# Amicus Curiae Brief — Lawrence v. Texas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A34

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 558

## Text

Supreme Comt. 1S |
FIL DG
FEB 18 2003
No. 02-102
Ci
IN THE

Supreme Court of the Gnited States

JOHN GEDDES LAWRENCE AND TYRON GARNER,
Petitioners,
V.
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
): FRI MED ETON MAr Tn EES Ai ili
CRIT GP BAC CIB a occ ccccccccccccccccccchescceccecoctes l
CIT TEP Ee Be occ ccccccccccccccccccccccsedesecccosccsces l
SRIGATEY GP RAITT oo. ccccccccccccccceccscccsckeccsescccccsees l
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

ii
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

iV

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

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

3

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).

4

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.”

6

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.

7

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

8

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):

Romer, 517 U.S. at 631.

14

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).
© Bowers v. Hardwick, 478 U.S. 186, 192 (1986).

*” 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).

15

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.

16

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

17

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

” 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). ;
© High Tech v. Defense Industrial Security Clearance Office, 895
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).

18

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

66

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. ;

19

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’)

20

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.

© Cleburne, 473 U.S. at 440.

PO me en

a

21

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."

22

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.)

©” American Psychiatric Association, supra note 23 at 566-582. See
Appendix.

23

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: 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).

26

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).

27

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:

©! Gregory A. Freeman, Jn Search of Death, Rolling Stone, Feb. 6, 2003,
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: + a +S oy hee Y ee ee , : a, Se a £4 ne tee ee j
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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.

32

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0585%3A34. Public record. Not legal advice.