

bisexuals:

Because a prison population is highly controlled and

inmates no longer have the regular opportunity to

engage in consenting heterosexual sex, acting out

behaviors pose a grave danger to the safety of other

inmates and to staff. [Id., Exs. # 5; Ex. # 20].

Unfortunately, even today, inmates are victimized by

sexual assaults from other inmates. Inmates at WSR

have been caught engaging in consensual and non-

consensual homosexual sex. [Id., Ex. # 5]. Inmates

have also been forced into performing fellatio on

other inmates. ... The probability or possibility of

'” Walter Neary, All Women Should Be Getting Regular Pap Tests, Study

Shows, University Week July 19, 2001 available at:

<http://depts. washington.edu/~uweek/archives/200 1.07. JUL_19/_article9

-html.

'* Melissa Schorr, “Bisexual Women More at Risk: May Serve as

‘Bridge’ to Bring STDs to Their Female Partners,” (visited Feb. 7, 2003):

<http://abcnews.go.com/sections/living/DailyNews/lesbianstds00 1023.ht

ml.

inmates engaging in consensual and non-consensual

sex with other inmates increases exacerbating the

problems with HIV, hepatitis, herpes, and other

sexually transmitted diseases. ... Inmates, who are

not homosexual, may engage in homosexual acts in

order to satisfy their sexual appetite created by the

presence of sexually explicit materials."

“(Multiple unsolicited and unwanted requests for

homosexual sex” is a problem in prisons.” “Because of the

lack of physical relationships of choice in prison, there is an

increased possibility that inmates who view sexually explicit

materia] will engage in consensual and non-consensual

homosexual sex, thereby increasing the spread of HIV,

hepatitis and other sexually transmitted diseases.”” ' “Some

complaints were voiced by the inmates at the failure to

segregate inmates who are homosexuals or sex deviates from

the rest of the population.”

Petitioners were prosecuted for engaging in “deviate

sexual intercourse.” “Deviate sexual intercourse” is conduct

pure and simple. It is conduct commonly engaged in by

bisexuals and heterosexuals (engaging in homosexual

experimentation) who would be subject to the same criminal

liability under the Texas statutes as are Petitioners.

According to the American Psychiatric Association,

sexual orientation “refers to erotic attraction to males,

females, or both.””’ A person’s “erotic attraction” is not an

'9 See Ford Powell v. Chase Riveland, 991 F. Supp. 1249, 1251-1253

(W.D. Wash. 1997).

2° Brewer v. Hillard, 15 $.W.3d 1, 7 (Ky. App. 1999).

2! Allen v. Wood, 970 F. Supp. 824, 830 (E.D. Wash. 1997).

22 Sas v. Maryland, 295 F. Supp. 389, 418 (D. Md. 1969).

» American Psychiatric Association: Diagnostic and Statistical Manual

of Mental Disorders, Fourth Edition, Text Revision 535 (Washington,

DC, American Psychiatric Association, 2000).

element of the offense proscribed and is, therefore,

irrelevant.

There is no basis on which the Court should conclude

that the statutes discriminate on their face or as applied to

Petitioners.

2. Sex (Gender)

The statutes do not discriminate based on sex

(gender). They are enforceable against a woman engaging in

“deviate sexual intercourse” with another woman and a man

with another man. Men and women are treated with absolute

equality as persons. The statutes neither advantage nor

disadvantage one sex but not the other.

Petitioners and their amici construe the statutes as if

they permit men to engage in sexual conduct with other men

but not women with women. The statutes do not in any way

require adherence to or reinforce any such gender

stereotypes. The language could not be clearer: “A person

commits an offense if he engages in deviate sexual

intercourse with another individual of the same sex.” Women

and men are treated exactly the same. The statutes are neutral

to both sexual orientation and sex (gender).

Even if the word “sex” in the statutes were expanded

beyond the dictionary and traditional definition as a

biological distinction between male and female, to mean

“gender,” defined as “personality features and socio-sexual

roles typically associated with ‘masculinity’ or

‘femininity,””** there would still be no discriminatory effect.

** Bibby v. The Philadelphia Coca Cola Bottling Co., 85 F. Supp. 2d 515,

517 (E.D. Pa. 2000) (citing Higgins v. New Balance Athletic Shoe, 21 F.

Supp. 2d 66, 73, 75 (D. Me. 1998)); Goins v. West Group, Inc., 635

N.W.2d 717, 723 (Minn. 2001) (holding that under state’s Human Rights

Act, an employer's designation of employee restroom use based on

biological gender is not sexual orientation discrimination, defined as

“self-image of gender”).

“Gender,” in that sense, would apply to both men and

women, regardless of their biological distinctions or

“orientation.”

It is instructive that Congress did not include gender

or sexual orientation in Title VII of the Civil Rights Act and

the courts have refused to define “sex” beyond its traditional

meaning, even after the Court’s ruling in Oncale v.

Sundowner Offshore Services, Inc.”°

Although the Court used both and sex in its

opinion in United States v. Virginia,” (“VMI’) gender is

used only as the biological distinction between men and

women, male and female. The Texas statutes are completely

consistent with the Court’s ruling in VMI. Justice Stevens

emphasized in Bray v. Alexandria Women's Health Clinic,”’

“the capacity to become pregnant is the inherited and

immutable characteristic that ‘primarily differentiates the

female from the male.”””*

Even if a facially neutral statute operates to the

advantage of one sex over the other, that factor alone is not

dispositive of whether the legislature had a discriminatory

intent. in Personnel Administrator of Massachusetts v.

Feeny,” an equal protection challenge was made to a

Massachusetts statute that created a lifetime preference for

veterans who qualified for state civil service positions ahead

of any qualifying nonveterans. The preference operated

overwhelmingly to the advantage of males. A district court

held that the statute violated the Equal Protection Clause of

the Fourteenth Amendment and this Court reversed. Because

25 §23 U.S. 75 (1998).

2? $06 U.S. 263 (1993).

78 Id. at 330. (Stevens, J. dissenting.)

?° 442 U.S. 256 (1979).

the statute was gender-neutral on its face, the Court

considered first whether the statutory classification was

neutral and then whether the adverse effect reflected

invidious gender-based discrimination. The Court held that

“the law remains what it purports to be: a preference for

veterans of either sex over nonveterans of either sex, not for

men over women.”””

The Texas statutes do not prefer one sex over the

other nor do they prefer heterosexuals over homosexuals.

The statutes are intended to restrain “deviate sexual

intercourse.” The Legislature may have concluded that only

same-sex “deviate sexual intercourse” could be prohibited in

light of the Court’s rulings in Griswold v. Connecticut, 381

U.S. 479 (1965) and Eisenstadt v. Baird. See infra, section

III. E.

B. For Equal F.otection Purposes, “Deviate

Sexual Intercourse” Is Not A Fundamental

Right

Because of “the practical necessity | that most

legislation classifies for one purpose or another,””' this Court

gives states “wide latitude” in enacting social legislation.*”

To satisfy the Fourteenth Amendment’s equal protection

guarantee, such legislation need only have “a rational

relationship to some legitimate end” as long as it “neither

burdens a fundamental right nor targets a suspect class.””

° Td. at 280.

3 Romer, 517 U.S. at 631.

* City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440

(1985).

> Romer, 517 U.S. at 631.

This Court has held that to be “fundamental,” a right

must be either “implicit i in the concept of ordered liberty”

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

This Court has already held that “neither of these

formulations would extend a fundamental right ... to engage

in acts of consensual sodomy.”® Such a proposition, this

Court said, “is, at best, facetious.”’ Thus the lower court in

the present case correctly held that “there is no fundamental

right to engage in sodomy” or, in the exact terms of the

Texas statute, same-sex “deviate sexual intercourse.”

In Bowers, this Court held that such an asserted right

bears no resemblance to its previously recognized

substantive personal rights’® such as privacy.”” As defined in

the Texas statute, “deviate sexual intercourse” has nothing to

do with the privacy of “the home, the family, marriage,

motherhood, procreation, and child rearing’ that this Court

has said the Fourteenth Amendment protects. As the

incidents of same-sex sodomy in prisons, see supra, and

other examples illustrate, many who engage in same-sex

sodomy are not involved in or pursing any kind of

relationships at all, but merely personal sexual gratification.

Even where a right deemed by this Court to be

fundamental is generally involved, legislatures retain

* Palko v. Connecticut, 302 U.S. 319, 325 (1937).

> Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977).

*” Id. at 193.

** Lawrence, 41 S.W.3d at 357.

*® Bowers, 478 U.S. at 190-91.

” See, ¢.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

*' Paris Adult Theater I v. Slaton, 413 U.S. 49, 65 (1973).

authority to make policy choices. In Harris v. McRae,” for

example, this Court upheld a prohibition on public funding

for medically necessary abortions:

Where, as here, Congress has neither invaded a

Substantive constitutional right or freedom, nor

enacted legislation that purposefully operates to the

detriment of a susvect class, the only requirement of

equal protection is that congressional action be

rationally related to a legitimate governmental

interest. The Hyde Amendment satisfies that

standard, since, by encouraging childbirth except in

the most urgent circumstances, it is rationally related

to the legitimate governmental objective of protecting

potential life.*°

Neither does this asserted sexual right find any

protection in the privacy of the home recognized i in Stanley

v. Georgia.” As this Court explained in Bowers, that right

was “firmly grounded in the First Amendment.””’ In stark

contrast, the asserted right to “deviate sexual intercourse” in

the present case, like the asserted right to sodomy in Bowers,

“has no similar support in the text of the Constitution, and it

does not qualify for recognition under the prevailing

principles for construing the Fourteenth Amendment.’

The present claim would begin an ever-widening

series of claims for constitutional protection of various forms

of sexual conduct. “Its limits are ... difficult to discern. ...

And ... it would be difficult, except by fiat, to limit the

claimed right to homosexual conduct while leaving exposed

“ 498 U.S. 297 (1982).

* Id. at 299.

“ 393 U.S. 557 (1969).

* Bowers, 478 U.S. at 195.

Id.

to prosecution adultery, incest, and other sexual crimes even

though they are committed in the home.” As in Bowers,

this Court should be “unwilling to start down that road.

Cc. For Equal Protection Purposes, Sexual

Orientation Is Not A Suspect Class

Even if a legislative classification does not implicate

a fundamental right, it may still require more than a “rational

basis” justification if it targets a “‘suspect’ or ‘quasi-suspect’

class.” The Texas statutes at issue here do not discriminate

on the basis of sexual orientation, and the record contains no

evidence of Petitioners’ sexual orientation. Indeed, this Court

in Romer did not identify homosexuals as a suspect class but

applied the rational basis standard.’ It should do the same in

the present case.

This Court has held that classifications targeting a

“suspect class” must be “suitably tailored to serve a

compelling state interest.”*' To be a suspect class, a group

must meet the “traditional indicia of suspectness.””” It must

“have been subjected to discrimination,” must “exhibit

obvious, immutable, or distinguishing characteristics that

#7 Id.

8 Id. at 196.

” Bowen v. Gilliard, 483 U.S. 587,.602 (1987).

*® Romer, 517 U.S. at 632.

5! Cleburne, 473 U.S. at 40.

*2 San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28

(1973).

TN ee = a

define them as a discrete group” and be “politically

powerless.”**

This Court has consistently identified as immutable

characteristics such things as “race, gender, or ethnic

background“ and “height or blindness.”*> As such, the only

classes recognized by this Court as “suspect” are race,

alienage,”’ and ancestry.** Central to each are the “obvious,

immutable, or distinguishing characteristics that define them

as a discrete group.” Indeed, this Court has held that a

“status” defined not by “an absolutely immutable

characteristic” but “conscious, indeed unlawful, action” does

not qualify as a suspect class.*®

Lower courts have held, as this Court implied in

Romer, that homosexuals are not a suspect class for equal

protection purposes. The Ninth Circuit, for example,

concluded that “[hjomosexuality is not an immutable

characteristic; it is behavioral and hence is fundamentally

different from such traits as race, gender, or alienage.”™

* Bowen, 483 U.S. at 602. See also Massachusetts Board of Retirement

v. Murgia, 427 U.S. 307, 313 (1976); San Antonio Independent School

District, 411 U.S. at 28.

* See, e.g., Holland v. Illinois, 493 U.S. 474,496 (1990); Lockhart v.

McCree, 476 U.S. 162, 175 (1986).

*§ Cleburne, 473 U.S. at 472.

” See Graham v. Richardson, 403 U.S. 365 (1971).

** See Korematsu v. United States, 323 U.S. 214 (1944).

® Plyler v. Doe, 457 U.S. 202, 220 (1981). ;

F.2d 563,573 (9" Cir. 1990). See Ben-Shalom v. Marsh, 881 F.2d 454,

464 (7" Cir. 1989); Woodward v. United States, 871 F.2d 1068, 1076

(Fe . Cir. 1989); Padula v. Webster, 822 F.2d 97,102 (D.C. Cir. 1987).

An extensive National Journal analysis concluded,

“(gjays and lesbians have achieved unprecedented

acceptance in America.”

The proliferation of anti-discrimination laws covering

sexual orientation demonstrate that “homosexuals are not

without political power.” Homosexual political action

committees raise millions for political candidates.” A

spokesman for the National Gay & Lesbian Task Force

stated: “The Gay vote is large, powerful, and able to swing a

closely contested election.” The National Journal found

that homosexuals “use their clout and their dollars to shape

laws and social policy.”

Open homosexuals are being elected to legislatures

and courts” and appointed as U.S. ambassadors. According

6! Zeller, Marching On, but Apart, The National Journal, Jan. 12, 2002.

® High Tech Gays, 895 F.2d at 574. Last year, according to a leading

homosexual publication, Connecticut extended legal rights to same-sex

ot hibiting discriminati a '

included New York City; Takoma, Washington; Dallas, Texas;

Westbrook, Maine; Chicago, Illinois; Baltimore, Maryland and Orlando,

Florida. News of the Year, 2002 Time Line, The Advocate, Jan. 21, 2003.

See Lou Chibarro, A Hard Line On ‘Soft Money’ Washington Blade,

August 3, 2001.

* | isa Keen, Groups Tout Clout, The Washington Blade, Sept. 22, 2000.

®5 See, supra, note 61.

® The U.S. House of Representatives now has three openly homosexual

members.

®” See Lisa Krieger, Judicial Election Shatters Barrier; First Gay Elected

to Superior Court, San Francisco Examiner, March 28, 1996, at A-9.

6 President Clinton appointed James Hormel to be Ambassador to

Luxembourg and President Bush has appointed Michael Guest to be

Ambassador to Romania. ;

to a leading homosexual publication,” significant events

during 2002 alone include:

e “The first openly gay candidate to be selected to run

with a sitting U.S. governor.”

e The majority leader of the Maryland House of

Delegates became “the state’s first legislator to come

out of the closet.” “The American Academy of

Pediatrics officially endorses adoption by gay

people.”

e “The ... National Education Association adopts a

policy asking school districts to protect gay and

lesbian students and staff members.”

e “(njewspapers nationwide, including, most

significantly, the New York Times” began running

same-sex union announcements.

e Homosexual activists saw only one “Election Day

ballot measure defeat” last year.

e “the first openly gay mayor of a U.S. state capital.”

Homosexual activist groups themselves claim

increasing influence over many aspects of American culture

and politics. The Gay & Lesbian Alliance Against

Defamation (GLAAD) claims to have “changed the way

lesbians and gay men are portrayed on the screen and in the

news” and to be “a major source of resources and

information for entertainment and news media decision

makers. Entertainment Weekly has named GLAAD as one

of Hollywood’s most powerful entities.”””

Groups such as the National Lesbian and Gay

Journalists Association,’' Gay and Lesbian Medical

® News of the Year, supra note 62.

” GLAAD, “Our History,” available at

"| At an NLGJA event on April 12, 2000, longtime member

Richard

Berke, national correspondent for the New York Times, said, “literally

three-quarters of the people deciding what’s on the [New York Times’)

Association, National Gay and Lesbian Chamber of

Commerce, National Organization of Gay and Lesbian

Scientists and Technical Professionals, Servicemembers

Legal Defense Network, and the Gay, Lesbian & Straight

Education Network are a few of the homosexual

organizations targeting specific sectors of society.

A recent GLAAD report claimed, “[i}n mainstream

and gay media gay consumers are becoming big business.”””

According to Online Partners, owners of the Web portal

gay.com,” homosexuals represent a $450 billion market.”

The Miami Daily Business Review reports that homosexuals

have “extraordinarily high disposable income, and are very

attractive target for advertisers.”

Clearly, Petitioners are not part of a suspect class.

Neither do Petitioners constitute a quasi-suspect class. This

Court has held that classifications based on sex (gender)

must meet a “heightened standard,” that is, be

“substantially related to a sufficiently important government

front page are not-so-closeted homosexuals.” See Peter LaBarbera, Just

— — Is The New York Times, available at

org icledispl: sp id 7& Gepartmer

” Katherine Sender, “Business, not Politics”: Gays, Lesbians, Bisexuals,

Transgender People and the Consumer Sphere (GLAAD Center for the

Study of Media and Society, 2002), at 4.

™ Online Partners boasts that “According to DoubleClick’s @plan

research, Gay.com is the #1 site on the Internet in reaching single men

with wv mnseene incomes over $100,000.”

™ Selig Center for Growth, University of Georgia, available at

http://www.onlinepartners.com/pages/market.html.

” Marcia Philbin, Branching Out, Miami Daily Business Review, Oct. 6,

2000, p. Al3.

PO me en

interest.””’ The Texas statute at issue here, of course, is

entirely gender-neutral, applying equally to same-sex

“deviate sexual intercourse” by men and by women and

without regard to sexual orientation.

The court below also rejected Petitioners’

disproportionate impact argument: “Where, as here, a statute

is gender-neutral on its face, appellants bear the burden of

showing the statute has had an adverse effect upon one

gender and that such disproportionate impact can be traced to

a discriminatory purpose.

The court went on to cite this Court’s decision in

Washington v. Davis” with respect to disproportionate

impact. That decision, however, addressed disproportionate

impact in the context of racial discrimination. “But our cases

have not embraced the proposition that a law or other official

act, without regard to whether it reflects a racially

discriminatory purpose, is unconstitutional solely because it

has a racially disproportionate impact.”®

The court below rightly recognized the weakness of

Petitioners’ argument:

A fallacy of “amphiboly”: sex in the sense of gender

is \not the same as sex act as distinguishing

heterosexual conduct from homosexual conduct. ...

Appellants complain only that the statute has had a

disparate impact between homosexuals and

heterosexuals; this simply does not raise the specter

of gender-based discrimination.*!

” Id. |

"8 Id. at 359.

” 426 U.S. 229 (1976).

® Id. at 239. |

"' Lawrence, 41 S.W.3d at 358."

In Baker v. Nelson,® petitioners, both adult males,

sought a license to marry, which was denied because

petitioners were of the same sex. On appeal to the Minnesota

Supreme Court, they argued, “restricting marriage to only

couples of the opposite sex is irrational and invidiously

discriminatory.” The Minnesota Supreme Court stated that

it did “not find support for them in any decisions of the

United States Supreme Court.” Citing Skinner v.

Oklahoma,™ the court reasoned, “the Constitution does not

require things which are different in fact or opinion to be

treated in law as though they were the same.” The court

distinguished racial discrimination from sexual

discrimination: “But in commonsense and in a constitutional

sense, there is a clear distinction between a marital

restriction based merely upon race and one based upon the

fundamental difference in sex."

As Justice White cautioned, the Court should remain

unwilling to go down a road that would inevitably lead the

Court to face equal protection claims raised by individuals

who engage in other types of sexual conduct (paraphilias),

such as pedophilia or zoophilia,*’ which some characterize as

a “sexual orientation.”

* 191 N.W.2d 185 (Minn. 1971).

® Id. at 186.

™ 316 U.S. 535 (1942).

*° Id. at 540.

% Baker, 191 N.W.2d at 187. See also McLaughlin v. Florida, 379 U.S.

184 (1964) (striking down a Florida criminal statute, which proscribed

and punished habitual cohabitation only if one of an unmarried couple

was white and the other black.)

Appendix.

It is conceivable that the paraphilias defined in note

87, which are presently classified as “mental disorders” will

be declassified just as the American Psychiatric Association

declassified homosexuality as a “mental disorder” in 1973."

In the Foreword to “Male Intergenerational

Intimacy,” published in The Journal of Homosexuality, Dr.

Gunter Schmidt writes: “Each individual case must be

looked upon on its own merits...the threat to make all

pedophile acts punishable by law can barely be labeled

civilized...it implies discrimination and persecution of a

minority and should be abolished.”®’ Pedophile activists

describe their “paraphilia” as a sexual orientation:

“Pedophilia is a sexual-orientation, like heterosexuality,

homosexuality, bisexuality, etc.”°? The Washington Times

reported that the University of Massachusetts at Amherst had

revised its nondiscrimination policy to protect “persons

whose sexual orientation includes minor children as the sex

object.”*!

In 1997, The New York Times reported on a growing

phenomenon called “polyluv,” in which three or more people

form “sexual relationships” Because jealousy is still a

problem, organizations devoted to group sex such as Loving

More use exercises “in which you practice feeling glad that

your mate is with another.... Some have even ‘married,’ with

as many as six figures on the weading cake.”** Individuals

8 Ronald Bayer, PhD, Homosexuality and American Psychiatry: The

Politics of Diagnosis 3-4 (New York: Basic Books 1981).

* Gunter Schmidt, D.Phil, Male Intergenerational Intimacy, J.

HOMOSEXUALITY, Vol. 20, nos. 1/2, 1990, at 4.

% “The Pedophilia/Pedophile Education Web Site Mirror” (visited Feb.

5, 2003:<http:/Nege.cz/win.en/archiv/pedo | .hum.

*' PC 101, Wash. Times, May 27, 1992, at Bi.

* They Call it Polyluv, N.Y. Times Magazine, Feb. 16, 1997, Section 6,

at 15.

engaging in “polyluv” “relationships” could make the same

claim that their “private consensual adult behavior” deserves

constitutional protection as Petitioners herein make.

D. Protecting Public Morals, Health and

Safety Is A Rational, If Not Compelling

Reason, To Prohibit “Deviate Sexual

Intercourse”

The Court’s decisions in Griswold establishing a

fundamental privacy ing marital intimacy and its

holding in Eisenstadt v. Baird,” that there was no rational

reason for the dissimilar treatment of married and unmarried

persons who were similarly situated, should not be extended

to same-sex sodomy.

The fact that Texas does not criminalize opposite sex

sodomy should not be construed as bias or animus toward

homosexuals. It is entirely rational to presume that the Texas

Legislature’s decision to decriminalize opposite sex sodomy

in 1973 was a response to this Court’s rulings in Griswold

and Eisenstadt, and to protect marital intimacy and opposite

sex relationships that are likely to result in marriage. The

Legislature’s decision is certainly rational in light of Justice

Stevens’ dissent in Bowers:

Paradoxical as it may seem, our prior cases thus

establish that a State may not prohibit sodomy within

‘the sacred precincts of marital bedrooms,’ Griswold,

381 _U.S., at 485, or, indeed, between unmarried

heterosexual adults. Eisenstadt, 405 U.S., at 453. In

all events, it is perfectly clear that the State of

Georgia may not totally prohibit the conduct

% 405 U.S. 438 (1972).

proscribed by § 16-6-2 of the Georgia Criminal

Code.™

The fact that the prohibited conduct is called

“deviate” should not be construed as evidence of legislative

animus or bias toward homosexuals. Historically and

currently, juries are instructed that in judging obscenity they

may find that the prurient appeal requirement is met if the

material is designed for and primarily disseminated to a

clearly defined deviant sexual group including homosexual

conduct. Justice Brennan writing for the Court in Mishkin v.

New York®> referred to material “depicting various deviant

sexual practices, such as flagellation, fetishism, and

lesbianism, ....”*°

Whenever the state regulates conduct for the sake of

public morality, it is a policy-based determination made by

the legislature that the conduct in question addresses, thereby

affecting the morality of the citizens of that state. It is

perfectly valid for the state to make a legislative decision

that reflects a deeper moral choice. Thus, the concern for the

public morality is not limited to nonconsensual conduct or

conduct that occurs in public. “Public morality” should be

construed to mean the morality of the public, not merely

morality in public. As noted above, unless the conduct is

protected by some constitutional right, it may be validly

proscribed by the state’s police power.

™ Bowers, 478 U.S. at 218 (Stevens, J. dissenting.).

% 383 U.S. 502 (1966).

% Id at 508. See Hamling v. United States, 418 U.S. 87 (1974)

(“consideration may be given to the prurient appeal of the material to

clearly defined deviant sexual groups.) Jd. at 128; Pinkus v. United

States, 436 U.S. 293 (1978); U.S. v. Thomas, 74 F.3d 701 (6" Cir. 1996),

cert. denied sub nom. Thomas v. United States, 519 U.S. 82 (1996); Am.

Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7 Cir. 2001).

The purpose of the “deviate sexual intercourse” law

is to encourage moral behavior,” i.e., that which is

productive, healthy, or otherwise beneficial for the individual

or society and to discourage immoral behavior.

This Court has also recognized that a state may

validly exercise its police power in the interest of public

health and safety.” This is especially important in the advent

of the HIV/AIDS epidemic and the explosion of other

sexually transmitted diseases.

States are struggling to find a way to reduce the rapid

spread of disease, and many experimental measures have

been tried.” It has been proposed that the HIV/AIDS crisis

has a much impact on homosexuals and intravenous

drug users.'” If the tide of this epidemic is to be turned, then

such “high risk” behavior must become the focal point of

concern.

The liberal magazine Rolling Stone published an

article in which the author describes a disturbing and deadly

trait—of—homesexual_men—known as “bug chasers” —

homosexual men who yearn to get infected with the HIV

virus. “The men who want the virus are called “bug chasers,’

”” See Bowers, 478 U.S. at 192.

% See Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (quoting

Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S.

707, 719 (1985) and Metropolitan Life Insurance Co. v. Massachusetts,

471 US. 724, 756 (1985)).

* See Comment, Survey on the Constitutional Right to Privacy in the

Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 631-34

(1986).

00 See UNITED STATES CONGRESS, OFFICE OF TECHNOLOGY

ASSESSMENT, REVIEW OF THE PUBLIC HEALTH SERVICES RESPONSE TO

A1ps 6 (WASH., D.C.) (pub. No. OTA- TM-H-24) (Feb. 1985).

and the men who freely give the virus to them are called ‘gift

givers.’ ... HIV-infected semen is treated like liquid gold.” ”

A closely related high-risk behavior by men who

have anal sex with other men is a further compelling reason

for Texas to criminalize same-sex sodomy. The prevalence

and popularity of “barebacking” (unprotected anal sex)

greatly increases the risk of HIV and sexually transmitted

disease infections.’

The fact that incidents of “bug chasing” and

“barebacking” are consensual and occur in a private

residence does nothing to mitigate the serious threat to both

the health and safety of the persons who engage in the

conduct and to the public generally. The Texas Legislature's

decision to prohibit “deviate sexual intercourse” serves a

substantial if not compelling state interest to protect public

morality, health and safety.

E. Absent An_ Express Constitutional

Violation, Courts Should Defer To State

Legislative Acts Such As §§ 21.06 and 21.01

The Texas Legislature acted within its police power

authority to criminalize conduct it considers to be “deviate

sexual intercourse.” Justice Holmes stated:

at 45; See Matthew Laza, Men Who Want Aids, The Spectator, Feb. 1,

ate a‘ Le

ry.html.

1 Terry Beswick, Bareback ‘Outings’ Spark Debate Over Well-Known

Secret, The Bay Area Reporter, July 27, 2000, available

at:<http://www.aegis.com/news/bar/2000/BR000705.html. A World

Wide Web search on Feb. 8, 2003, utilizing the “Google” search engine

and the term, “bareback sex,” produced links to 31,000 Web sites.

[T]he proper course is to recognize that a state

Legislature can do whatever it sees fit to do unless it

is restrained by some express prohi in the

Constitution of the United States or of , and

that Courts should be careful not to extend such

prohibitions beyond their obvious meaning by

reading into them conceptions of public policy that

the particular Court may happen to entertain. '®°

Justice Douglas writing for the Court in Griswold,

supra, stated, “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.”'™

“The traditional police power of the states is defined as the

authority to provide for the public health, safety, and morals.

A legislature car legitimately act on such a conclusion to

protect the social interest in order and morality.”'® “As Mr.

Chief Justice Warren stated, there is a ‘right of the Nation

and of the States to maintain a decent society”.'” “Above all

we must remember that this Court's power of judicial review

is not ‘an exercise of the powers of a super-legislature.’”'”’

Justice Brandeis wrote to emphasize the importance of

judicial restraint: “Judicial self-restraint is equally necessary

whenever an exercise of political or legislative power is

challenged.”'™

'® Tyson & Brother v. Banton, 273 U.S. 418, 446 (1927) (dissenting

opinion joined in by Brandeis, J.).

'* Griswold, 381 U.S. at 482.

'° Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

= Paris, 413 USS. at 59.

J. dissenting in Burns Baking Co. v. Bryan, 264 U.S. 504, 534 (1924)).

‘8 West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 648

(1943) (Frankfurter, J., dissenting. ).

This Court has affirmed the states’ rights to define

and protect morality:

‘In deciding Roth, this Court implicitly accepted that

a legislature could legitimately act on such a

conclusion to protect ‘the social interest in order and

morality.’ ... ‘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.”'”

The fact that the prohibited conduct occurs in private

by consenting adults is not a sufficient basis to grant it

constitutional protection. “Most exercises of individual free

choice--those in politics, religion, and expression of ideas--

are explicitly protected by the Constitution. Totally

unlimited play for free wili, however, is not allowed in our or

any other society.”''°

Our Constitution establishes a broad range of

conditions on the exercise of power by the States, 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. ... The 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.’ Statutes making bigamy

a crime surely cut into an individual's freedom to

associate, but few today seriously claim such statutes

violate the First Amendment or any other

constitutional provision.''! x

' Paris, 413 U.S. at 61, 64.

0 Td. at 63, 64.

'"! Id. at 68, 69.

Justice Black emphasized the importance of

restrained judicial review of legislative enactments:

My point is that there is no provision of the

Constitution which either expressly or impliedly

vests power in this Court to sit as a supervisory

agency over acts of duly constituted legislative

bodies and set aside their laws because of the Court's

belief that the legislative policies adopted are

unreasonable, unwise, arbitrary, capricious or

irrational.''?

To invalidate a law, not because it is unconstitutional,

but merely because it reflects a moral decision on the part of

the legislature, is to deprive the states of their constitutional

right to regulate the conduct of their citizens. To strip the

state of the moral dimension of its police power is to render

the state helpless in controlling and confronting conflicts for

which its citizens expect a remedy.

‘CONCLUSION

For all of the foregoing reasons, Amicus respectfully

requests this Honorable Court to dismiss the Petition for

Certiorari as improvidently granted, or in the alternative to

affirm the decision of the court below.

February 13,2003 Respectfully submitted,

Janet M. LaRue

Counsel of Record for

Amicus Curiae

Concerned Women for America

'? Griswold, 381 U.S. at 520, 521 (Black, J. dissenting. ).

APPENDIX

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; Gp eae sung pape egy ae Oe Cade ee l. Pedophilia: “sexual activity with a prepubescent child

fC Ms oo A ae I i ga ane alee ae nee Ly ge warmer ee et tat ty S.) _ (generally age 13 years or younger). The individual

ee nee ged rice he ere ye tee ae Se with Pedophilia must be age 16 years or older and at

z Rote ee ema Sie Sa ee ten | 4 i ; Ree ge Pa least 5 years older than the child. For individuals in

: Mi has Seige feet e's: Seer Bea ey Be Pg tray ot late adolescence with Pedophilia, no precise age

used; both the sexual maturity of the child and the

age difference must be taken into account.” (571)

. Bie ee ete : ¥ : | Transvestic fetishism: “cross-dressing by a male in

nen Me Cee nae, Rete? AR women’s attire.” (574)

sn eta Fay PATA accompanying thought or image of the person as a

Set has | ‘ge ' : | female”. (574)

2 a eas Sia eat, Siri oot Spey | of observing unsuspecting individuals, usually

Bee: | . strangers, who are naked, in the process of disrobing,

| eck . Ls _ Or engaging in sexual activity.” (575)

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exposure of one’s genitals to an unsuspecting

stranger.” (569) ‘

Fetishism or Sexual Fetishism: “intense sexually

arousing fantacies, sexual urges, or behaviors

involving the use of nonliving objects (e.g. female

undergarments).” (570)

Zoophilia: becoming excited by and/or engaging in

sexual activity with animals. (576)

Sexual sadism: “recurrent, intense, sexually arousing

fantasies, sexual urges, or behaviors involving acts

(real, not simulated) in which the psychological or

physical suffering {including humiliation) of the

victim is sexually exciting to the person.” (574)

17.

Sexual Masochism: “recurrent, intense sexually

arousing fantasies, sexual urges, or behaviors

involving the act (real, not simulated) of being

humiliated, beaten, bound, or otherwise made to

suffer.” (573)

Necrophilia: sexual arousal and/or activity with a

corpse. (576)

Klismaphilia: erotic pleasure derived from enemas.

(576)

Telephone Scatalogia: the compulsion to utter

obscene topics over the phone. (576)

Urophilia: sexual arousal associated with urine. (576)

Coprophilia: sexual arousal associated with feces.

(576)

Partialism: “sexual arousal obtained through

exclusive focus on part of the body.” (576)

Gender Identity Disorder: “a strong and persistent

cross-gender identification, which is the desire to be,

or the insistence that one is, of the other sex,” along

with “persistent discomfort about one’s assigned sex

or a sense of the inappropriateness in the gender role

of the sex.” (576)

Frotteurism: “touching and rubbing against a

nonconsenting person.” (570)

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