Amicus Curiae Brief — Lawrence v. Texas

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FOR ARGUMENT”

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pea 2S 7S NO. 02-102

IN THE

Court of the United States

JOHN GEDDES LAWRENCE AND TYRON GARNER,

Petitioners,

VS.

STATE OF TEXAS,

Respondent.

MOTION FOR LEAVE TO FILE AMICUS BRIEF AND

AMICUS BRIEF OF THE CENTER FOR

MARRIAGE LAW IN SUPPORT OF

RESPONDENT

Vincent P. McCarthy Joshua K. Baker

Counsel of Record Marriage Law Project

Center for Marriage Law Columbus School of Law

P.O. Box 1839 The Catholic University of America

New Milford, CT 06776 3600 John McCormack Rd.

(860) 355-1902 Washington, DC 20064

(202) 319-6755

Lynn D. Wardle

William C. Duncan

Brigham Young University

518 J. Reuben Clark Law School

Provo, UT 84602

(801) 422-2617 ,

Attorneys for Amicus Curiae

IBEST AVAILABLE COPY

NO. 02-102

IN THE

SUPREME COURT OF THE UNITED STATES

JOHN GEDDES LAWRENCE AND TYRON GARNER,

Petitioners,

vs.

STATE OF TEXAS,

Respondent.

MOTION OF THE CENTER FOR MARRIAGE

LAW FOR LEAVE TO FILE BRIEF AMICI CURIAE

IN SUPPORT OF RESPONDENT

The Center for Marriage Law would like permission from the

Court to file the attached amicus brief in the above matter. The

Center for Marriage Law is a non-profit 501(c)3 corporation

specializing in issues related to one man/one woman marriage

seeking to uphold one man/one woman marriage. Counsel for the

Center for Marriage Law, Vincent P. McCarthy, sought permission

from LAMBDA to file this brief but was denied because said request

was made on stationery for the American Center for Law and Justice.

The Center for Marriage Law has no relationship to the American

Center for Law and Justice and new stationery for the Center for

Marriage Law had not yet arrived. Despite counsel for LAMBDA’S

belief that this brief is duplicative of another brief filed by the

American Center for Law and Justice in this matter the Center for

Marriage Law assures this court that no part of the brief was written

by anyone employed by the American Center for Law and Justice.

Respectfully submitted,

Lynn D. Wardle VINCENT P. McCARTHY

William C. Duncan Counsel of Record

Brigham Young University CENTER FOR MARRIAGE

518 J. Reuben Clark Law School LAW, INC.

Provo, UT 84602 8 South Main Street

(801) 422-2617 P. O. Box 1839

New Milford, CT 06776

(860) 210-1182

Joshua K. Baker

Marriage Law Project

Columbus School of Law

The Catholic University of America

3600 John McCormack Rd.

Washington, DC 20064

(202) 319-6755

Attorneys for Amici Curiae

February 14, 2003

QUESTIONS PRESENTED

Whether this Court should dismiss the writ of certiorari

as improvidently granted in light of the extreme paucity

of the record?

Whether the Due Process Clause of the Fourteenth

Amendment renders facially unconstitutional a state law

prohibiting extramarital sexual activity, specifically

same-sex sodomy?

Whether the Equal Protection Clause of the Fourteenth

Amendment renders facially unconstitutional a state

statute prohibiting same-sex sodomy?

TABLE OF CONTENTS

ne er Ge ccrcetnsremenseecennnmnemennmneie ii

NE iv

gD. l

GETS ccarsessccnemunpimnnnmeeaneimenmentaenie l

I. THE RECORD IN THIS CASE IS

INSUFFICIENT TO SUPPORT A DECISION

ON THE MERITS. 2

Il. THE COURT SHOULD AVOID ANY HOLDING

WHICH WOULD UNDERMINE MANY STATE

LAWS PROTECTING MARRIAGE AND THE

TRADITIONAL FAMILY STRUCTURE. .......... 3

A. ee eee ene,

sexual behavior.

B. This Court has extended constitutional

significance to che institution of marriage as the

prumary institution to foster responsible sexual

behavior. 7

i. Marriage is the fundamental element of

American democratic SOCICLY. .............cccccceceeeeeeeeeeeeee 9

ii. Marriage is the optimal setting for procreation

Ge Ga censrtsesseremeessseemmmeenenee 10

C. Texas law endorses and affirmatively prefers

sexual relations within marriage Il

D. Section 21.06 is part of an incremental system

channeling sexual activity into marriage and

minimizing sexual activity outside of marriage.. 14

E. In failing to distinguish between married and

unmarried couples, Petitioners would have this

court require equal legal recognition of same-sex

couples and married couples. 18

F. Numerous state and federal laws could be

impacted by the Court’s decision in this case,

the political process 19

G. Deference to the Texas Legislature would preserve

the important principle of federalism in family

laws. 21

Ill. THE APPROPRIATE CONSTITUTIONAL

RESPONSE TO THIS CASE IS FOR THIS

COURT TO DEFER TO THE TEXAS

LEGISLATURE. 25

A. Deferring to the Texas Legislature would not

conflict with this Court’s holding in Romer v.

Evans 25

B. Deference to the Texas Legislature Recognizes the

Importance of Open Public Debate in Democratic

Society 28

Ce ccensenscncssesecsnzesessescesrsmsenecmnnanssmanesesnnsensstenss 30

TABLE OF AUTHORITIES

Cases

Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752

ETE UIUE cicnsntnnsenenncantdasummesmenmmamaiatpinipenesiapianeetimmmaattn |

Alabama State Federation of Labor v. McAdory, 325 U.S.

ET aa sccniecntavenenntanicninpeineemnnsibinnininiieninainenne l

Atkins v. Virginia, 536 U.S. 304 (2002) ...........cccceeceeeeeeeeees 29

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)................. 19

Baker v. State, 744 A.2d 864 (Vt. 1999) 00... ccccceeeeeeeeees 19

Baker v. Wade, 553 F. Supp. 1121, 1N.D. Tex. 1982)........ 27

Ballard v. United States, 329 U.S. 187 (1946)...........ccccc00000+ 9

Barber .. Barber, 62 U.S. (21 How.) 582 (1859) ............... 21

Ellis v. Dixon, 349 U.S. 458 (1955) ..........ccccccceeeeeeeeesseeeeenees l

Griswold v. Connecticut, 381 U.S. 479 (1965). ............c0000+ 8

International Brotherhood of Teamsters v. Denver Milk

Producers, Inc., 334 U.S. 809 (1948) ...........ccccccccceeeeeeeeees l

Jackman v. Rosenbaum Co., 260 U.S. 22 (1922) ........c..000++ 28

Lawrence v. Texas, 41 S.W.2d 349 (Tex. Ct. App. 2001)..... 2

Lehman v. Lycoming County Children's Services Agency,

458 U.S. 502 (1982) .............00000 eaneennneimenn 21

Loving v. Virginia, 388 U.S. 1 (1967) ..........ccccceceeeeeseeeeeees 7

Maynard v. Hill, 125 U.S. 190 (1888), ...........ccccccceceeeeeeeeees 27

Meister v. Moore, 96 U.S. 76, 81 (1877)..............ceceeeeeeseeeeeee 7

Meyer v. Nebraska, 262 U.S. 390 (1923) ........ccccccceeseceeeneeees 7

Moore v. Simms, 442 U.S. 415 (1979) .......cccccccccceeeeesereeeenees 21

Murphy v. Ramsey, 114 U.S. 15, 45 (1885) ............cccccccesceeee 8

New State Ice v. Liebmann, 285 U.S. 262 (1932) .............. 24

Nguyen v. I.N.S., 533 U.S. 53 (2001) ........cccccceeeeeeeees 9, 11, 28

Pennoyer v. Neff, 95 U.S. 714 (1878) ..........ccccccecsceeeeeeeeeees 23

Poe v. Ullman, 367 U.S. 497 (1961) ........c.cccccceeseeeeeeees 16, 17

Prince v. Commonwealth of Massachusetts, 321 U.S. 158

Ea Ta einnssenatnenionisnesntntsemmmennasedeantemenneentnnennntinen 16

Rescue Army v. Municipal Court, 331 U.S. 549 (1947)........ l

Reynolds v. United States, 98 U.S. 145 (1878) ............... 7,11

Romer v. Evans, 517 U.S. 620 (1996)...............-.++ 25, 26, 28

Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)....... 19

Sosna v. Iowa, 419 U.S. 393 (1975) .......ccccccceeceeeeeeeeeeees 21,23

State v. Perez, 948 S.W.2d 362 (Tex. Crim. App. 1997)......2

Troxel v. Granville, 530 U.S. 57 (1996)............cc.cceeeeeeeeeeees 3

Turner v. Safley, 482 U.S. 78 (1987).......cc.ccccscecsesseeeeneeeeenenes 7

U.S. v. Salerno, 481 U.S. 739 (1987) ........cccccccceeeeereeseeeeneees 2

United States v. Morrison, 529 U.S. 598 (2000).............0... 23

United States v. Virginia, 518 U.S. 515 (1996).............0000+0 Y

Washington v. Glucksberg 521 U.S. 702 (1997) ...........0000+ 29

Zablocki v. Redhail, 434 U.S. 374 (1978) .......c.ccccccceeeeeeeee 7,9

Statutes

10 Ok. Stat. §7503-1.1; Wis. Stat. § 48.82 (2002).............. 20

Re 20

18-A Maine Rev. Stat. § 9-301 (2002) .............ccccecceeeeeeenens 20

ee 20

Oe) 20

750 Dl. Comp. Stat. § 50/2 (2002)...........cccccccesereerseneeenenees 20

A Bill for Proportioning Crimes and Punishments in Cases

Heretofore Capital in The Papers of Thomas Jefferson,

Vol. 2, 1777 to 18 June 1779, at 492, 493, 497 note ¢

(Julian P. Boyd ed., Princeton Univ. Press 1950)........... 17

Acts 1973, 63rd Leg., p. 1596, ch. 577, § 1 cccccccssssssssssssseees 11

Ala. Code § 30-1-19 (2002).......ccscccccssssssssssssssssssssssssseeeeeeen 19

Ala. Stat. § 26-10A-27 (2002) ......cccccvcssssssssvscsssssesessessssnssees 20

Ala. Stat. § 26-10A-5 (2002)........cccccvcssssssecessssssssssssssseeeeee 20

Ariz. Rev. Stat. § 8-103 (2002); .....ccccccsssssssvsvsssssesssseeesssssess 20

Ark. Code Ann. § 9-11-107 (2002) .oc.css.scssssssvsssssvssseseeeeee 19

Ark. Code Ann. § 9-11-208 (2002) .iscec.s..csccsvssssssssssvseeeeeeee 19

Cal. Fam. Code App. § 227.10 (2002) ........ccsssssssssssssssssveees 20

Colo. Rev. Stat. § 14-2-104 (2002) .......cccccsvscsssss-seseseseeeeeee 19

Del. Code Ann. tit. 13, § 101 (2001) .........cccsvsssssssesesssseeenen 19

Fl. Stat. § 63.042 (2002); .......ccccvcccssssssssssssssscesesesceneeeecensenen 20

Ga. Code 19-3-3.1 (2002)....ccccccvvcvcccesscccccccsvsccssssssssesceeeeeven 19

Ga. St. § 19-8-3(C) (2002) .....ccccvcccccessssssssssceeseresnesssssessueseees 20

Haw. Rev. Stat. § 572-3 (1999) ...cccccccssssssssssssssssssssssseseseeeees 19

NEA AS TT 19

Ia. Stat. § 600.4 (2002) ........... oR YOR meer wT 20

Towa. Code § 600.4 (2002) ........cscssscvsssssssssesssssssssssssseseeessee 20

Kan. Stat. § 59-2113 (2002) ........ccccccccssscsssvsssessssesessenesseneves 20

Kan. Stat. Ann. § 23-101 (1999) ...cccccccsccccssssssssssssssvsveeseee 19

Ky. Rev. Stat. Ann. § 402.045 (Michie 2002)......cccssssssssss 19

Ky. Rev. Stat. Ann. §§ 402.040 (I Michie 2002)................... 19

Minn. Stat. Ann. § 517.01 (2002)............cccccccccesseeeeseeeeeeenees 19

Miss. Code Ann. § 93-1-1 (2002)............ccccccceeseeeresneeeeeeeees 19

Mo. Rev. Stat. § 451.022 (West 2002) .........ccccccccceseneeeeeeeees 19

Ment. Code Ann. * 40-1-401 (2002 )........cccccccecceeeeceeeeeeeees 19

Mt. Code Ann. § 42-1-106 (2002)...........:ccccccccesseeeeeeeneeeeees 20

Mt. Code Ann. § 42-4-302 (2002)..........cccccssserseeerseeeeeeneees 20

N.C. Stat. § 48-4-101 (2002); ............scccssscsssessseresessseeseeeeees 20

N.D. Cent. Code § 14-03-01 (2000) ..0.......cccccccccseseeeeesenenenes 19

N.M. Stat. § 32A-5-32 (2002) .........ccccccsescsessceeeseeeeeeeeeeenees 20

Pa. Consol. Stat.Ann. § 1704 (West 2000)...................00008 19

Pub. L. 104-199 sec. 2, 100 Stat. 2419 (Sep. 21, 1996)

codified at 28 U.S.C. §1738C (1997) ........ccccceceeeeees 20, 21

S.D. Cod. Laws § 25-1-1 (2000) .........cccccccssceeseeseseeeeeenenes 19

Tenn. Code Ann. § 36-3-113 (2002) ...........cccccccccserseeeeeenees 19

Tex. Civ. Prac. & Rem. Code Ann. § 71.004 (West 2002). 13

Tex. Code Crim. P. Ann. art. 38.03 (West 2002).................. 2

Tex. Educ. Code Ann. § 28.004 (West 2002) ..........cceccseee 14

Tex. Educ. Code Ann. § 51.919 (West 2002) .............:00000 15

Tex. Fam. Code Ann. § 2.001(a) (West 2002).............. 11,27

Tex. Fam. Code Ann. § 2.501(b) (West 2002).............. 12, 13

Tex. Fam. Code Ann. § 3.003 (West 2002) ...........:0000 12, 13

Tex. Fam. Code Ann. § 3.401(5) (West 2002).................... 13

Tex. Fam. Code Ann. § 7.001 (West 2002) ...............0..:00008 12

Tex. Gov’t Code Ann. § 615.073 (West 2002) ..........:0000008 13

Tex. Gov't Code Ann. § 810.001(h) (West 2002).............. 14

vii

Tex. Health & Safety Code Ann. § 163.001 (West 2002)... 15

Tex. Health & Safety Code Ann. §85.007(b)(1) (West 2002)

pensacdbiieeieammnialnagaite 15

Tex. Health and Safety Code Ann. § 711.002 (West 2002) 12

Tex. Ins. Code Ann. § 1551.004 (West 2002)...........:::s000 13

Tex. Ins. Code Ann. § 1575.003 (West 2002)............:::00+ 13

Tex. Lab. Code Ann. §§ 408.182-.183 (West 2002)........... 13

Tex. Penal Code Ann. § 21.01(1) (West 2002). ...........::0+++ 15

Tex. Penal Code Ann. § 21.06 (West 2002)............000+ passim

Tex. Prob. Code Ann. § 45 (West 2002) ........ccccccsseeeeeeeenes 13

Tex. Rev. Civ. Stat. Ann. art. 6132a-1 (West 2002)........... 14

Tex. Rev. Civ. Stat. Ann. art. 6132b-9.02 (West 2002)...... 14

Tex. Rev. Civ. Stat. Ann. art. 6132b-9.03 (West 2002)...... 14

Tex. Rev. Civ. Stat. Ann. art. 6132b-9.05 (West 2002)...... 14

Tex. Rev. Civ. Stat. Ann. art. 6243a-1 (West 2002) ........... 13

Tex. Rev. Civ. Stat. Ann. art. 6243e (West 2002).............+. 13

Texas Fam. Code Ann. § 2.501(a) (West 2002)............:0+++ 12

Utah Code Ann. § 30-1-4 (2000)..........ccccccceseeeereseneeenenneens 19

Vt. Stat. Ann. tit. ISA, § 4-101 (2002).........cccccereeeeeeneenes 20

Vt. Stat. Ann., tit. 15, § 1201, et seq. (2002)..........cccccecceeeees 3

Vt. Stat. Ann., tit. 15, § 8 (2002) .........cccccecseeeeereeeeeereneeneees 3

W.Va. Code § 48-2-603 (2002)..........cccccccsceeeeeereeereeseeenanees 19

Other Authorities

Anne C. Dailey, Federalism and Families, 143 U. Pa. L.

ROV. 1787 (1995S) .ccccrccccscccsrserecccccsseccssccccccsssssssessseossssees 21

viii

Bert N. Adams, The Family: A Sociological Interpretation

188-89 (1986)

Brief of Plaintiffs-Appellants, Goodridge v. Dept. of Public

Health, at 61, No. SIC-O8860 (Mass.) ........cccccccescceseceees 18

Bruce C. Hafen, The Constitutional Status of Marriage,

Kinship and Sexual Privacy: Balancing the Individual and

Social Interests 81 Mich. L. Rev. 463 (1983) ............. 9,10

Charles Louis de Secondat (Baron de Montesquieu), The

Spirit of the Laws, Book XIX, ch. 14, and at Book XIX,

ee ee 24

Complaint, Lewis v. Harris at para. 66-67, No. 15-03,

Se as I ts 18

Deborah Ahrens, Note, Not in Front of the Children:

Prohibition on Child Custody as Civil Branding for

Criminal Activity, 75 N.Y.U. L. Rev. 737, 767 n. 142

EES EES SN Le Sea NC a 27

Defense of Marriage Act, Rep. 104-664, Comm. on

Judiciary, 104" Cong., 2d Sess., July 9, 1996, at 10

Defense of Marriage Act, Rep. 104-664, Comm. on

Judiciary, 104" Cong., 2d Sess., July 9, 1996, at 13-14. 10

Diana Hassel, The Use of Criminal Sodomy Laws in Civil

Litigation, 79 Tex. L. Rev. 813, 813 (2001) .o.....ccccccceee 27

Jill Elaine Hasday, Federalism and the Family

Reconstructed, 45 UCLA L. Rev. 1297 (1998)............... 23

John Locke, Two Treatises of Government 183 (Cambridge

| ___,__—_— TTC IE 6

Laurence Drew Borten, Note, Sex, Procreation, and the State

Interest in Marriage, 102 Colum. L. Rev. 1089 (2002).... 4

Lawrence Stone & Jeanne Stone, An Open Elite? England

REE ARNE LCR ET 6

Lynn D. Wardle, “Multiply and Replenish” : Considering

Same-Sex Marriage in Light of State Interests in Marital

Procreation, 24 Harv. J. L. & Pub. Pol’y 771 (2001)....... 5

Mary Ann Glendon, The Transformation of Family Law

II hai snisttinsinssoeiieniniiitetpetainienipinattibiiiaddinbibibeasmimaiaadidaniniiiiedes 6

Plaintiffs’ Memorandum in Opposition to Defendants’

Motion to Dismiss at 34, Morrison v. Sadler, Docket #

49D 13-021 1-PL-001946, Marion Super. Ct. (Ind.)......... 19

Plato, The Laws of Plato 108-109, 161 (Thomas L. Pangle

trans., University of Chicago Press 1980)..............:s0ses0e+ 5

Random House Webster's College Dictionary 370 (1991). 15

Richard A. Posner, Sex and Reason 4, 292 (1992) ............. 27

Richard D. Mohr, Gays/Justice: A Study of Ethics, Society,

CO ae GD cniccsicitanertentcttibitnbemmenteniabentetmnnsctniieale 27

Sex in the West, The New Republic, July 8, 1985, at 25, 32.6

Susan Price-Livingston, Connecticut Laws Involving Marital

Status, OLR Research Report #2001-R-0606 (Feb. 5,

ED cnininisisniembnesinntnnntaiviiveininnniabnigienedaunnn 20

Susan Treggiari, Roman Marriage: Justi Coniuges From the

Time of Cicero to the Time of Ulpian 5-11 (1991)............ 6

The Baptist Faith and Message (revised by the Southern

Baptist Convention, June 10, 1998)

<http://www.sbenet.org/bfm 1 8.Ntm>. ............cccceeceeeeeeeeees 7

The Federalist (James Madison) (Clinton Rossiter ed., 1961)

Se ESIR Ae Ce nO NCEE ONE! wT I NRT SOON a 22, 23

(REID <ccarcecsescessserescenevessneesensnvsecsnmmsmeusneenensssnstovenestsoanansces 5

Will Durant, The Reformation: A History of European

Civilization from Wyclif to Calvin: 1300-1564 at 303

(BBS F) ccccccsesescsessesnsrenesscsecsnssnsssesnqnenssessnsesosnsnanssnesseneseqsesen 6

ee eae ee ee ee oe

—

William C. Duncan, The Legacy of Romer v. Evans—So Far

10 WIDENER J. PUB. L. 161 (2001)...........ccccccccessesssseeeeeee 26

William J. Goode, World Revolution and Family Patterns 38

SeUTTI vecaibcesehasinleihieeiiaaidsieiiariiiilinacaicigettan caine anita 6

Constitutional Provisions

LE a ee oe ee 19

EE ae a ee 19

Ts EE IE CIN e ee a 19

Nev. Question 2 (approved Nov. 5, 2002) .........cccccccceeeeeees 19

INTEREST OF AMICUS CURIAE

The Center for Marriage Law is an organization

established to preserve and defend the male-female

institution of marriage through public policy research,

litigation, and educational efforts regarding the central role

of marriage in American society.’ The Center is deeply

anxious that nothing in this Court’s decision establish

precedent that would weaken the legal status of marriage and

the family.

SUMMARY OF ARGUMENT

What petitioners in this case seek is to establish a

precedent that would undermine laws that recognize and

protect the unique, exclusive social value and benefits of

marriage. Much more is at stake than a mere sodomy law.

The petitioners seek to establish a constitutional principle

that will profoundly influence public policies concerning a

host of family related issues.

Establishing a principle such as petitioners seek based on

the paucity of facts in this case is extremely unwise. Further,

this Court should be cautious about any decision that would

affect the unique constitutional status of marriage and the

laws and policies of many jurisdictions. A more appropriate

response to petitioners request is to defer to the democratic

process which would protect the crucial constitutional

interests at stake.

ARGUMENT

' No counsel for a party in this case authored this brief in whole or in

part, and no person or entity, other than amicus curiae or its counsel,

made a monetary contribution to the preparation or submission of this

brief. Written consent of Respondents to the filing of this brief has been

filed with the Clerk of this Court. Petitioners denied consent as indicated

in the attached motion.

I. THE RECORD IN THIS’ CASE IS

INSUFFICIENT TO SUPPORT A DECISION

ON THE MERITS.

This case presents an inapt vehicle for the Court’s

judgment on the controversial public policy questions raised

by Petitioners, providing the Court with virtually no factual

record upon which to rest a decision. As this Court has often

held, absent a sufficient record, the Court should dismiss the

writ of certiorari as improvidently granted. Ellis v. Dixon,

349 U.S. 458, 464 (1955) citing International Brotherhood

of Teamsters v. Denver Milk Producers, Inc., 334 U.S. 809

(1948); Rescue Army v. Municipal Court, 331 U.S. 549

(1947); Aircraft & Diesel Equipment Corp. v. Hirsch, 33}

U.S. 752 (1947); Alabama State Federation of Labor v.

McAdory, 325 U.S. 450 (1945). Such dismissal is

appropriate in this case.

Petitioners’ argument is premised heavily on the

proposition that the Petitioners were prosecuted for engaging

in “private, consensual sexual relations.” See, e.g., Pet. Brief

at 11-18. The evidentiary record, however, establishes only

that the Petitioners were adult males discovered engaging in

“deviate sexual conduct, namely, anal sex,” in violation of

Texas Penal Code § 21.06 (hereinafter “section 21.06”). Pet.

App. 129a. In seeking to bring an “as applied” challenge,

Petitioners presented no evidence (a) that the sexual acts

were consensual, (b) that either or both Petitioners had

capacity to consent (c) that the acts were private, or (d) that

they were noncommercial. The record is devoid of any

evidence which would give this Court a basis to decide the

substantive issues in this case.’

? Allegations contained in Petitioners’ motion to quash were not

supported by evidence and do not satisfy the Petitioners’ evidentiary

burden. “The proponent of a motion to quash the indictment has the

burden of proof and may offer proof of the allegations in the motion to

quash.” State v. Perez, 948 S.W.2d 362, 364 (Tex. Crim. App. 1997).

Petitioners attempt to paper over this procedural defect

by shifting the burden of proof to the Respondents. Pet. Brief

at 3. The State’s duty in prosecution, however, is only to

prove the elements of the crime charged. Tex. Code Crim. P.

Ann. art. 38.03 (West 2002). Additional facts cannot be

inferred from the State’s failure to prove non-elements.

Because section 21.06 applies to all deviant sexual

intercourse between persons of the same sex, proof that the

Petitioners’ conduct was non-consensual, commercial or

public would have been superfluous to the state’s

prosecution under Section 21.06. There is simply no

evidence in the record to support Petitioners’ challenge to the

constitutionality of section 21.06 as applied to private,

consensual, non-commercial sexual activity.

In the absence of a sufficient record to support

Petitioners’ challenge to Section 21.06, this case must be

viewed, at best, as a facial challenge to the statute. Lawrence

v. Texas, 41 S.W.2d 349, 350 (Tex. Ct. App. 2001) (“[T]he

facts and circumstances of the offense are not in the record. .

. . Thus, the narrow issue presented here is whether Section

21.06 is facially constitutional.”). Pursuant to this Court’s

ruling in U.S. v. Salerno, 481 U.S. 739, 745 (1987), a party

bringing a facial challenge “must establish that no set of

circumstances exists under which the Act would be valid.”

See also Troxel v. Granville, 530 U.S. 57, 85 (Stevens, J.,

dissenting) (“I believe that a facial challenge should fail

whenever a statute has ‘a “plainly legitimate sweep.”””).

Petitioners do not dispute that the statute would be valid as

enforced against public or commercial sexual activity. Pet.

Brief at 6, 39-40. Having conceded that the Act would be

valid under some circumstances, Petitioners’ facial challenge

must fail.

Il. THE COURT SHOULD AVOID ANY

HOLDING WHICH WOULD UNDERMINE

MANY STATE LAWS PROTECTING

MARRIAGE AND THE TRADITIONAL

FAMILY STRUCTURE.

Without explicitly challenging the Texas marriage law,

Petitioners and their amici have advanced arguments which

could significantly undermine state laws regulating marriage.

As noted below, every state, with the partial and recent

exception of Vermont,’ elevates marital relationships over all

other domestic relationships. This historically unanimous

preference for marriage would be called into question were

this Court to hold that there exists either a fundamental right

to engage in sodomy, or a constitutional equivalence

between same-sex and opposite-sex unions.

Petitioners seek to effectively, though indirectly,

undermine marriage by constitutionalizing a perceived social

change: “Today, the prevalence and widespread acceptance

of extramarital sex and birth control, accompanied by

heightened respect for reproductive privacy, have rendered

anachronistic the conception of marriage as a regulator of

sex.” Laurence Drew Borten, Note, Sex, Procreation, and the

State Interest in Marriage, 102 Colum. L. Rev. 1089, 1089

(2002). This aim is inappropriate because of the unique

constitutional status of marriage premised on its unparalleled

contribution to society.

A vigorous public debate over the nature and definition of

marriage is currently taking place in American homes,

workplaces, places of worship, town halls, statehouses, and

courtrooms. This marriage debate involves fundamental

questions of social pluralism, limited government, and core

world views. Petitioners seek to end that debate and

> In 2000, the Vermont Legislature enacted a “civil unions” law granting

same-sex couples who register their civil union all the benefits of

marriage. Vt. Stat. Ann., tit. 15, § 1201, et seq. (2002). Even under

Vermont law, however, marriage remains the union of one man and one

woman. Vt. Stat. Ann., tit. 15, § 8 (2002).

, a. |

circumvent by judicial decree, the consensus-building

process of legitimate, democratic self-government.

A. Marriage is the primary institution for

regulating sexual behavior.

Marriage is the primary social institution for regulating

sexual behavior. “All societies . . . control sexual behavior in

some manner; the two most universal forms of control

appear to be the incest taboo and marriage. . . . Sex outside

of marriage, unlike sex before marriage, is not permitted in a

majority of societies.” Bert N. Adams, The Family: A

Sociological Interpretation 188-89 (1986). The state strives

to channe] sexual behavior into marriage, for that is the

relationship and bonding environment in which sexual love

can most safely and responsibly be expressed. The primary

means is by direct regulation of marriage, but supporting and

reinforcing are a host of laws including criminal and civil

laws that prohibit and regulate nonmarital sexual behavior.

As two reknowned historians put it: “[S]ex is a river of fire

that must be banked and cooled by a hundred restraints if it

is not to consume in chaos both the individual and the

group.” Will Durant & Ariel Durant, The Lessons of History

35 - 36 (1968).

Marriage “strengthens the social interest in channeling

and limiting procreative sexual behavior to responsible

relationships of parental commitment and complementarity.

More clearly than any other institution, traditional male-

female marriage clearly links sexual behavior with child

rearing through procreation. It provides a bright line for

relationships of intimacy. It provides a clear, well -

established, universally respected standard for allocating

parental responsibility.” Lynn D. Wardle, “Multiply and

Replenish”: Considering Same-Sex Marriage in Light of

State Interests in Marital Procreation, 24 Harv. J. L. & Pub.

Pol’y 771, 794 (2001). Marriage, moreover, conforms to

powerful, intuitive social mores linking marriage, sexual

relations, and procreation.

Society has compelling interests in protecting the social

institution — marriage — that has best furthered social

interests in responsible sexual behavior, and in preserving

the linkage that institution forges among sex, procreation,

and child rearing.

The social connection linking marriage and sexual

behavior is as old as marriage itself. Plato proposed that

"marriage laws [be] first laid down" and that "a penalty of

fines and dishonor” be imposed upon all who did not marry

by certain ages because “intercourse and partnership between

married spouses [is] the original cause of childbirths.” Plato,

The Laws of Plato 108-109, 161 (Thomas L. Pangle trans.,

University of Chicago Press 1980). Similarly, concern about

the linkage between marriage and responsible sexual

behavior and procreation was one of the major purposes for

marriagé regulation in Roman law. Susan Treggiari, Roman

Marriage: Justi Coniuges From the Time of Cicero to the

Time of Ulpian 5-11 (1991). During the centuries following

the Roman era, the primary intellectual justification for

prioritizing marriage and marriage regulations has remained

the fostering responsible sexual intercourse and

reproduction. Locke linked “the increase of Mankind, and

the continuation of the Species in the highest perfection,”

with “the security of the Marriage Bed, as necessary

thereunto.” John Locke, Two Treatises of Government 183

(Cambridge Univ. Press 1988) (1690).

The history of marriage law could be viewed primarily as

the history of the regulation of sex, procreation, and child

rearing, for those concerns have long outweighed such

modern (and postmodern) interests as romantic love,

companionate equality, interspousal intimacy, and economic

maximization as the core societal concerns regarding

marriage. See generally Will Durant, The Reformation: A

History of European Civilization from Wyclif to Calvin:

1300-1564 at 303 (1957) ("Love was considered a normal

result, not a reasonable cause, of marriage."); Mary Ann

Glendon, The Transformation of Family Law passim (1989);

William J. Goode, World Revolution and Family Patterns 38

(1963); Lawrence Stone & Jeanne Stone, An Open Elite?

England 1540-1880 at 122 (1984); Sex in the West, The New

Republic, July 8, 1985, at 25, 32.

Even today, channeling sexual behavior remains a

primary purpose of marriage in our society. As one

prominent American community puts it: “Marriage is the

uniting of one man and one woman in covenant commitment

for a lifetime. It is God's unique gift to reveal the union

between Christ and His church, and to provide for the man

and the woman in marriage the framework for intimate

companionship, the channel for sexual expression according

to biblical standards, and the means for procreation of the

human race.” The Baptist Faith and Message (revised by the

Southern Baptist Convention, June 10, 1998)

<http://www.sbcnet.org/bfm 1 8.htm>.

B. This Court has extended constitutional

significance to the institution of marriage as

the primary institution to foster responsible

sexual behavior.

This Court has long recognized a “right to marry.”

Although the existence of such a right was intimated as early

as 1923 in Meyer v. Nebraska, 262 U.S. 390 (1923), the first

case to uphold the right to marry was Loving v. Virginia, 388

U.S. 1 (1967). In that case, the Court overturned the

criminal convictions of a couple who had violated Virginia’s

anti-miscegenation laws. Subsequent cases have reiterated

the fundamental constitutional importance of marriage.

Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley,

482 U.S. 78 (1987).

In many cases, this Court has noted the social importance

of the marriage relationship, on which rests its constitutional

status. Meister v. Moore, 96 U.S. 76, 81 (1877); Reynolds v.

United States, 98 U.S. 145, 165-166 (1878).

As this Court noted 118 years ago, states have a clear and

legitimate right to promote marriage as an important state

interest.

For certainly no legislation can be supposed more

wholesome and necessary in the founding of a free,

self-governing commonwealth, fit to rank as one of

the coordinate States of the Union, than that which

seeks to establish it on the basis of the idea of the

family, as consisting in and springing from the

union for life of one man and one woman in the

h ‘y estate of matrimony; the sure foundation of all

that is stable and noble in our civilization; the best

guaranty of that reverent morality which is the

source of all beneficent progress in social and

political improvement.

Murphy v. Ramsey, 114 U.S. 15, 45 (1885).

Nearly forty years ago, this Court noted that marriage is a

social institution which predates even the creation of our

Constitution and Bill of Rights:

We deal with a right of privacy older than the Bill

of Rights — older than our political parties, older

than our school system. Marriage is a coming

together for better or for worse, hopefully enduring,

and intimate to the degree of being sacred. It is an

association that promotes a way of life, not causes;

a harmony in living, not political faiths; a bilateral

loyalty, not commercial or social projects. Yet it is

an association for as noble a purpose as any

involved in our prior decisions. -

Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

Similarly, this Court has recognized the connections

between procreation, the right to marry, and the regulation of

nonmarital sexual activity.

It is not surprising that the decision to marry has

been placed on the same level of importance as

decisions relating to procreation, childbirth, child

rearing, and family relationships. As the facts of this

case illustrate, it would make little sense to

recognize a right of privacy with respect to other

matters of family life and not with respect to the

decision to enter the relationship that is the

foundation of the family in our society. . . . Surely, a

decision to marry and raise the child in a traditional

family setting must receive equivalent protection

and, if appellee’s right to procreate means anything

at all, it must imply some right to enter the only

relationship in which the State of Wisconsin allows

sexual relationships legally to take place.

Zablocki v. Redhail, 434 U.S. 374, 386 (1978).

As recently as 2001, this Court recognized the social

value of marriage in upholding an immigration paternity rule

which imposed a greater burden of proof on unwed fathers

than on either married fathers or on mothers, Nguyen v.

IN.S., 533 U.S. 53 (2001). See also, United States v.

Virginia, 518 U.S. 515, 522 (1996) (quoting Ballard v.

United States, 329 U.S. 187, 193-94 (1946): “The two sexes

are not fungible; a community made up exclusively of one is

different from a community composed of both.””)

i. Marriage is the fundamental element of

American democratic society.

As one commentator has noted, “Through the

commitments of marriage and kinship both children and

parents experience the need for and the value of authority,

responsibility, and duty in their most pristine forms.” Bruce

C. Hafen, The Constitutional Status of Marriage, Kinship

and Sexual Privacy: Balancing the Individual and Social

Interests 81 Mich. L. Rev. 463, 476 (1983). He also notes

that “Marriage alone plays a critica! role in the democratic

structure by interposing a significant egal entity between the

individual and the State.” Jd. at 483.

Thus, the constitutional status of marriage and the

marriage-based family, which is unique to those institutions,

is justified by the singular benefit they confer on our political

system. In recommending passage of the federal Defense of

Marriage Act, The Report of the Committee on the Judiciary

of the House of Representatives noted a recent report of the

Council of Families in America which stated:

The enormous importance of marriage for civilized

society is perhaps best understood by looking

comparatively at human civilizations throught

history. Why is marriage the most universal social

institution, found prominently in virtually every

known society? Much of the answer lies in the

irreplaceable role that marriage plays in childrearing

and in generating continuity.

Simply defined, marriage is a relationship within

which the community socially approves and

encourages sexual intercourse and the birth of

children.

Defense of Marriage Act, Rep. 104-664, Comm. on

Judiciary, 104" Cong., 2d Sess., July 9, 1996, at 13-14.

ii. Marriage is the optimal setting for

procreation and child rearing.

Similarly, the marriage-based family provides the ideal

setting in which children may be both born and reared

because, “the commitments inherent in formal families do

increase the likelihood of stability and continuity for

children. Those factors are so essential to child development

that they alone may justify the legal incentives and

preferences traditionally given to permanent kinship units

based on marriage. The same factors can justify the denial of

legal protection to unstable social patterns that threaten

children’s developmental environment.” Bruce C. Hafen,

The Constitutional Status of Marriage, Kinship and Sexual

Privacy: Balancing the Individual and Social Interests 81

Mich. L. Rev. 463, 475-476 (1983).

In the context of citizenship requirements, this Court has

recognized as “important governmental objectives” (1)

“assuring that a biological parent-child relationship exists”

and (2) ensuring a potential for the development of “not just

a relationship that is recognized as a formal matter, by the

law, but one that consists of the real, everyday ties that

provide a connection between child and citizen parent.”

Nguyen v. I.N.S., 533 U.S. 53, 62 & 64 (2001).

These important interests are uniquely advanced by a

preference for sexual relations within marriage because a

child conceived as a result of the relationship between

married parents is legally guaranteed some kind of

relationship to both of his or her parents. A sexual

relationship outside of marriage that results in conception of

a child brings with it no such guarantee. A sexual

relationship with no possibility of procreative potential is

even farther removed from these interests.

C. Texas law endorses and affirmatively prefers

sexual relations within marriage

The Texas legislature has recognized marriage as the

only institution within which sexual activity is licensed and

affirmatively endorsed. Tex. Fam. Code Ann. § 2.001(a)

(West 2002). In 1973, the same year in which section 26.01

was enacted, the Legislature also adopted the precursor to

the current Texas Family Code § 2.001, providing that

marriage licenses may be granted only to male-female

unions. Acts 1973, 63rd Leg., p. 1596, ch. 577, § 1.

If the Texas Legislature believes, as this Court has

indicated, that the male-female union of marriage is the

foundation upon which social relations, social obligations

and duties, and the principles of American government rest,

it is fully reasonable for the Legislature to prefer marriage

over same-sex unions. Reynolds v. United States, 98 U.S.

145, 155-56 (1878). Moreover, because of the stability

needed to provide a secure environment for children, and to

minimize confusion in the ordering of economic unions, the

Legislature also saw fit to prefer marriage over nonmarital

opposite-sex unions.

Among the legal responsibilities of marriage is the duty

of a married individual to provide support for his or her

spouse. Texas Fam. Code Ann. § 2.501(a) (West 2002)

establishes a legal duty between spouses for the mutual

support of each other. Section 2.501(b) goes on to establish a

married person’s civil liability to third parties who provide

necessaries to that person’s spouse. Tex. Fam. Code Ann. §

2.501(b) (West 2002). Similarly, because Texas is a

community property state, all property acquired by either

spouse during the marriage is presumed to be community

property, jointly held by each spouse in an undivided one-

half interest. Tex. Fam. Code Ann. § 3.003 (West 2002).

Furthermore, a married person is subject to siatutory

limitations upon his or her ability to transfer property upon

death or dissolution of the marriage. Upon dissolution, Texas

law requires that the property of the spouses be equitably

divided between them, taking into consideration the rights of

each party and of any children of the marriage. Tex. Fam.

Code Ann. § 7.001 (West 2002). Upon death, the deceased

spouse may devise no more than one-half of his or her

community estate to a third party, as the surviving spouse

maintains a one-half interest in the estate.

On the basis of this legal relationship, the Texas

legislature has also assigned a number of legal benefits

which recognize and promote the family relationship created

through marriage. Among the intangible benefits recognized

in Texas law are the right of spousal privilege and

confidential communications, Rule 504, Tex. Rules of

Evidence (2002), and the right to decide final disposition of a

spouse’s body, Tex. Health and Safety Code Ann. § 711.002

(West 2002).

Examples of more quantifiable benefits available under

Texas law include health insurance benefits, e.g., Tex. Ins.

Code Ann. § 1551.004 (West 2002) (definition of covered

dependents of state employees), Tex. Ins. Code Ann. §

1575.003 (West 2002) (definition of dependents of public

school system employees); retirement and survivor benefits,

e.g., Tex. Gov’t Code Ann. § 615.073 (West 2002) (public

employee survivor health benefits), Tex. Rev. Civ. Stat. Ann.

art. 6243a-1 (West 2002) (police and fire personnel

pensions), Tex. Rev. Civ. Stat. Ann. art. 6243e (West 2002)

(local fire fighters retirement act); workers compensation

benefits, Tex. Lab. Code Ann. §§ 408.182-.183 (West 2002),

wrongful death benefits, Tex. Civ. Prac. & Rem. Code Ann.

§ 71.004 (West 2002), intestacy rights, Tex. Prob. Code Ann.

§ 45 (West 2002), presumptive right of community interest

in property held at dissolution, Tex. Fam. Code Ann. § 3.003

(West 2002), and the right of spousal support, Tex. Fam.

Code Ann. § 2.501(a) (West 2002).

Overall, 1429 provisions of the Texas Code contain the

words “marriage,” “spouse,” “husband,” or “wife.” Though

not all of these statutory sections confer actual benefits or

responsibilities upon married couples, the volume of

references to marriage and married relationships indicates

the central role which marriage plays in Texas law.

In contrast, the Texas legislature extends no formal

recognition of unmarried domestic partnerships as a family

status or legal relative. Rather, the legislature has clearly

articulated that “[a] member of a civil union or similar

relationship entered into in another state between persons of

the same sex is not a spouse.” Tex. Fam. Code Ann. §

3.401(5) (West 2002). Similarly, title 8 of the Texas

Government Code, governing public retirement systems,

States:

For purposes of this title, the state may not give

effect to a: (1) public act, record, or judicial

proceeding that recognizes or validates a marriage

or civil union between persons of the same sex; or

(2) right or claim asserted as a result of the

purported marriage or civil union.

Tex. Gov’t Code Ann. § 810.001(h) (West 2002).

All four sections of Texas code containing the phrase

“domestic partnership” refer to a business relationship under

the Texas Revised Limited Partnership Act and the Texas

Revised Partnership Act. Tex. Rev. Civ. Stat. Ann. art.

6132a-1 (West 2002); Tex. Rev. Civ. Stat. Ann. art. 6132b-

9:02 (West 2002); Tex. Rev. Civ. Stat. Ann. art. 6132b-9.03

(West 2002); Tex. Rev. Civ. Stat. Ann. art. 6132b-9.05

(West 2002).

D. Section 21.06 is part of an incremental

system channeling sexual activity into

marriage and minimizing sexual activity

outside of marriage.

Not only has the Texas legislature adopted a system of

laws to strengthen and preserve marital unions, but the

Legislature has also adopted an incremental statutory system

which expresses its preference for marriage as the

relationship within which sexual activity is to exist. This

system may be viewed as an effort to draw Texas couples

ee ee

into the institution of marriage wherever possible, while at

the same time discouraging and/or prohibiting sexual

conduct outside of marriage.

While Petitioners present section 21.06 as a law unique

in its application and scope, singling out a particular class of

people, the Texas legislature has sought to discourage all

unmarried sexual relationships. Texas Education Code §

28.004 requires that Texas schools teach abstinence as the

preferred mode of conduct for unmarried students, urging

students to practice “abstinence from sexual activity before

marriage.” Tex. Educ. Code Ann. § 28.004 (West 2002).

Notably, the state policy discouraging sexual activity among

students is clearly couched in the context of marriage.

Similarly, in teaching students how to avoid HIV infection,

schools are to teach students “the value of abstinence and

long-term mutual monogamy.” Tex. Educ. Code Ann. §

51.919 (West 2002).

In the Texas Public Health Code, materials used in

teaching minors are to “emphasize sexual abstinence before

marriage and fidelity in marriage as the expected standard in

terms of public health.” Tex. Health & Safety Code Ann.

§85.007(b)(1) (West 2002). The Legislature proceeded to

state that “abstinence from sexual intercourse outside of

lawful marriage is the expected societal standard for school-

age unmarried persons.” Tex. Health & Safety Code Ann. §

163.001 (West 2002).

Texas law expresses its disapproval of all non-

procreative sexual conduct by maintaining a _ general

definition of “deviate sexual intercourse.” Tex. Penal Code

Ann. § 21.01(1) (West 2002). Thus, sexual activity involving

objects, the mouth, or the anus is.uniformly classified as

“deviate” under Texas law. A dictionary definition of

“deviate” suggests that “deviate” conduct is that which

“departure from an accepted norm.” Random House

Webster’s College Dictionary 370 (1991), Thus, all “deviate

sexual conduct” is a departure from the accepted norm in

Texas, whether between two persons of the same sex or two

persons of the opposite sex. These and other sections of

Texas law make it clear that the Legislature disapproves both

of “deviate sexual conduct,” and of all sexual conduct

between unmarried persons.

Obviously, classroom disapproval of extramarital sexual

activity is distinct from a criminal prohibition of deviate

sexual conduct between persons of the same sex. Such a

distinction, however, need not be considered an arbitrary and

capricious attack on a class of “homosexuals” as Petitioners

suggest. See, e.g.,Pet. Brief at 45 (describing section 21 .06 as

part of a history of “irrational anti-gay discrimination.”).

Criminal prohibitions of or disincentives for nonmarital

sexual relations are part of the scheme of laws supporting

marriage. The constitutional significance of the distinction

between marital sex and nonmarital sex was eloquently

explained by Justice Harlan in his prophetic dissent in Poe v.

Ullman, 367 U.S. 497, 522, 552-553 par pe —

explaining the critical importance of marriage of marit

ne sy he noted that even the family could be regulated in

some respects, including regulation of some sexual behavior

by laws forbidding adultery and incest, for example, but that

to attempt to regulate marital sex would intrude upon the

constitutionally protected realm of marital (family) privacy.

That distinguished regulation of marital intimacy from

regulation of nonmarital sexual behavior.

“(T)he family * * * is not beyond regulation,”

Prince v. Commonwealth of Massachusetts, [321

U.S. 158, 166 (1944)], and it would be an absurdity

to suggest either that offenses may not be

committed in the bosom of the family or that the

home can be made a sanctuary for crime. The right

of privacy most manifestly is not an absolute. Thus,

I would not suggest that adultery, homosexuality,

fornication and incest are immune from criminal

enquiry, however privately practiced. So much has

been explicitly recognized in acknowledging the

State's rightful concern for its people's moral

welfare. [ ] 367 U.S. at 545-548 [] But not to

discriminate between what is involved in this case

and either the traditional offenses against good

morals or crimes which, though they may be

committed anywhere, happen to have been

committed or concealed in the home, would entirely

misconceive the argument that is being made.

Adultery, homosexuality and the like are sexual

intimacies which the State forbids altogether, but

the intimacy of husband and wife is necessarily an

essential and accepted feature of the institution of

marriage, an institution which the State not only

must allow, but which always and in every age it

has fostered and protected. It is one thing when the

State exerts its power either to forbid extra-marital

sexuality altogether, or to say who may marry, but it

is quite another when, having acknowledged a

marriage and the intimacies inherent in it, it

undertakes to regulate by means of the criminal law

the details of that intimacy.

In sum, even though the State has determined that

the use of contraceptives is as iniquitous as any act

of extra-marital sexual immorality, the intrusion of

the whole machinery of the criminal law into the

very heart of marital privacy, requiring husband and

wife to render account before a criminal tribunal of

their uses of that intimacy, is surely a very different

thing indeed from punishing those who establish

intimacies which the law has always forbidden and

which can have no claim to social protection.

Poe v. Ullman, 367 U.S. 497, 522, 552-553 (1961).

In this assessment, Justice Harlan reflected a moral sense

deeply rooted not only in the history of western civilization,

but also deeply rooted in the history of this Nation. From the

time of Thomas Jefferson, homosexual sodomy has been

proscribed to protect marriage. A Bill for Proportioning

Crimes|and Punishments in Cases Heretofore Capital in The

Papers of Thomas Jefferson, Vol. 2, 1777 to 18 June 1779, at

492, 493, 497 now * (Julian P. Boyd ed., Princeton Univ.

Press 1950).

E. In failing to distinguish between married

and unmarried couples, Petitioners would

have this court require equal legal

recognition of same-sex couples and married

couples.

Petitioners argue that Section 21.06, and indeed all state

prohibitions of sodomy, are products of invidious

discrimination against gay and lesbian persons, intended

solely to express “negative attitudes” toward such people.

Pet. Brief at 39. Phrased in a positive light, Petitioners’

argument suggests that a government must express the same

approval for same-sex unions as it extends to opposite-sex

unions. Thus, by extension of Petitioners’ argument, any law

precluding same-sex couples from marriage or other family

relations is a product of that same individious discrimination.

Indeed, this is precisely what plaintiffs have argued in

cases across the country seeking to invalidate the marriage

laws of various states. As the plaintiffs in the Massachusetts

marriage litigation argued, “If the concept of being gay or

lesbian means anything, it includes those who wish to share

their most intimate relationship with a partner of the same

gender. Unlike rules preventing consanguineous or under-

age marriages which operate evenly across the population

and apply to everyone, rules preventing individuals from

marrying others of the same sex operate systematically to

exclude the class of gay men and lesbians.” Brief of

Plaintiffs-Appellants, Goodridge v. Dept. of Public Health,

at 61, No. SJC-08860 (Mass.). Similarly, the Plaintiffs

challenging New Jersey’s marriage law seek to have the law

invalidated on equal protection grounds under the state

constitution, arguing that the state unfairly discriminates

against gay and lesbian persons by denying them the right to

marry a person of the same sex. Complaint, Lewis v. Harris

at para. 66-67, No. 15-03, Mercer Co. Super. Ct. (N.J.).

Plaintiffs in Indiana have argued that same-sex “marriage” is

required under the equal privileges guarantee of the Indiana

Constitution. Plaintiffs’ Memorandum in Opposition to

Defendants’ Motion to Dismiss at 34, Morrison v. Sadler,

Docket # 49D 13-021 1-PL-001946, Marion Super. Ct. (Ind.).

F. Numerous state and federal laws could be

impacted by the Court’s decision in this case,

removing an important public policy debate

from the political process

Every state in the United States legally recognizes the

social contributions of marriage.‘ In recent years, 36 states

have explicitly reaffirmed marriage as a male-female union,

highlighting the legal distinction between same-sex and

opposite-sex couples.* This action in turn relies in part on the

* Even in those states in which the marriage statute does not explicitly

declare marriage to be a male-female union, courts have uniformly

interpreted the law in this manner. See, e.g., Baker v. Nelson, 191

N.W.2d 185, 185 (Minn. 1971); Singer v. Hara, 522 P.2d 1187, 1189

(Wash. Ct. App. 1974); Baker v. State, 744 A.2d 864, 869 (Vt. 1999).

Ala. Code § 30-1-19 (2002); Alaska Const. art. I, § 25; Ariz. Rev. Stat.

Ann. § 25-101 (West 2000); Ark. Code Ann. § 9-11-107 (2002); Ark.

Code Ann. § 9-11-109 (2002); Ark. Code Ann. § 9-11-208 (2002); Cal.

Fam. Code § 308.5 (West 2002); Colo. Rev. Stat. § 14-2-104 (2002);

Del. Code Ann. tit. 13, § 101 (2001); Fla Stat. Ann. § 741.212 (West

2000); Ga. Code 19-3-3.1 (2002); Haw. Rev. Stat. § 572-3 (1999); Haw.

Const. art. I, § 23; Idaho Code § 32-209 (2002); 750 Il. Comp. Stat.

Ann. § 5/212 (West 2000); Ind. Code § 31-11- 1-1 (2002); la. St. 595.2

(2002); Kan. Stat. Ann. § 23-101 (1999); Ky. Rev. Stat. Ann. §§

federal Defense of Marriage Act (DOMA) enacted

overwhelmingly by Congress in 1996 and signed into law by

President Clinton. Pub. L. 104-199 sec. 2, 100 Stat. 2419

(Sep. 21, 1996) codified at 28 U.S.C. §1738C (1997).

In addition, myriad laws from across the United States

rest upon this definition of marriage. In the classroom, state

and federal laws require that students be taught abstinence

outside and fidelity within the male-female union =

marriage.° State adoption laws recognize marriage as

basis for joint adoptions’ and step-parent adoptions.’ Tax

laws are constructed to recognize the unity of the marital

relationship, permitting joint filing by husband and wife.” A

402.040, 404.045 (Michie 2002); La. Civ. C. art. 89 (West 2000),

amended by 1999 La. Act of July 2, 1999, No. 890 § 1; Me. Rev. Stat.

Ann. tit. 19-A, § 701 (West 2002); Mich. Comp. Laws Ann. § 551.1

(West 2000); Mich. Comp. Laws Ann. § 551.271 (West 2000); Minn.

Stat. Ann. § 517.01 (2002); Miss. Code Ann. § 93-1-1 (2002); Mo. Rev.

Stat. § 451.022 (West 2002); Mont. Code Ann. § 40-1-401 (2002); Neb.

Const. art. I, § 29; Nev. Question 2 (approved Nov. 5, 2002); N.C. Gen.

Stat. § 51-1.2 (West 2000); N.D. Cent. Code § 14-03-01 (1960); 43 Okla.

St. Ann. § 3.1 (West 2000); Pa. Consol. Stat.Ann. § 1704 (West 2000);

S.C. Code Ann. § 20-1-15 (West 2000); S.D. Cod. Laws § 25-1-1

(2000); Tenn. Code Ann. § 36-3-113 (2002); Utah Code Ann. § 30-1-4

(2000); Va. Code § 20-45.2 (West 2000); Wash. Rev. Code Ann. §

26.04.020 (West 2000); W.Va. Code § 48-2-603 (2002).

* See 42 U.S.C. § 710 (2002) (providing grants to states for “abstinence

gains to be realized by abstaining from sexual activity” and the normative

role of abstinence outside of marriage and faithful monogamy within

” See S Stat. § 26-10A-5 (2002); Ariz. Rev. Stat. § 8-103 (2002); 13

Del. Code § 951 (2002); Fi. Stat. § 63.042 (2002); la. Stat. § 600.4

(2002); 750 Ill. Comp. Stat. § 50/2 (2002); Kan. Stat. § 59-2113 (2002);

18-A Maine Rev. Stat. § 9-301 (2002); Mt. Code Ann. 42-1-106 (2002);

10 Ok. Stat. §7503-1.1; Wis. Stat. § 48.82 (2002).

* See Ala. Stat. § 26-10A-27 (2002); Cal. Fam. Code App. § 227.10

(2002); Ga. St. § 19-8-3(c) (2002); ; lowa. Code § 600.4 (2002); Mt.

Code Ann. § 42-4-302 (2002); N.M. Stat. § 32A-5-32 (2002); N.C. Stat.

§ 48-4-101 (2002); Vt. Stat. Ann. tit. 15A, § 4-101 (2002).

See, e.g., 26 U.S.C. § 6013 (2002).

recent study conducted by the Office of Legislative Research

in Connecticut identified 588 laws which distinguish on the

basis of marriage or marital status. Susan Price-Livingston,

Connecticut Laws Involving Marital Status, OLR Research

Report #2001-R-0606 (Feb. 5, 2002) (Conn.). These results

are comparable to less definitive research done in other

States.

“The word ‘marriage’ appears in more than 800 sections

of federal statutes and regulations, and the word ‘spouse’

appears more than 3,100 times.” Defense of Marriage Act,

Rep. 104-664, Comm. on Judiciary, 104" Cong., 2d Sess.,

July 9, 1996, at 10. Congress was wise enough to exercise

its power under Article IV, Section I of the Constitution to

repudiate an effort to force states to legalize same-sex

marriage by distortion of the Full Faith and Credit Clause.

Defense of Marriage Act, Pub. L. 104-199, September 21,

— 1996, 110 Stat 2419 (Sept. 21, 1996). This Court should

repudiate the effort to force states to legalize same-sex

marriage through a distortion of the Equal Protection and

Due Process Clauses.

G. Deference to the Texas Legislature would

preserve the important principle of

Sederalism in family laws.

The regulation of domestic relations, including the

definition and regulation of marriage, has long been

considered to fall almost entirely to the states. “From the

earliest days of the Republic until the recent past, family law

has unquestionably belonged to the states.” Anne C. Dailey,

Federalism and Families, 143 U. Pa. L. Rev. 1787, 1821

(1995). The federal government has no constitutional

authority to directly regulate marriage or divorce or other

not infrequently, that the “[rjegulation of domestic relations

{is} an area that has long been regarded as a virtually

exclusive province of the states.” Sosna v. lowa, 419 U.S.

393, 404 (1975); see also Lehman v. Lycoming County

Children's Services Agency, 458 U.S. 502 (1982); Moore v.

Sims, 442 U.S. 415 (1979); Barber v. Barber, 62 U.S. (21

How.) 582 (1859). Thus, the direct and indirect regulation

and enforcement of family law is left primarily to state

courts, and the governing rules are state, not federal, laws.

Federalism’s deference to state regulation of family

relations has a constitutional foundation. Substantively, the

powers of the federal government are limited to those

specifically enumerated in the Constitution, and since the

power to regulate family relations is not so enumerated that

power is deemed reserved to the States. See US.

Constitution, Amendment X; Lynn OD. Wardle,

Institutionalizing Marriage Reform Through F. ederalism in

Revitalizing the Institution of Marriage for the Twenty First

Century (2002).

In the Federalist Papers, No. 10 James Madisons

famously declared: "The federal Constitution forms a happy

combination . . . ; the great and aggregate interests being

referred to the national, the local and particular to the State

legislatures." The Federalist No. 45, at 83 (James Madison)

(Clinton Rossiter ed., 1961). He again explained::

The powers delegated by the proposed constitution

to the federal government are few and defined.

Those that remain in the State governments are

numerous and indefinite. The former will be

exercised principally on external objects, as war,

peace, negotiation, and foreign commerce ... . The

powers reserved to the several States will extend to

all the objects which, in the ordinary course of

affairs; concern the lives, liberties, and the

properties of the people, and the internal order,

improvement, and prosperity of the State.

Id. at 292-93.

Hamilton suggested in Federalist No. 17 that the national

government would be concerned with matters of

“[c]ommerce, finance, negotiation, and war” while the States

governments would have priority in regulation “{t}he

administration of private justice between citizens of the same

State, the supervision of agriculture and of other concerns of

a similar nature,” and “regulating all those personal interests

and familiar concerns to which the sensibility of individuals

is more immediately awake .. . .” Id. at 118-120. He also

noted: “[Tjhe States will retain under the proposed

Constitution a very extensive portion of active sovereignty.”

Id. at 290.

Since 1789 the broad, general authority of the states to

regulate family relations, and the absence of virtually any

authority of the federal government to directly regulate

family relations has been one of the clearest boundary lines

of our federalism. The regulation of family relations

historically has been, and as a matter of constitutional law

still remains, primarily a matter of state law.

In several notable recent decisions, this Court has applied

the federalist principle to invalidate as unconstitutional laws

enacted by Congress that went beyond the limited powers

delegated to Congress. See, ¢. g., United States v. Morrison,

529 U.S. 598, 607, 615-16 (2000). Marriage has been a

particular area of deference to state regulation. This Court

has reiterated its declaration first made in 1878, that “[t}he

State . . . has absolute right to prescribe the conditions upon

which the marriage relation between its own citizens shall be

created, and the causes for which it may be dissolved.”

Sosna v. lowa, 419 U.S. 393, 404 (1975), quoting Pennoyer

v. Neff, 95 U.S. 714, 734-35 (1878). While the exact

contours of constitutional federalism are not clear,

“[t]hroughout the debate on federalism, family law emerges

as the one clear case in which federal involvement is

inappropriate, an uncontested core rendered special precisely

because almost everything else has been nationalized and the

limits on federal power elsewhere are so murky.” Jill Elaine

Hasday, Federalism and the Family Reconstructed, 45

UCLA L. Rev. 1297, 1297-98 (1998).

Behind these federalism practices are many strong and

important policy values. Thus, federalism in family law is

not a mere anachronism but is a doctrine based upon

significant perceptions of the realities associated with the

government of a large, heterogenous nation. These

underlying policy values include pluralism,

communitarianism, experimentation, and respect for state

expertise and sovereignty. Federalism in family law

preserves pluralism by guaranteeing at least fifty different

zones for family policy development. By insisting that

marriage be regulated a local (state) rather than national

level, the vitality of small communities - who would be

drowned out in policy debates at the national level but who

may have some significant voice in state politics - is

enhanced. Federalism in family law reflects the long-held

belief that laws regulating families should reflect local

values because those are such sensitive, delicate matters that

any attempt to regulate them at the national level would

guarantee neglecting the interests of minority communities.

Charles Louis de Secondat (Baron de Montesquieu), The

Spirit of the Laws, Book XIX, ch. 14, and at Book XIX, ch.

5 (T. Nugent trans., 1902). Federalism allows the states to

experiment with different policies, rules and procedures in a

way that functions as fifty separate laboratories. As Justice

Brandeis wrote famously: “It is one of the happy incidents of

the federal system that a single courageous State may, if its

citizens choose, serve as a laboratory; and try novel social

and economic experiments without risk to the rest of the

country.” New State Ice v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting). Federalism in family law

entails respect for the expertise of state lawmakers, who have

been enacting and revising family laws since the time of the

American colonies.

Il. THE APPROPRIATE CONSTITUTIONAL

RESPONSE TO THIS CASE IS FOR THIS

COURT TO DEFER TO THE TEXAS

LEGISLATURE.

A. Deferring to the Texas Legislature would not

conflict with this Court’s holding in Romer

v. Evans

Petitioners argue that section 21.06 conflicts with this

Court’s holding in Romer v. Evans, 517 U.S. 620 (1996),

because it is based solely upon “animus” toward

homosexuals, rather than any legitimate state interest. This

argument misunderstands the holding in Romer.

The Supreme Court’s opinion in Romer was a very

narrow one that applies only to laws, such as Colorado’s

Amendment 2, that prohibit a// levels of government from

protecting a particular class of citizens against any kind of

discrimination. The constitutional flaw in Colorado’s

Amendment 2 was its extreme overbreadth, not the identity

of the group it adversely affected. The majority in Romer

applied the lowest standard of review -- the rational basis test

Pos cag hens no legitimate purpose reasonably fit the

tely sweep of the disability imposed

Amendment. /d. at 635. ad inns

The law struck down in Romer was a constitutional

amendment that prohibited all levels of state and local

government from enacting any law or policy providing

homosexuals any “protected status or claim of

discrimination.” Id. at 624. The extreme breadth of this

provision made it possible to imagine instances in which

Amendment 2 would bar policies designed to protect

homosexuals from harms that everyone would acknowledge

to be wrongful. The opinion in Romer concluded that the

“unprecedented” evil of Amendment 2 was that it identified

persons by “a single trait” and then “denie{[d] them

protection across the board.” Romer, 517 U.S. at 633. The

Amendment imposed “a broad and undifferentiated disability

on a single named group” by denying “specific protection”

against “exclusion from an almost limitless number of

transactions and endeavors that constitute ordinary civic life

in a free society.” Jd. at 631-632. Homosexuals were placed

completely outside the protection of the law and could

“obtain specific protection against discrimination only by

enlisting the citizenry of Colorado.” Jd. at 631. As a result, a

review of lower court decisions relying on Romer indicate

that the impact of the opinion has been extremely narrow.

See William C. Duncan, The Legacy of Romer v. Evans—So

Far 10 WIDENER J. PuB. L. 161 (2001).

The Texas law under attack here is not a status-based law

that fences out a particular group from protection against any

and all discriminatory wrongs. '° As the Court explicitly

stated in Romer, ordinary laws will be “sustained” so long as

they are “narrow enough in scope and grounded in a

sufficient factual context for us to ascertain some relation

between the classification and the purpose it serve[s].” Id. at

632-633.

Unlike Colorado Amendment 2, the Texas law focuses

on a narrow and specific issue and does not impose an

across-the-board disability on a particular named group. It

does not target a class of persons defined by status and deny

that class the opportunity to protect itself politically against a

limitless number of discriminatory harms and exclusions.

'° In addition to the factual defects noted in Section I, supra, there

is no indication in the facts of this case that Petitioners would even

identify themselves as homosexuals, undermining even their

standing to claim that the law discriminates on the basis of their

sexual orientation. Pet. Br. at 32, n.24.

The law does not forbid any individual or group from

seeking political protection against any kind of public or

private discrimination. Indeed, anyone who desire to engage

in sodomy is free to use the political process to change the

law that offends them.

If the object of this case were really to invalidate the

Texas sodomy law an argument based on desuetude would

seem more fitting than a constitutional argument. “Criminal

prosecution for sodomy is rare.” Diana Hassel, The Use of

Criminal Sodomy Laws in Civil Litigation, 79 Tex. L. Rev.

813, 813 (2001), and usually occurs when exceptional

circumstances (such as flaunting behavior or solicitation in

public places, commercial sex, threat to children, etc.) are

present. “Sodomy laws are not generally enforced per se--

few individuals are prosecuted specifically for acts of

consensual sodomy.”"!

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

noted that, “Marriage, as creating the most important relation

in life, as having more do to with the morals and civilization

of a people than any other institution, has always been

subject to the control of the legislature.” Jd. at 205. Whatever

this Court does, it should recognize that promoting marriage

is, as this Court has continuously recognized, a valid and

important governmental interest. As such, State legislatures

should be able to enact legislation, otherwise constitutional,

that promotes this interest.

Like the law of all states, and reflecting the decisions of

this Court, Texas law extends licensure and affirmative

'' Baker v. Wade, 553 F. Supp. 1121, 1147 (N.D. Tex. 1982) . See

Richard D. Mohr, Gays/Justice: A Study of Ethics, Society, and Law 51

(1988) (‘[S]odomy laws are virtually never enforced.”); Richard A.

Posner, Sex and Reason 4, 292 (1992) (noting that sodomy laws are

“dead letters’); Deborah Ahrens, Note, Not in Front of the Children:

Prohibition on Child Custody as Civil Branding for Criminal Activity, 75

N.Y.U. L. Rev. 737, 767 n. 142 (2000).

recognition of the sexual relationship within marriage. Tex.

Fam. Code Ann. § 2.001(a) (West 2002). Ignoring the role of

marriage, Petitioners have attempted to isolate section 21.06

from its place within the larger scheme of Texas statutes.

See, e.g., Pet. Brief at 36 (“[The state has] decided to single

out same-sex couples for intrusive regulation and

condemnation.”). Viewed differently, however, section 21.06

may be viewed as part of an incremental system adopted by

the Texas legislature to channel human sexuality into a stable

and monogamous marital relationship. Even if the statutory

scheme does not perfectly conform to that goal, it can be

seen as a rational effort toward that legitimate end. The state

need not negate every possible irrational explanation for the

statute, but simply put forward a single interest to which the

statute is rationally related. Nguyen v. I.N.S., 533 U.S. 53

(2001) (“Under rational basis scrutiny, the means need only

be "rationally related" to a conceivable and legitimate state

end. The fact that other means are better suited to the

achievement of governmental ends therefore is of no

moment under rational basis review.” (internal citations

omitted)). Moreover, as Justice Holmes noted, in Jackman v.

Rosenbaum Co., 260 U.S. 22, 31 (1922): “If a thing has

been has been practised for two hundred years by common

consent, it will need a strong case for the Fourteenth

Amendment to affect it.”

B. Deference to the Texas Legislature

Recognizes the Importance of Open Public

Debate in Democratic Society

As Petitioners note, many states have repealed their

sodomy laws in recent years, either through legislative or

judicial pronouncement. Such developments are testimony to

the ongoing public debate which is currently underway in

American states. This type of public debate over

controversial social issues is a hallmark of American

representative government. As Constitutional rights and

2: Tr PY

liberties are currently construed, individuals on all sides of

the debate may participate in the legislative process and help

to shape the understanding of morality and proper regulation

of sexual activity.

The legislature is the proper arena in which to shape state

public policy. Only in egregious cases should this Court step

in to rewrite state laws. Judicial intervention in this case

would remove this important policy issue from the

democratic process, effectively terminating the public

debate. As this Court held in Romer, a constitution should

not be used to deprive a distinct group of people — even a

minority — of their voice in the political process.

Neither does the fact that other states have repealed their

sodomy laws create a constitutional mandate that Texas

repeal section 21.06. Due Process and Equal Protection

jurisprudence, unlike this Court’s recent holding in Eighth

Amendment jurisprudence, are not dependent upon popular

approval, nor do they evolve at some intangible tipping

point, requiring unanimity wherever there exists a majority.

Cf Washington v. Glucksberg 521 U.S. 702, 721 (1997)

(rooting substantive due process analysis in the “fundamental

rights and liberties which are, objectively, ‘deeply rooted in

this Nation’s history and tradition.” (citations omitted));

Atkins v. Virginia, 536 U.S. 304, 122 Sup.Ct. 2242, 2249

(2002) (holding that the change in sister state policy

regarding execution of mentally retarded persons made such

executions “unusual” and thus constitutionally

repugnant).This Court should not spend its rare coin of

public credibility in a quixotic gesture to speed up or

circumvent the ongoing process of democracy. The needs of

the national government and the business of the Court are

not so lacking nor are the processes of reform in the States so

frozen that this Court should assume the 'ead in the political

process of establishing a national policy on sexual or

marriage regulation.

CONCLUSION

For the reasons stated above, Petitioners’ writ of

certiorari should be dismissed as improvidently granted. In

the alternative, this Court should affirm section 21.06 in

deference to the Texas Legislature’s rightful jurisdiction to

regulate marriage and familial relations.

Respectfully submitted,

VINCENT P. MCCARTHY JOSHUA K. BAKER

Counsel of Record MARRIAGE LAW PROJECT

CENTER FOR MARRIAGE Columbus School of Law

Law The Catholic University of

P.O. Box 1839 America

New Milford, Ct. 06776 3600 John McCormack Rd.

(860) 355-1902 Washington, DC 20064

(202) 319-6755

LYNN D. WARDLE

WILLIAM C. DUNCAN

BRIGHAM YOUNG

UNIVERSITY

518 J. Reuben Clark Law

School

Provo, UT 84602

(801) 422-2617

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