Amicus Curiae Brief — Lawrence v. Texas

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Sapreme (e

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No. 02-102 14 200

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IN THE

Supreme Court of the United States

JOHN GEDDES LAWRENCE

and TYRON GARNER,

Petitioners,

STATE OF TEXAS,

Respondent.

On Writ of Certiorari to the

Texas Court of Appeals for the Fourteenth District

BRIEF AMICUS CURIAE OF THE CENTER FOR THE

ORIGINAL INTENT OF THE CONSTITUTION

IN SUPPORT OF RESPONDENT

JORDAN W. LORENCE MICHAEL P. FARRIS*

JOSHUA W. CARDEN CENTER FOR THE ORIGINAL

ALLIANCE DEFENSE FUND INTENT OF THE

15333 N. Pima Road CONSTITUTION

Suite 165 P.O. Box 1776

Scottsdale, AZ 85260 Purcellville, VA 20134

(480) 444-0020 (540) 338-1776

*Counsel of Record

PRESS OF BYRON S. ADAMS @ WASHINGTON, D.C. # 1-800-347-8208

TABLE OF CONTENTS

ee Cr I siete neenctcnersesscccanereseemseiemnessnneereeesesenes ll

INTEREST OF AMICUS IN THIS CASE ................ccsssessseessssreeees l

EET GE RIEITETINEIIIIE ontoncccnedesonteccccensenssnesteernesneeescestessec 2

I. THE HISTORIC AUTHORITY OF THE STATES TO

CRIMINALIZE SODOMY IS WELL-SETTLED............... 3

A. Proscriptions Against Sodomy Have Deep

Religious, Political, and Legal Roots................... wipenneial 6

B. The History of State Legislation Reveals That Same-

Sex Sodomy Was Uniformly Condemned................... 10

C. The Records of Appellate Courts Do Not Support

the Claim That the States Avoided Prosecuting or

Condemning Same-Sex Sodomy ..............:ccccccceeeeeeeees 14

D. Amici for Petitioners Confuse a General Rule of

Evidence with a Constitutional! Right ..................:cc 18

E. Nothing in the History or Text of the Equal

Protection Clause Supports a Different Result from

This Court’s -Due Process Clause Decision in

SIND IIIT (iccrmnticntndsmuccesctanapiasiondnenuedsecmnesens 20

Il. THIS COURT SHOULD FOLLO\ THE ORIGINAL

INTENT OF THE FRAMERS AND DECLINE

PETITIONERS’ INVITATION TO LEGISLATE

ke __,___«_ re ENTE TTT TETETE 24

A. Ina Republic, Laws Are Created Only by

FE ET eT EET widnnentieiiail 24

B. Legislative Trends Do Not Create New

Comstitatiaannl BRAID ..cccccessosssssssesenssasnnnisiaiaaeuaiaaaie 26

COIN TIIIUIIN .20000000s0s0secesecensesisssesesncnsbesseunnsnielalsiniannnnnnnnnnnnnnnnE 29

APPTINIEX ..000000:0ccccvscocersnssenceseossebienaunenedsensenininnnnnniinnnnnnnnE A-1

ili

TABLE OF AUTHORITIES

Cases Page

Anderson vy. State,

20 Tex. App. 312 (1886)......cc-cccvescssseesssseessseesessseeseesseeesenee 19

Ausman v. Veal,

ES TTT ors cn ences cneesncseansssncnescscssenscenees 13

Barnes v. Glen Theater,

Ic emcernmenenel 4

Bartholomew v. Illinois,

cence cmentncenennns 16

Bowers v. Hardwick,

SE Ge oxcecencrsonsnscssccvsnsvcessesscssces 2, 3, 23, 28, 29

Central State University v. American .iss'n of

University Professors,

EES 22

Cleburne v. Cleburne Living Center, Inc.,

I a sceeninnenemenel 22

Coburn v. Harvey,

18 Wis. 147 (January Term 1864) ..............ccccccccccseeeeeeneees 13

Commonwealth v. Poindexter,

LEI, (ITI cxcccssensnsnsnanesecsnsesnsesscssvcssseses 16

Commonwealth v. Snow,

STITT OEE centineecenenseensqnsvscecenenenevenaceenssscesccsesvees 19

Cross v. State,

17 Tex. Ct. App. 476, 1885 WL 6739 (1885)............0.c0000 24

Day-Brite Lighting, Inc. v. Missouri,

es Cae Ce trtcirnctecnistintntittinstintninitivaianinin 27

Eldred v. Ashcroft,

Oe 4

Foster v. State,

1 Ohio C.D. 261, 1886 WL 2557

ce 20

Gray v. People,

a a I ciicenercierstinsecsiapeatictennintttasnicisisinaiiaaiiniaigiaaas 17

Herring v. State,

Se Be Ce cteninnetnteennincnininiapiiniainnianiiiniin 16

Hicks v. State,

8) 0 Oe 19

Honselman v. People,

CG Se 17, 18, 19, 24

Hutchinson v. State,

ab Fe Be a ceteiecertenrnentntteitinintitrtnaprititaiaanaiiiae 16

Int'l Bhd. Of Teamsters, Chauffeurs, Warehousemen and

Helpers Union v. Denver Milk Producers Inc.,

ee 28

Jones v. State,

101 S.W. 1012 (Tex. Crim. App. 1907).............cccccccceeeeeees 19

Kelly v. People,

Se le PE Se neneestinmeninnsentnnininnciinennited 16

Medis v. State,

SPA Mil, fe 00 17, 18

Mercer v. State,

ee 17

Oregon v. Mitchell, |

A 21

Pacific Mut. Life Ins. Co. v. Haslip,

ee CE cectnichrrnppunticaniiinetamrentitimminstinnasntinmedinin 21

People v. Deschessere,

Ps i Ge icrsitciecnnniscinsenintionengrecipmmennntal 18

People v. Hickey,

ee re Ce atrerrmcanerpniienncienntiatanienanticnnninnanets 17

People v. Williams,

SE AEE ccreiastecreiiehineennniiniegniaibiegumamnnsieidiel 15

Republic of Hawaii v. Edwards,

Be Ie OE iininiceacentnitannnnnenniatinniinniopumnimnaniinnas 19

Romer v. Evans, |

gE 23

Roe v. Wade,

te Gh)

San Antonio Independent School District v. Rodriguez,

oh Sf

Stafford 's Case,

12 Co. Rep. 36, 77 Eng. 1318 (1607)

State v. Carey,

State v. Gage,

116 N.W. 596 (lowa 1908) ............ccccceees

State v. Hull,

eee

Smith v. State,

(EE

-_-

Sweenie v. Nebraska,

80 N.W. 815 (Neb. 1899)...........ccccccceeeees

Territory v. Mahaffrey,

FF Gl)

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990)........c.ccccccececesesseseseees

U.S. v. Salerno

481 U.S. 739 (1997) ceccocessessssseeeeenneneeee

See eee eee eee ee

vii

U.S. Term Limits v. Thornton,

ee I itinctiiecrienentenemeninesticcnimnnimnueiinnatil 4

West Virginia Board of Education v. Barnette,

en I sienstessiannrenitictntnnctienoneserasnenceemnsesbiniinensinael 26

Constitutions Page

es Ca cecsencestnessnsemssnsecscscsecesenenessexmasensesneesnsensetoamnentit 2

Pe eID cetrernapnncintemnansnccmneenesemsnmsemgemmaanti passim

West Virginia Const., art- XI § 8 (1863)...........cccccccceseeeeeeeeees ae 13

Statutes Page

1 California, Statutes 1850, ch. 99, § 48 o.......cccccccccesceseeeseeeeenees 13

1 Digest of Kentucky Statute Law 36 § 8 (Littell & Swigert,

eds., Frankfort, KY:Kendall & Russell, 1822) ................cccesceseeees 13

1 Mo. Rev. Stat., ch. 50, Art. VIII, 7 (1856) ............ccccccceeceeeeeereees 14

1 The Revised Statutes of the State of North Carolina,

Passed by the General Assembly at the Session of 1836-7

CT 9,11

ee ee SEE iciccinnitentssiintntacineinesrineenntintntjeontuninnes 13,14

2 Digest of the Statute Laws of Kentucky of a Public and

Permanent Nature 1265 § 4 (Frankfort:Albert G. Hodgen,

Bap excecssensanenssenenenntennsemsnussnesmsacsscemsentuenmananastanabsmmmmsanenmmeamnniisi 13

Vill

2 Laws of New York 1777-1789, ch. XXI (21) (enacted Feb. 14,

a 9,11

2 Statutes of South Carolina (enacted Dec. 12, 1712)..........000 9,12

Bs Ge, CF Cae iecenccssticcctneneemeennermennsnneneemenmmnesstinne 7

9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI

eee 9,12

2D TRAE Vile GR. 6 CRB cccesccevecevsncesssnssmssssecscsencescentecessscensennoces 7

Acts and Laws of the State of Vt. (1779) .....csssesesseeseerseeeenesenees 14

Acts of the General Assembly, ch. DC (600) § 7 (New Jersey)

|) ee 11,12

Act of Mar. 31, 1860, 32, Pub. L. 392, in 1 Digest of Statute

Law of Pa. 1700-1903, (Purdon 1905)..........sssseserseeseeeseesseseenees 14

FT TE 13

Ape, Gish... Br. Fa, Ra. FY CB eccsseccscsssesancssscssssessssecsssesssssssesvses 13

The Code of Virginia. Second Edition, Including Lagistation to

the Year 1860 (enacted Mar. 19, 1860)...........:c0scseesereeeesereesverees 12

Conn. Gen. Stat., Tit. 122, ch. 7 (1866)........ccccssssssessesseeeeeeseesenees 13

Babs Baw, Bad., Br. THE CRAG ccnccsscssscacsssvssscssssscssccesessscsmnseesscneses 13

A Digest of the Laws of New Jersey 162 § 9 and 161 § 3

Gensel Aad. BG, CGE cececcsssnsmsennsensnsasestesesesmemeanmssesscnn 12, 13

Fla. Rev. Stat., div. 5, (passed 1868) (1892)............cccccccccsceseeeeeeees 13

ey Ces IL ti GA IO ccnceterssneiininiciniaenanntnnunionsniinernnnment 13

La. Rev. Stat., Crimes and Offences (1856) ..............cccccccceceeeeeeeees 13

Laws of the State of Delaware 1797, ch. 22a § 5 (enacted in

A I ea a eA CS 11

Laws of New Hampshire 1784-1792, ch. 42 (enacted February

iy Bee neettererancinemennninanenememnnsenrnetinaniveedioomenannee 7,9, 11,12

Laws of Ore., Crimes - Against Morality, etc., ch. 7, 655 (1874)..14

Laws of South Carolina 1868-187] 175 (enacted Feb. 4, 1869) ...12

Maryland Laws, Thomas Sim Lee, Esq., Governor, ch. LVII

| ee TREN ETE 11

Mass. Gen. Stat., Ch. 165 (1860) ..cccssssssssscssssssssssssssssssseseseesssnsveseees 14

Me. Rey. Stat., Tit. XII, ch. 160 (1840)....ccccccccssssssssssssssssseessssveeeees 13

Mich. Rev. Stat., Tit. 30, ch. 158 (1846) .....cccccscsssssssssssssseesseeesseee 14

Minn. Stat., ch. 96 (1859) ...cccscccsccssssssssssscsssssesssessessssssssseseesssnessees 14

Miss. Rev. Code, ch. 64, LIL, Art. 238 (1857) .eccsssscsssssssssssssssseeeeees 14

N.C. Rev. Code, ch. 34, 6 (1855) ..ccccccvsssssssssssssssssssssssssseseeeeeeeseseen 14

Perpetual Laws of the Commonwealth of Massachusetts, 1780-

1789, (enacted March 3, 1785) ..........cccccccssesseseeeereeneenees 7, 8,11, 12

Public Laws of New Hampshire June 1812 5-6 § 6 (enacted

es eee ccineitnciactchteietcciesinieienenciiaiaeeilristliaialaialieialh 12, 13

Public Laws of the State of Rhode Island and Providence

FPR, Cir ely OF DW itensertcsenssessenenittinninniinne. -ciibingeiaai 9,12

Public Statute Laws Of The State of Connecticut, 1808 tit.

LXVI (66), ch. 1 § 2 (enacted Dec. 1, 1642) .....cccccceseeeeees 7, 8, 11

Revised Statutes of the State of New York (enacted Dec. 10,

ae sencecececessesasunanesesesssnectassosesoscensscouseqssessooossessnecesanenetese 12

GR & Gea, SAR, Si Be CP cernretientatnteniniinitnittinniiinanaiinds 14

Statutes at Large of Pennsylvania, 1682-180] vol. 13, (1682-

1801), ch.. MDXVI (1516) (enacted Apr. 5, 1790) ........ccccecceeeees 12

Bema. Cn, GB GB, Bat, 0, GED CID cecvescesesescssenssccsnccsnssessonnstinees 14

Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860)........ 14

Secondary Authorities Page

2 The Journal of William Stephens 1743-1745 3 (E. Merton

Coulter, ed., Athens, GA: Univ. of Georgia Press, 1958-59)........ 11

3 Detailed Reports on the Salzburger Emigrants Who Settled in

Americe. Edited by Samuel Urlsperger 314 (William H.

Brown, trans., Athens,GA: Univ. of Georgia Press, 1972)............ 11

4 W. Blackstone, Commesntar tee .....cccccccccssscssccscsceseccceccsceccsssscees 6,7

The Bible, Romans 1:26-27; Romans 9 (K.J.V.) ......cccccccsceeseeeeees 7,8

——

ee eh, Seeaees TEES GIG BC Ee cccencecccnesecestocescnsccscccenenscceses 7,8

Edward Coke, The Third Part of the Institutes of the Laws of

I Se Ce cen ececnccsnesesecnnenetecreescemnemnesnseeteetimnamennenenstengnated 6

George Washington, The Writings of Washington, John C.

Fitzpatrick, ed. (Washington, D.C.: U.S. Government Printing

Office, 1932), Vol. XI, from General Orders at Valley Forge on

SEEN TEER: Sr Uti icsichincsiseninionieeeunitedhiipitannneniiedneniinibicedtitinidideninnnieiniaionel 10

James Wilson, 2 The Works of James Wilson (1967) (from

DOSRIISD GOVE ON BTS GING F708) cccxcccecenscesessssccersscensessnesesesnensncnnnes 10

John Locke, Second Treatise on Civil Government (Prometheus

SI ccncicitiemineninnieniiesieneinnnetninetamnsntiniions 25, 26

Letter from Thomas Jefferson to Edmund Pendleton dated

RET, Be Pe ecerttccengeenienitinmmnenennmenmane 8

The Journal of William Stephens 1743-1745 (E. Merton

Coulter, ed., Athens, GA: Univ. of Georgia Press, 1958-59) ........ 11

(Justice) Ruth Bader Ginsburg, Some Thoughts on Autonomy

and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375

(Justice) Ruth Bader Ginsburg, Speaking in a Judicial Voice,

BF A Fade Bs SU, BEy Re QD cccsncensenccnscvescnsceszenseneneneensvsns 27

Thomas Jefferson, Writings 756-57 (Mermill D. Peterson ed.,

Rey CORRIDOR TI. BI cccccessesncnccescecesensscnsessesescnessnsscosnces 9

IN THE

Supreme Court of the United States

No. 02-102

JOHN GEDDES LAWRENCE and TYRON GARNER,

Petitioners,

Vv.

} THE STATE OF TEXAS,

Respondent.

BRIEF AMICUS CURIAE OF THE CENTER FOR THE

ORIGINAL INTENT OF THE CONSTITUTION IN

SUPPORT OF RESPONDENT

INTEREST OF AMICUS IN THIS CASE’

The Center for the Original Intent of the Constitution (COIC)

operates under the auspices of Patrick Henry College. The COIC

contends that the interpretation of the Constitution according to the

original intent of the Founders provides the only sure safeguard for

the preservation of limited government and individual rights. The

ee ™

* All parties have consented to the submission of this brief through letters

filed with the Clerk of the Court. Amicus states that no portion of this brief was

authored by counsel for a party and that no person or entity other than amicus or

its counsel made a monetary contribution to the preparation or submission of

this brief.

COIC exists to systematically research and advocate constitutional

interpretation according to the principle of original intent.

Our Founders established a federal government with limited

and enumerated powers. The limits on federal power were

originally intended to protect both the authority of the states and

the liberties of the people.

Our interest is to preserve the blessings of liberty for ourselves

and our posterity. U.S. CONST. pmbl. We seek to do this by

holding the federal government to the terms of our original social

contract: the Constitution. Faithful adherence to the original intent

of the Founders is essential, not only because of their place in our

nation’s history, but also because of their position as the elected

representatives of the people. We preserve self-government by

elevating the written will of those elected officials who wrote and

ratified the Constitution over the opinions of unelected judges.

SUMMARY OF ARGUMENT

The central purpose of this brief is to respond to various

historical arguments raised in three Amici Curiae briefs filed on

behalf of Petitioners by the American Civil Liberties Union

(“ACLU Brief”), the Cato Institute (“Cato Brief”), and the Brief of

Professors of History (“Historians Brief”).

Contrary to the imaginative arguments contained in these

briefs, the history of this country reflects a deep conviction that

sodomy is criminally punishable conduct and not a constitutionally

protected activity. The history of both state legislation and court

decisions support the view adopted by this Court in Bowers v.

Hardwick, 478 U.S. 186 (1986), namely that neither the Bill of

Rights nor the Fourteenth Amendment limit the authority of the

states to punish homosexual sodomy.

Petitioners’ amici inaccurately suggest that there was a de facto

rule protecting consensual same-sex sodomy since the early days

of the Republic. The proof of this argument is to be found, they

contend, in a number of cases where sodomy convictions were

reversed because they had been based on nothing more than the

testimony of the accomplice—that is, the willing partner in the

alleged sexual activity. However, even a cursory review of these

cases reveals that the reason for the dismissal was found in a

simple rule of evidence that is equally applicable to cases

involving horse thieves or perjurers. Many states had the rule that

a criminal conviction could not be sustained upon the testimony of

an accomplice alone. If the testimony was corroborated, then the

conviction could stand. This was a rule of evidence governing all

crimes giving no more rise to a claim of constitutional protection

for sodomy than it does for horse theft. |

The Texas law is grounded on a moral judgment. There is

nothing irrational or arbitrary about such a judgment upon which to

base a valid Equal Protection claim. Those who wish to legalize

sodomy have been quite successful, in the years since Bowers, in

in repealing these laws. This Court should decline to

constitutionalize an issue that belongs in the state legislatures.

THE HISTORIC AUTHORITY OF THE STATES TO

CRIMINALIZE SODOMY IS WELL-SETTLED

The historical evidence clearly shows that state legislatures

have always possessed a broad authority to outlaw private,

consensual sex, and that they also prohibited same-sex sodomy

specifically since the earliest days of American history. Enactment

of the Bill of Rights in 1791 and the Fourteenth Amendment in

1868 did not alter that state legislative authority.

This Court has frequently looked to the Constitution’s “text,

history and precedent” to determine its meaning. Eldred v.

Ashcroft, __ U.S. ___, 123 §.Ct. 769, 777 (2003). As this Court

recently reiterated in Eldred v. Ashcroft, “a page of history is worth

a volume of logic.” /d., quoting New York Trust Company v.

Eisner, 256 U.S. 345, 349 (1921); see also U.S. Term Limits, Inc.

v. Thornton, 514 U.S. 779, 790 (1995) (“Against this historical

background, we viewed the Convention debates as manifesting the

Framers’ intent that the qualifications in the Constitution be fixed

and exclusive.”). .

It is a settled constitutional principle within our federal

republic that states possess general police powers. Inherent within

these powers lies the duty to regulate the “health, safety, and

morals” of their members. Barnes v. Glen Theater, 501 U.S. 560,

569 (1991) (referencing public indecency statutes which were

designed to protect morals and public order). States have used this

police power to promote marriage and direct the sexual activities

of their citizens into marriage by criminalizing a wide variety of

nonmarital sex acts, such as polygamy, rape, fornication, adultery,

prostitution and incest. While crimes such as rape and incest are

not consensual, adultery, prostitution, polygamy and fornication

are private acts between consenting adults that have been regulated

throughout our nation’s history. As we shall demonstrate, states

have possessed and properly exercised the authority to regulate

deviate sexual! conduct including sodomy at all relevant times in

our nation’s history.

The historical briefs filed by Petitioners’ Amici Curiae erect

numerous straw men by referencing Senator Joseph McCarthy,'

' Historians Brief at 16; Cato Brief at 13; ACLU Brief at 20 & n. 39.

using phrases like “same-sex couples” and “Homosexual Conduct

Law”, and generally discussing everything except the text of the

Texas statute at issue.* The Historians Brief, in particular, shines

the spotlight or Hollywood (p. 15), employment law (pp. 17, 25),

medicine (p. 21), the Senate (pp. 15-16), modern religious

denominations (pp. 21-22), child custody (p. 25), and other “recent

historical scholarship” (p. 29). We confine our analysis to the

sources this Court has consistently employed for constitutional

analysis and avoid irrelevant, albeit entertaining, issues like the

treatment of homosexuality by Hoilywood.

Five arguments from the historical briefs warrant specific

refutation: 1) the prohibition of same-sex sodomy is a creation of

the recent past with no true roots in historical or religious tradition,

2) there is no historical support for the prohibition of sodomy

because statutory language has changed; 3) case law reveals our

nation has traditionally protected sodomy between “consenting

adults acting privately”; 4) the lack of enforcement of sodomy laws

and a “national trend” of liberalization warrant this Court’s

extension of a fundamental privacy right to same-sex sodomy, and

5) the Equal Protection Clause prohibits the states from banning

same-sex sodomy.

? Histonans Brief at 11; Cato Brief at 18 (“gay [male-male] couples”);

ACLU Brief at 28.

> Historians Brief at 1; Cato Brief at 1.

* Only the Cato Brief uses language from the statute (p. 1) and cites the

statute (p. 28). Neither the text of the statute nor the citation appear in the other

cup bieoentach tested

A. Proscriptions Against Sodomy Have Deep Religious,

Political, and Legal Roots.

Sodomy was considered a heinous crime under common law. °

Blackstone’s writings are widely recognized as the best

embodiment of English common law. His Commentaries were the

standard legal textbook in the early days of our nation, and that

work was frequently cited by early American courts. In this work,

Blackstone discussed the “infamou, crime against nature” and

referenced the royal edicts prescribing its punishment.° Blackstone

* “Buggery is . . . committed by carnall knowledge against the ordinance of

the Creator and order of nature, by mankind with mankind, or with brute beast,

or by womankind with bruite beast.” Edward Coke, The Third Part of the

Institutes of the Laws of England 58-59 (1641). Thus, the term included anal

intercourse between two men. See also Stafford's Case, 12 Co. Rep. 36, 37, 77

Eng. Rep. 1318 (1607).

* Blackstone referred to the “infamous crime against nature” as “a crime not

fit to be named; ‘peccatum illud horribile, inter christianos non nominandum.’”

4 Commentaries *215-16. Under Vil, ish la i

cocane vata Henry English law punished “buggery”

Forasmuch as there is not yet sufficient and condign punishment appointed

and limited by the due course of the Laws of this Realm for the detestable

and abominable Vice of Buggery committed with mankind or beast: It may

therefore please the King's Highness with the assent of the Lords Spiritual

as they do in the cases of other felonies.

described the offense itself as one of “deeper malignity” than rape,

a heinous act “the very mention of which is a disgrace to human

nature,” and “a crime not fit to be named.” 4 W. Blackstone,

Commentaries *215. The common law of England, including its

prohibition of sodomy, provided the basis for the original state

sodomy laws.

In early America, the Bible served as the source for many

criminal laws. Early colonial statutes often quoted the Biblical

passages of Leviticus 18:22 (“Thou shalt not lie with mankind as

he lieth with womankind; it is an abomination.”) and 20:13 when

establishing prohibitions against sodomy.’ States not using the

Leviticus language referred to prohibited conduct as the. “crime

against nature.” The phrase “crime against nature,” which appears

in Blackstone’s Commentaries and numerous state statutes,

harkens back to the Apostle Paul’s condemnation in Romans 1:26-

27 of those who “change the natural use into that which is against

nature,”* as other amici have noted. Historians Brief at 5.

However, their brief incorrectly concludes that Paul did not

consider the phrase to apply to same-sex behavior. /d.

1808 tit. LXVI (66), Chap. 1 § 2, p. 295; Massachusetts, Perpetual Laws of the

Commonwealth of Massachusetts, 1780-1789, p. 187, Act of Mar. 3, 1785; New

Hampshire, of New Hampshire, 1784-1792, ch. 42, at 596 (enacted Feb. 8, 1791).

* “For this cause God gave them up unto their vile affections for even their

women did change the natural use into that which is against nature: And

likewise also the men leaving the natural use of the woman, burned im their lust

one toward another; men with men working that which is unseemly, and

receiving in themselves of their error which was meet.” Romans 1:26-27 (KJV).

Contrary to the assertion in the Historians Brief at 5, Paul’s

lack of reference to Sodom does not negate his condemnation of

what we now term sodomy.’ The Leviticus prohibition against

sodomy made no reference to the destruction of the city of Sodom,

but the command was clear nevertheless. Those who drafted early

state and colonial laws drew on this Biblical background as the

best means to express what was otherwise deemed unspeakable. '°

The Historians Brief at 4, argues that states are “strikingly

inconsistent in their definition of the acts encompassed by the term

[sodomy].” The Historians Brief at 5. It then proceeds to discuss

the variety of definitions for “unnatural acts” presented in “Latin

theology, canon law, and confessional practice.” Although the

scope of prohibited “unnatural acts” may have varied from

generation to generation, until very recent times, same-sex sodomy

has been included in virtually every state’s list of prohibited sexual

acts.

Thomas Jefferson, the primary author of the Declaration of

Independence, is one of the Founders who saw no inconsistency

between the principles of individual liberty and the state

prohibition of sodomy. In a letter to Edmund Pendleton dated

August 26, 1776, Jefferson discussed his opinions on proper

penalties for criminal activity. At the time of the Revolution, most

states punished sodomy by death.'’ According to Jefferson,

however,

* Although the Apostle Paul did not refer to Sodom and Gomorrah in

Romans 1: 26-27 (the “crime against nature” passage); later in the same epistle,

Paul referenced the towns of Sodom and Gomorrah in an obviously negative

light. See Romans 9:29.

"© See Part L.C, infra.

"' Connecticut, Public Statute Laws of the State of Connecticut, 1808 tit.

LXVI (66), ch. 1 § 2, at 295 (enacted Dec. 1, 1642); Massachusetts, Perpetual

Punishments I know are necessary, & I would provide them,

strict & inflexible, but proportioned to the crime. Death might

be inflicted for murder & perhaps for treason if you would take

out of the description of treason all crimes which are not such

in their nature. Rape, buggery &c—punish by castration. '

Although Jefferson recommended a different punishment, he still

believed that sodomy was a criminal offense.

As commander of the Continental Army in 1778, George

Washington dishonorably discharged Lieutenant Enslin for

attempting to commit sodomy with another soldier, John Monhort.

In his military order, Washington stated his deep disdain for the

crime of sodomy:

His Excellency the Commander in Chief approves the sentence

and with abhorrence and detestation of such infamous crimes

orders Lieut. Enslin to be drummed out of camp tomorrow

Laws of the Commonwealth of Massachusetts, 1780-1789, at 187 (enacted Mar.

3, 1785); New Hampshire, Laws of New Hampshire, 1784-1792, ch. 42, at 596

(enacted Feb. 8, 1791); New York, 2 Laws of New York 1777-1789, ch. XXI

(21), at 45 (enacted Feb. 14, 1787); North Carolina, 1 The Revised Statutes of

the State of North Carolina, Passed by the General Assembly at the Session of

1836-7, at 293, 297-98 (enacted Oct. 16, 1749); Rhode Island, Public Laws of

the State of Rhode Island and Providence Plantations, 1798, § 8, p. 586; South

Carolina, 2 Statutes of South Carolina at 465, 493 (enacted Dec. 12, 1712);

Virginia, 9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI, at 127

(enacted May 1776).

Thomas Jefferson, Writings 756-57 (Merrill D. Peterson ed., Library

Classics of the U.S. 1984).

morning by all the drummers and fifers in the Army never to

return. |

James Wilson, both a signer of the Declaration and the

Constitution and one of the original Justices of this Court, wrote a

commentary on American law. James Wilson, 2 The Works of

James Wilson (1967) (from lectures given in 1790 and 1791).

When the subject turned to sodomy, Wilson refused even to

discuss the details of the act: “The crime not to be named

[sodomy], I pass in a total silence.” /d. at 656.

. These examples from some of early America’s key statesmen

demonstrate the cultural atmosphere at the time of our nation’s

founding. It is clear that none of them ever envisioned a day when

the federal Constitution would be used as a tool to overturn the

decisions of elected state representatives concerning the

punishment of sodomy.

B. The History of State Legislation Reveals That Same-Sex

Sodomy Was Uniformly Condemned.

States freely prohibited same-sex sodomy throughout

America’s history, as well as other nonmarital sexual activity, such

as polygamy, adultery, fornication and prostitution. The

legislatures perceived no restraint on their power to do this by

either the Bill of Rights or the Fourteenth Amendment. Since the

passage of these Amendments, state laws have varied, but this fact

simply supports the conclusion that this area of law was entirely in

the hands of the states. No connection can be established between

either the adoption of the Bill of Rights or the Fourteenth

Amendment and alterations in sodomy statutes. An examination of

> George Washington, The Writings of Washington, John C. Fitzpatrick, ed.

(Washington, D.C.: U.S. Government Printing Office, 1932), Vol. XI, pp. 83-84,

from General Orders at Valley Forge on March 14, 1778.

the history of sodomy statutes does not lend credence to the

contention by several briefs that sodomy statutes were rarely, if

ever, enforced following the passage of the Bill of Rights. ACLU

Brief at 11, 12; Historians Brief at 7.

At the time of the passage of the Bill of Rights in 1791, ten of

the states clearly banned same-sex sodomy. At that time, twelve of

the thirteen original states prohibited sodomy either by statute or

by their adoption of the English common law.'* Two of these

prohibitions do not explicitly define the crime, but the other ten

states specifically prohibited same-sex sodomy. Five of the states

banned same-sex sodomy by statute, and the other five prohibited

same-sex sodomy because of their adoption of English common

law'* In 1776, for example, Maryland had adopted its Declaration

'* Georgia is the only state not to have clearly adopted English common law

or a sodomy statute by 1791. However, Georgia did adopt such a statute later,

showing that its Legislature did not believe the new Bill of Rights limited its

authority to criminalize sodomy. Georgia certainly punished sodomy - in 1734,

a man received 300 lashes for engaging in sodomy. 3 Detailed Reports on the

Salzburger Emigrants Who Settled in America . . . Edited by Samuel Urlsperger

314 (William H. Brown, trans., Athens, GA: Univ. of Georgia Press, 1972). In

1743, another man received the death penalty. 2 The Journal of William

Stephens 1743-1745 3 (E. Merton Coulter, ed., Athens, GA: Univ. of Georgia

Press, 1958-59).

'* Five states had statutory provisions against same-sex sodomy:

Connecticut, Public Statute Laws of the State of Connecticut, 1808 tit. LX VI

(66), ch. 1 § 2, at 295 (enacted Dec. 1, 1642); Massachusetts, Perpetual Laws of

the Commonwealth of Massachusetts, 1780-1789, at 187 (enacted Mar. 3, 1785);

New Hampshire, Laws of New Hampshire, 1784-1792, ch. 42, at 596 (enacted

Feb. 8, 1791); New York, 2 Laws of New York 1777-1789, ch. XXI (21), at 45

(enacted Feb. 14, 1787); North Carolina, 1 The Revised Statutes of the State of

North Carolina, Passed by the General Assembly at the Session of 1836-7, at

293, 297-98 (enacted Oct. 16, 1749). Five states adopted English common law

with its explicit prohibition of same-sex sodomy: Delaware, Laws of the State of

Delaware 1797, ch. 22a § 5, at 67 (enacted 1719); Maryland, Maryland Laws,

Thomas Sim Lee, Esq., Governor, ch. LVII (57), art 10; New Jersey, Acts of the

of Rights which incorporated the English common law along with

its sodomy prohibition.'® Six years prior to the passage of the Bill

of Rights, Massachusetts enacted a law that prohibited sodomy.

The application of that iaw continued after the ratification of the

Bill of Rights.'’ Earlier in the same year the Bill of Rights was

ratified, New Hampshire revised its 1679 sodomy law to a same-

sex sodomy statute which was still on the books in 1805.'*

Importantly, none of the states viewed the ratification of the Bill of

Rights as limiting or removing the power of the legislatures to ban

sodomy, including same-sex sodomy.

At the time of the Fourteenth Amendment’s ratification, eight

states specifically prohibited same-sex sodomy, including -five of

the original states which retained their earlier sodomy laws.'” At

General Assembly, ch. DC (600) § 7, at 93 (emacted Mar. 18, 1796); South

Carolina, 2 Statutes of South Carolina at 465, 493 (enacted Dec. 12, 1712);

Virginia, 9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI, at 127

(enacted May 1776). Two states had general sodomy statutes: Rhode Island,

Public Laws of the State of Rhode Island and Providence Plantations, 1798, § 8,

p. 586; and Pennsylvania, Statutes at Large of Pennsylvania, 1682-1801 vol. 13,

(1682-1801), p. 511, chap. MDXVI (1516) (enacted Apr. 5, 1790).

'® See Part 1.A. infra.

'” Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, at

187 (enacted Mar. 3, 1785).

'® Laws of New Hampshire 1784-1792, ch. 42, at 596 (enacted Feb. 8,

1791).

' Five original states retained their laws with only minor changes: New

Hampshire, Public Laws of New Hampshire June 1812 5-6 § 6 (enacted June 19,

1812); New Jersey, A Digest of the Laws of New Jersey 162 § 9 (enacted Apr.

16, 1846); New York, Revised Statutes of the State of New York, at 46 (enacted

Dec. 10, 1828); South Carolina, Laws of South Carolina 1868-1871 175

(enacted Feb. 4, 1869); Virginia, The Code of Virginia. Second Edition,

Including Legislation to the Year 1860 (enacted Mar. 19, 1860). Georgia

Comat tl

least two more state courts explicitly applied the same-sex

definition of common law sodomy.” For example, New

Hampshire’s 1812 same-sex sodomy law remained in effect after

1868, with only the penalty altered”' And New Jersey’s

prohibition of same-sex sodomy was in force both before and after

the ratification of the Fourteenth Amendment.” At least twenty-

two of the remaining states outlawed sodomy, although the

definition of the crime also included acts committed by members

of the opposite sex.”> Although sodomy was not universally

clarified its law, see note 9, infra. Two states admitted after 1791 prohibited

same-sex sodomy by adopting Virginia’s law: Kentucky, 1 Digest of Kentucky

Statute Law 36 § 8 (Littell & Swigert, eds., Frankfort, KY: Kendall & Russell,

1822) (incorporating English common law through Virginia law); 2 Digest of

the Statute Laws of Kentucky of a Public and Permanent Nature 1265 § 4

(Frankfort: Albert G. Hodgen, 1834) (lowering the penalty, but retaining the

criminal statute); West Virginia, West Virginia Const., art. XI § 8 (1863)

(incorporating English common law through Virginia law).

the male — named from the prevalence of the sin in Sodom.” Ausman v. Veal, 10

Ind. 355 (May Term 1858) (defining the term “sodomy” as used in a slander

case); Coburn v. Harvey, 18 Wis. 147 (Jan. Term 1864) (Wisconsin Supreme

Court construed the history of Wisconsin as having adopted the common law of

England, thus incorporating its same-sex sodomy law).

2! Public Laws of New Hampshire Jane 1812 5-6 § 6 (enacted June 19,

1812).

2 4 Digest of the Laws of New Jersey 162 § 9 (enacted Apr. 16, 1846).

Interestingly, New Jersey also added sodomy to the list of crimes that would

support a death sentence in a felony-murder conviction. /d. At 161 § 3.

2 Alabama, Ala. Rev. Code 3604 (1867); Arkansas, Ark. Stat., ch. 51, Art.

IV, 5 (1858); California, Statutes 1850, ch. 99, § 48, p. 99; Connecticut, Conn.

Gen. Stat., Tit. 122, ch. 7, 124 (1866); Delaware, Del. Rev. Stat., ch. 131, 7

(1893); Florida, Fla. Rev. Stat., div. 5, 2614 (passed 1868) (1892); Illinois, /I/.

Rev. Stat., div. 5, 49, 50 (1845); Louisiana, La. Rev. Stat., Crimes and Offences,

5 (1856); Maine, Me. Rev. Stat., Tit. XII, ch. 160, 4 (1840); Maryland, 1 Md.

proscribed, all thirty-one states that prohibited sodomy necessarily

included same-sex sodomy in their definitions. No state viewed the

Fourteenth Amendment as limiting their authority to enact statutes

prohibiting same-sex sodomy.

C. The Records of Appellate Courts Do Not Support the

Claim That the States Avoided Prosecuting or

Condemning Same-Sex Sodomy.

The historical briefs“ contend that shadows indicating the right

of consensual sodomy can be discovered in the fact that

enforcement efforts appear to be sparse on the record found in

appellate decisions. Several historical and logical fallacies

underlie this argument.

First, appellate case law is not the best source for accurate

social science research, concerning either current law or more

distant history. Generally, many convictions are not appealed.

Second, and more importantly, the amici making this

argument, particularly the ACLU, concede that a great majority of

the reported cases contain factual -situations that they deem

Code, Art. 30, 201 (1860); Massachusetts, Mass. Gen. Stat., ch. 165, 18 (1860);

Michigan, Mich. Rev. Stat., Tit. 30, ch. 158, 16 (1846); Minnesota, Minn. Stat.,

ch. 96, 13 (1859); Mississippi, Miss. Rev. Code, ch. 64, LII, Art. 238 (1857);

Missouri, 1 Mo. Rev. Stat., ch. 50, Art. VIII, 7 (1856); North Carolina, N.C. Rev.

Code, ch. 34, 6 (1855); Oregon, Laws of Ore., Crimes - Against Morality, etc.,

ch. 7, 655 (1874); Pennsylvania, Act of Mar. 31, 1860, 32, Pub. L. 392, in 1

Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905); Rhode Island,

R. I. Gen. Stat., ch. 232, 12 (1872); Tennessee, Tenn. Code, ch. 8, Art. 1, 4843

(1858); Texas, Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860);

Vermont, Acts and Laws of the State of Vt. (1779).

** The three amicus briefs are those by the ACLU, Cato, and the Historians.

“unclear.”** Reasoning from silence is always dangerous. This is

especially true when, as here, there is a documented revulsion

which led to a disinclination to discuss the details of these sexual

crimes.

The ACLU reads these allegedly “unclear” cases through the

skewed vision of twenty-first century Americans who are

accustomed to hearing explicit and graphic depictions of sexual

activity. Such was not the case in the early days of America,

especially if the subject was same-sex sodomy. Cultural values in

those times made people, even judges, highly reluctant to record

the particular facts of a case involving consensual sodomy.

~ The lack of explicit factual detail does not indicate any lack of

definitional clarity. Sodomy prosecutions were not unknown. In

Smith v. State, 150 Ark. 265, 234 S.W. 32, 33 (1921), the court

said in one sodomy prosecution, “The evidence is revolting in

detail, and it could therefore serve no good purpose to set forth.”

Moreover, a nineteenth century state court noted, “Every person of

ordinary intelligence understands what the crime against nature

with a human being is.””°

Thus, given the reluctance of the courts to provide details, it

cannot be said with any certainty that prosecutions for “private

sodomy” were out of the ordinary. In fact, some courts expressly

indicated that privacy was not a factor in sexual crimes.”’ Others

? Using the ACLU Brief’s calculations, approximately 73 Texas cases and

79 cases from other states were “unclear.” ACLU Brief at 14 ns. 17 & 18.

® People v. Williams, 59 Cal. 397, 398 (1881).

2” See State v. Gage, 116 N.W. 596 (Iowa 1908) (ruling that sodomy could

be established by witnesses or circumstantial evidence); Sweenie v. Nebraska,

80 N.W. 815 (Neb. 1899) (holding that adultery and fornication were crimes

equated “sodomy,” or the “crime against nature,” with crimes

where consent or privacy were irrelevant.”®

Third, amici’s assertion that societal approbation for

consensual acts of same-sex sodomy can be found in the silence of

the appellate records is simply not true. Insofar as appellate courts

are the correct measure of societal acceptance of consensual

sodomy, it is beyond reasonable dispute that such acts were

severely condemned.

In the period immediately following the adoption of the

Fourteenth Amendment, appellate court decisions continued to

echo the historical revulsion for the act of sodomy and the

understanding that consent was no defense. See, e.g.,

Commonwealth v. Poindexter, 118 S.W. 943, 943 (Ky.App. 1909)

(“The acts charged against the appellees are so disgusting that we

refrain from copying the indictment in the opinion.”); Herring v.

State, 46 S.E. 876, 881-82 (Ga. 1904.) (“After much reflection, we

are satisfied that, if the baser form of the abominable and

disgusting crime against nature—i.e., by the mouth—had prevailed

in the days of the early common law, the courts of England could

well have held that that form of the offense was included in the

current definition of the crime of sodomy.”); Kelly v. People, 61

N.E. 425, 426 (Ill. 1901) (“We did not say the definition of the

crime was ‘generic,’ but did hold that, because of the abominable

nature of the crime, it was not necessary to set forth in detail the

manner in which it was committed”’).

regardless of privacy); Hutchinson v. State, 24 Tenn. 142 (1844) (holding that

adultery is an offense no matter how privately the intercourse is carried on).

8 See, e.g,, Bartholomew v. Illinois, 104 Ill. 601 (1882) (listing sodomy

with burglary, robbery, incest, larceny, forgery, bigamy and others).

;

~ ear?

Several appellate court decisions have established that

consensual activity was clearly prosecutable, and that the existence

of consent served only to differentiate evidence requirements. In

the context of a case involving incest, the Texas Court of Appeals

quotes an authority which is applied to consensual sodomy:

But alike in adultery and, it is believed, in fornication and in

incest, where the crime consists in one's unlawful carnal

knowledge of another, it is immaterial whether the other

participated under circumstances to incur guilt or not, --just as

sodomy may be committed either with a responsible human

being, or an irresponsible one, or a beast. [I]t must be

considered that in sodomy cases, the question of consent of the

party with whom the act is committed, is not a material one.

The crime is complete in either case if the act be committed.

Mercer v. State, 17 Tex. Ct. App. 452, 464 (1885) (internal

quotation marks omitted).

In Medis v. State, 11 S.W. 112 (Tex.Ct.App. 1889), the Texas

appellate court discussed the issue of consent, clarifying that the

testimony of a third party would be required if both parties

consented to the act. In People v. Hickey, 41 P. 1027 (Cal. 1897)

the California appellate court ruled that “it was not an element in

the offense where the act is done or attempted with the consent of

the other party.” 41 P. at 1028. Consent provided no immunity in a

sodomy prosecution.

In Honselman v. People, 48 N.E. 304 (Ill. 1897) the Illinois

court ruled that uncorroborated evidence alone, given by a

consenting partner, was sufficient to convict both parties of

sodomy. Citing Gray v. People, 26 Ill. 344 (1861), concerning the

difficulty of proof, the Illinois court stated, “The offense should be

clearly proved, but it is one committed in secrecy and ordinarily

not capable of being otherwise proved than by the testimony of a

participant, and the law is, that the uncorroborated testimony of an

accomplice is legally sufficient to sustain a conviction.”

Honselman, 48 N.E. at 305. Unlike several other state courts, the

Illinois court ruled that corroborating evidence submitted by a third

party was not required for the conviction of private, consensual

sodomy.

Finally, in State v. Gage, 116 N.W. 596 (Iowa 1908), the Iowa

court ruled that either third-party testimony or circumstantial

evidence of penetration would be sufficient for conviction in a

sodomy case. Once again, we see an example of state courts

applying sodomy statutes to private, consensual activity. Although

some states had higher evidence requirements for conviction, all

states cited above clearly held consensual sodomy to be criminally

actionable.

D. Amici for Petitioners Confuse a General Rule of

Evidence with a Constitutional Right.

The Cato Brief places significant weight on a rule of evidence

which supposedly created a de facto “immunity for sodomy within

the home between consenting adults.” Cato Brief at 11. Some

states have or had a general rule of evidence that the

uncorroborated testimony of one accomplice was not sufficient

evidence for conviction.” This rule applied to crimes generally,

not just sodomy or other sexual crimes where notions of privacy

See, e.g., State v. Carey, 122 P. 868 (Nev. 1912) (noting the requirement

that an accomplice must be corroborated by other evidence), People v.

Deschessere, 74 N. Y. Supp. 761 (1902) (same); People v. Hickey, 41 P. 1027

(Cal. 1895) (same); Medis v. State, 11 S.W. 112 (Tex.Ct.App. 1889) (same).

might arguably play some role.*® From this rule, the Cato Brief

illogically derives the principle that any action between consenting

adults within the home was immune from prosecution merely

because the testimony of one partner was insufficient evidence.

Even if this were an accurate statement, it would be improper

to infer a quasi-constitutional rule of privacy from a mere rule of

evidence that was intended to ensure the truth of courtroom

testimony, see e.g. Hicks v. State, 156 Tenn. 359 (1912)

(explaining accomplice rules). There are many cases in which

convictions were upheld when there was evidence beyond that

supplied by the accomplice.”

The requirement of corroborating testimony was not a rule of

common law. Several state courts explicitly refused to follow the

rule ir absence of a statutory provision. See, e.g., Republic of

Hawaii v. Edwards, 11 Haw. 571 (1898) (“no statute in Hawaii

requires that on a charge of sodomy, the testimony of an

accomplice should be corroborated by other evidence”);

Honselman v. Illinois, 48 N.E. 304 (Ill. 1897) (“the law is that the

uncorroborated testimony of an accomplice is legally sufficient to

sustain a conviction”).

* See, e.g., State v. Hull, 26 lowa 292 (1868) (rule requiring corroboration

for the testimony of accomplice in a case involving two horse thieves);

Anderson v. State, 20 Tex.App. 312 (1886) (rule applied in a perjury case).

*" See, e.g, Jones v. State, 101 S.W. 1012 (Tex. Crim App. 1907)

(upholding conviction on the testimony of only one witness); Territory v.

Mahaffrey, 3 Mont. 112 (1878) (convicting upon corroborating testimony);

Commonwealth v. Snow, 111 Mass. 411 (1873) (same).

Moreover, none of the cases cited by the amici regarded

consent as an affirmative defense to the charge.*” The Cato Brief’s

“consent” argument deduces incorrectly that the primary function

of the sodomy laws prior to this century was “filling a regulatory -

gap as regards non-consensual sexual activity.” Cato Brief at 11.

Carrying this argument to its logical extreme, their rationale would

lead to the conclusion that the Framers also intended the Bill of

Rights and the Fourteenth Amendment to prohibit laws against

fornication or adultery because those laws forbid private,

consensual sex. This is ludicrous. No objective reader of

fornication or adultery statutes can conclude that “consent” was a

mitigating factor ~ defense for the crime. Rape statutes provided

sufficient grounds for the prosecution of “non-consensual” sex.

The evidence indicates that adultery, fornication, and sodomy

Statutes served the additional purpose of preserving the moral and

legal standard that sex was reserved for traditional marriage.

E. Nothing in the History or Text of the Equal Protection

Clause Supports a Different Result from This Court’s

Due Process Clause Decision in Bowers v. Hardwick.

A new law is usually intended to change an old law. This is

just as true with regard to constitutional amendments as it is with

ordinary legislation, with one critical exception. The Bill of Rights

was designed to preserve the rights which the founding generation

considered to be their natural inheritance.

Thus, the Framers of the Bill of Rights did not purport to

“create” rights. “Rather, they designed the Bill of Rights to

prohibit our Government from infringing rights and liberties

*? “Tt must be considered that in sodomy cases, the question of consent of

the part with whom the act is committed, is not a material one. The crime is

complete in either case if the act be committed. . . .” Foster v. State, 1 Ohio C.D.

261, 1886 WL 2557 at *4 (Ohio Cir. Ct. 1886).

presumed to be pre-existing.” United States v. Verdugo-Urquidez,

494 U.S. 259, 288 (1990) (Brennan, J., dissenting). “The law is

perfectly well settled that the first ten amendments to the

Constitution, commonly known as the Bill of Rights, were not

intended to lay down any novel principles of government, but

simply to embody certain guaranties and immunities which we had

inherited from our English ancestors.” T. Cooley, Constitutional

Limitations, ch. X (4th ed. 1878), quoted in Pacific Mut. Life Ins.

Co. v. Haslip, 499 U.S. 1, 34 (1991) (Scalia, J., concurring).

However, the Fourteenth Amendment, like the Thirteenth and

Fifteenth, was intended to change the law. The core purpose of the

Fourteenth Amendment was to overturn those state laws that failed

to guarantee equal protection and due process to biack Americans.

This Court’s “suspect classification” doctrine closely approximates

this intention. With regard to race, all laws existing at the time of

the ratification of the Amendment should have been considered

presumptively unconstitutional. While this Court has built a

complex system of suspect, intermediate, and rational

classifications for Equal Protection analysis, it has never held that

the Equal Protection Clause was designed to eliminate all state

laws which make distinctions between people and their conduct.

The Fourteenth Amendment was surely not intended to make

every discrimination between groups of people a constitutional

denial of equal protection. Nor was the Enforcement Clause of

the Fourteenth Amendment intended to permit Congress to

prohibit every discrimination between groups of people. On the

other hand, the Civil War Amendments were unquestionably

designed to condemn and forbid every distinction, however

trifling, on account of race.

Oregon v. Mitchell, 400 U.S. 112, 127 (1970)(opinion of Black,

J). a

This Court has been reluctant to expand the “suspect

classification” to include every group seeking the protection of this

constitutional status. See, e.g., San Antonio Independent School

District v. Rodriguez, 411 U.S. 1 (1973) (wealth is not a suspect

class); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432

(1985) (mental retardation is not a “quasi-suspect” classification).

Lawyers lack no diligence in mining the phrases employed by this

Court over the decades when endeavoring to argue that their clients

should be included in this or another “protected” category. It is the

words and phrases of the Framers of the Fourteenth Amendment

that must be dispositive if the principle of republicanism—vwe elect

the rulers who make the law—is to retain any meaning.

The essence of the Equal Protection Clause prohibits arbitrary

treatment of people. See, e.g., Central State University v. American

Ass'n of University Professors, 526 U.S. 124, 129 (1999)

(Ginsburg, J., concurring). Racial discrimination is presumptively

arbitrary. But any arbitrary, irrational treatment of people is

prohibited. The debate about classifications and levels of scrutiny

at times obscures reality; it is only arbitrariness that can possibly

explain the outcomes of this Court’s Equal Protection

jurisprudence. Distinctions based on time-honored standards of law

should be accorded some deference, but in the end arbitrary

classifications cannot stand.

Texas outlawed same-sex sodomy because it views the practice

as immoral. Petitioners’ Opening Brief at 37. As this brief fully

documents, this position is absolutely consistent with the time-

honored traditions of this nation. Unless this Court is prepared to

say that the moral traditions of this nation and western civilization

are categorically arbitrary, it must affirm the decision below.

This Court has already settled this crucial question in Bowers.

“The law, however, is constantly based on notions of morality, and

if all laws representing essentially moral choices are to be

invalidated under the Due Process Clause, the courts will be very

busy indeed.” 478 U.S. 186, 196 (1986). It cannot be seriously

contended that there is a difference between the Due Process

Clause and the Equal Protection Clause insofar as these clauses

affect the ability of a state to base its law on moral judgments.

Romer v. Evans, 517 U.S. 620 (1996), has done nothing to

change this principle. Romer is based on the principle that no

group should be limited in its ability to employ the political

process for its own protection. Romer is fundamentally about

political rights, not homosexual rights. States are still free to enact

whatever moral judgments they wish regarding homosexual

behavior. The briefs supporting Petitioners demonstrate only that

those who support the legalization of sodomy have been very

successful in moving the legislatures to adopt their moral views.

Moral judgments underlie every law. Disputes about moral

choices belong to the legislative arena where the views of the

people ultimately have control. This Court simply does not have

the constitutional mandate to substitute its judgment for that of the

elected representatives of the people on matters that boil down to

nothing more than moral judgments.

THIS COURT SHOULD FOLLOW THE ORIGINAL

INTENT OF THE FRAMERS AND DECLINE

PETITIONERS’ INVITATION TO LEGISLATE

FROM THE BENCH

A. In a Republic, Laws Are Created Only by Legislatures.

Petitioners and their amici have urged this Court to radically

rewnte the criminal laws of this nation. Sodomy once was

considered a crime so unspeakable that courts declined to describe

the behavior in any detail.*? Now this very reluctance caused by

moral revulsion is asserted as a basis for the anti-historical

contention that the Framers of the Constitution intended to protect

consensual sodomy.

The briefs filed by those who support the legalization of same-

sex sodomy demonstrate that they have made significant progress

toward their political goals. Far fewer states punish sodomy now

than at earlier times in our nation’s history.** However, unsatisfied

with the pace of change, these political advocates ask this Court to

finish the process in one swift judicial act. Their argument is

cloaked in supposed historical analysis and constitutional

_™ See, eg., Honselman v. Illinois, 48 N.E. 304, 305 (Ill. 1897) (“The

existence of such an offense is a disgrace to human nature. The legislature has

not seen fit to define it further than by the general term, and the records of the

courts need not be defiled with the details of different acts which may go to

constitute it.”); Cross v. State, 17 Tex. Ct. App. 476, 1885 WL 6739 at *2

(1885) (“the crime of sodomy is too well known to be misunderstood, and too

disgusting to be defined further than by merely naming it. I think it unnecessary

therefore, to lay the carnaliter cognovit in the indictment.”).

* Cato Brief at 17, 26, Historians Brief at 29; ACLU Brief at 21-24.

reasoning. In reality, these submissions contain wishful thinking

presented as accurate history, and political rhetoric thinly disguised

as constitutional analysis.

Elected officials in Congress proposed the Fourteenth

Amendment. Elected officials in the states ratified the Fourteenth

Amendment. If the meaning of the language of the Fourteenth

Amendment is twisted from that intended by those who drafted and

ratified it, we will witness not an act of social progress but one of

judicial tyranny.

John Locke wrote:

Nor can any edict of anybody else, in what form soever

conceived, or by what power soever backed, have the force and

obligation of a law which has not its sanction from that

legislative which the public has chosen and appointed; for

without this the law could not have that which is absolutely

necessary to its being a law, the consent of the society, over

whom nobody can have a power to make laws but by their own

consent and by authority received from them; and therefore all

the obedience, which by the most solemn ties any one can be

obliged to pay, ultimately terminates in this supreme power,

and is directed by those laws which it enacts.*°

Locke quotes Richard Hooker, Of the Laws of Ecclesiastical

Polity (1593), to demonstrate the tyrannical nature of laws created

by any other process.

The lawful power of making laws to command whole politic

societies of men, belonging so properly unto the same entire

societies, that for any prince or potentate, of what kind soever

35 John Locke, Second Treatise on Civil Government 74 (Prometheus Books

1986) (1690).

upon earth, to exercise the same of himself, and not by express

commission immediately and personally received from God, or

else by authority derived at the first from their consent, upon

whose persons they impose laws, it is no better than mere

tyranny. Laws they are not, therefore, which public

approbation hath not made so.*°

Locke understood the important role of republican

governmental principles for the preservation of liberty. Those who

fancy the term “civil libertarian,” and yet seck to change the law

through the judiciary, seek not liberty, but an act that is “no better

than mere tyranny.”

It is not the role of this Court to inquire into the social policy

ramifications of anti-sodomy laws. A ruling based on an

examination of such matters would be exactly the sort of judicial

legislation that this Court condemned in West Virginia Board of

Education v. Barnette, 319 U.S. 624, 650 (1943). In that case, this

Court held: “The framers of the Constitution denied such

legislative powers to the federal judiciary . . . [and] did not grant to

this Court supervision over legislation.” Rather, this Court should

consider only those arguments founded on analysis which is truly

legal in character.

B. Legislative Trends Do Not Create New Constitutional

Rights.

Each of the historical briefs filed in this case notes a “national

trend” toward repealing or altering sodomy statutes. State

legislatures have indeed made changes to sodomy laws,

broadening, narrowing, or abolishing them. However, it does not

follow that the alteration or repeal of sodomy statutes in some

6 Id.

states enshrines sodomy as a fundamental right guaranteed by the

Bill of Rights and the Fourteenth Amendment. The fact that some

states have changed or repealed their sodomy laws provides no

support for the thinly veiled request for this Court to act as a

“super-legislature.””’ Defining the criminality of certain forms of

sexual conduct, such as same-sex sodomy, is a policy issue that has

historically and properly been left to the state legislatures.

Prior to her appointment to this Court, Justice Ginsburg

criticized the Supreme Court for imposing the broad holding of

Roe v. Wade, 410 U.S. 113 (1973), on the states. She noted “in my

judgment, Roe ventured too far in the change it ordered.” Ruth

Bader Ginsburg, Some Thoughts on Autonomy and Equality in

Relation to Roe v. Wade, 63 N.C. L. REV. 375, 381 (1985). She

further observed that the national trend “toward liberalization of

abortion statutes” (also noted by this Court in Roe) quickly ended

when the Court greatly restricted the states’ authority to regulate

abortion. Jd. at 379-80; see also Ruth Bader Ginsburg, Speaking in

a Judicial Voice, 67 N.Y.U. L. REV. 1185, 1205 (1992) (“Roe v.

Wade . . . invited no dialogue with legislators. Instead, it seemed

entirely to remove the ball from the legislators’ court.

In 1973, when Roe was issued, abortion law was in a state of

change across the nation.”).

As in Roe, this Court has received a request to constitutionalize

a divisive and highly visible political issue. Public respect for the

rule of law is diminished whenever unelected officials remove the

ability of the public to settle moral and political issues in the

legislative chamber. Contrast the public reaction to Bowers v.

*” See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (“Our

recent decisions make plain that we do not sit as a super-legislature to weigh the

wisdom of iegislation nor to decide whether the policy which it expresses

offends the public welfare.”).

Hardwick, 478 U.S. 186 (1986), with that to Roe. Those

disappointed with the Bowers decision have successfully petitioned

many legislative bodies for change. Opponents of Roe march on

this Court since there is no other realistic venue for relief.

This Court should stay out of this public policy dispute and leave it

to the state legislatures to decide.

38 4 dditionally, this Court should dismiss the cert petition as improvidently

granted due to the deficient record. This case does not provide the facts for this

Court to address the significant issues raised in the Questions Presented

involving the constitutionality of private sex acts engaged in by consenting

adults. The record in this case only shows that the Petitioners were adult males

who engaged in “anal sodomy.” Pet. App. 129a. & 14a.

Under the record of this case, the factual possibilities exist that one of

Petitioners lacked capacity to consent, that the sodomy was forced, or that

Petitioners engaged in commercial prostitution, or performed their act in public

view or before an audience. Petitioners have not presented evidence refuting

those factual alternatives. It is Petitioners’ burden to prove that these facts do

not exist in a case, in order to give this Court a clean vehicle to rule on the

substantive legal questions. At best, all Petitioners can do is make a facial

challenge to the Texas law, which means this Court should apply the standard

articulated in U.S. v. Salerno, 481 U.S. 739, 745 (1987) (a party seeking facial

invalidation of a statute “must establish that no set of circumstances exists under

which the Act would be valid”).

This Court should not reexamine a major Constitutional question, and also

overturn an earlier decision when it is unclear that the facts of this case present

an opportunity for this Court to rule on such a question Jnt'l Bhd. of Teamsters,

Chauffeurs, Warehousemen and Helpers Unions v. Denver Milk Producers, Inc.,

334 U.S. 809 (1948) (per curiam) (“Because of the inadequacy of the record, we

decline to decide the Constitutional issues involved.”).

DEON

CONCLUSION

The Texas law prohibits conduct-sodomy between individuals

of the same gender—as many other states and their courts have

historically done. There is no fundamental right “deeply rooted in

this Nation’s history and traditions” to engage in same-sex

sodomy. Bowers, 478 U.S. at 192-193. The Texas Court of

Appeals’ decision should be affirmed.

Respectfully submitted,

MICHAEL P. FARRIS* JORDAN W. LORENCE

CENTER FOR THE ORIGINAL JOSHUA W. CARDEN

INTENT OF THE CONSTITUTION ALLIANCE DEFENSE FUND

P.O. Box 1776 15333 N. Pima Rd., Ste. 165

Purcellville, VA 20134 Scottsdale, AZ 85260

(540) 338-1776 (480) 444-0020

*COUNSEL OF RECORD

February 18, 2003

Our thanks to Matthew L. Brownfield, Jeffrey C. Cavanaugh, Daniel

S. Chapin, Rachel A. Denlinger, David A. Handermann, Rachel J.

Kozlowski, Zachary J. Martin, Dan O’Brien, Kyle D. Pousson, David

J. Shaw, Stephen L. Shipp, Sumi Thomas, Joel Tetreau, and Galen N.

Thorp for their assistance on this brief.

APPENDIX

A-l

APPENDIX 1 ©

State Sodomy Laws in 1791

Connecticut

That if any man shall lie with mankind, as he lieth with

womankind, both of them have committed abomination, they

both shall be put to death; except it shall appear that one of the

parties was forced, or under fifteen years of age; in which case

the party forced, or under the age aforesaid, shall not be liable

to suffer the said punishment.

The Public Statute Laws of the State of Connecticut, 1808 title

LXVI (66), ch. 1, § 2, p. 295.

Delaware

That if any person or persons shall commit sodomy, or

buggery, or rape or robbery, . . . he or they so offending, or

committing any of the said crimes within this government, their

counsellors, aiders, comforters and abettors, being convicted

thereof, as above-said, shall suffer as felons, according to the

tenor, direction, form and effect of the several statutes in such

cases respectively made and provided in Great Britain; any act

or law of this government to the contrary in any wise not

withstanding.

Laws of the State of Delaware, 1797, ch. 22a, § 5, p. 67 (passed in

1719).

A-2

Maryland

Maryland had no sodomy statute in 1791, but the Declaration

of Rights of Maryland, section 3, a portion of the Maryland State

Constitution passed in 1776 said “that the inhabitants of Maryland

are entitled to the common law of England. . . .” Sodomy was a

crime under the common law (see section on North Carolina).

Every person duly convicted of the crime of sodomy, shall be

sentenced to undergo a similar confinement for a period not

less than one year nor more than ten years, under the same

conditions as are herein after directed.

Maryland Laws, ch.. CXXXVIII (138), art. IV, § 8.

Massachusetts

That if any man shall lay with mankind as he layeth with a

woman, or any man or woman shall have carnal copulation

with any beast or brute creature, and be thereof duly convicted,

the offender, in either of those cases, shall be adjudged guilty

of felony, shall be sentenced to suffer the pains of death, and

the beast shall be slain, and every part thereof burned. And be

it further enacted by the authority aforesaid, that such order and

form of process shall be had and used, in trial of such

offenders, and such judgment given, and execution done, upon

the offender, as in cases of murder.

Perpetual Laws of the Commonwealth of Massachusetts, 1780-

1789, p. 187, Act of March 3, 1785.

New Hampshire

That if any man shall carnally lie with a man, as a man carnally

lieth with a woman, or if any man or woman shall have carnal

copulation with any beast, or brute creature, and be thereof

convicted, the offender in either of those cases before

mentioned, shall suffer death, and the beast shall be slain and

burned.

Laws of New Hampshire, 1805, p. 267 (passed February 8, 1791).

New Jersey

That sodomy, or the infamous crime against nature, committed

with mankind or beast, shall be adjudged a high crime and

misdemeanor, and be punished by fine and solitary

imprisonment at hard labour, for any term not exceeding

twenty-one years.

Acts of the General Assembly, March 18, 1796, ch. DC, § 7, p. 93.

New York

That the detestable and abominable vice of buggery,

committed with mankind, or beast, shall be from henceforth

adjudged felony; and such order and form of process therein

shall be used against the offenders, as in cases of felony at the

common law; and that every person being thereof convicted,

by verdict, confession, or outlawry, shall be hanged by the

neck, until he or she shall be dead.

Laws of New York, ch.. 21, p. 391 (passed February 14, 1787).

A-4

North Carolina

When the Bill of Rights was ratified in 1791, North Carolina

had adopted the English common law statute of Henry VIII which

was the basis for the common law’s crime of buggery (see section

on South Carolina):

A-5

inflicted; that is to say, every person convicted of robbery,

burglary, sodomy or buggery or as accessory thereto before the

fact shall forfeit to the commonwealth all and singular the

lands and tenements, goods and chattels whereof he or she was

seized or possessed at the time the crime was committed and at

any time afterwards until conviction and be sentenced to

Forasmuch as there is not yet sufficient and condign

punishment appointed and limited by the due course of the

Laws of this Realm, for the detestable and abominable vice of

Buggery committed with mankind or beast: It may therefore

please the King’s Highness, with the assent of his Lords

spiritual and temporal, and the Commons of this present

Parliament assembled . . . That the same offense be from

henceforth adjudged Felony . . . And that the offenders being

hereof convict . . . shall suffer such pains of death and losses

and penalties of their goods, chattels, debts, lands, tenements

and hereditaments, as Felons be accustomed to doe [sic]

according to the order of the Common-laws of this Realm.

And that no person offending in any such offense, shall be

admitted to his Clergy, And that Justices of Peace shall have

power and authority, within the limits of their Commissions

and Jurisdictions, to hear and determine the said offense, as

they do use to doe [sic] in cases of other Felonies .. .

25 Henry VIII, ch. 6.

Pennsylvania

That the pains and penalties hereinafter mentioned shall be

inflicted upon the several offenders who shall from and after

the passing of this act commit and be legally convicted of any

of the offences hereinafter enumerated and specified, in lieu of

the pains and penalties which by law have been heretofore

undergo a servitude of any term or time at the discretion of the

court passing the sentence not exceeding ten years in the public

gaol or house of correction of the county or city in which the

offence shall have been committed and be kept at such labor

and fed and clothed in such manner as is herein after directed.

The Statutes at Large of Pennsylvania, 1682-1801, vol. 13,.(1682-

1801), p. 511, ch. MDXVI (1516).

Rhode Island

That every person who shall be convicted of sodomy, or of

being accessary [sic] thereto before the fact, shall, for the first

offence [sic], be carried to the gallows in a cart, and set upon

said gallows, for a space of time not exceeding four hours, and

thence to the common gaol, there to be confined for a term not

exceeding three years, and shall be grieviously fined at the

direction of the Court; and for the second offence [sic] shall

suffer death.

The Public Laws of the State of Rhode Island and Providence

Plantations, 1798, § 8, p. 586, “An Act to Reform the Penal

Laws.”

South Carolina

Forasmuch as there is not yet sufficient and condign [sic]

Punishment appointed and limited by the due Course of the

A-6

Laws of this Realm, for the detestable and abominable Vice of

Buggery committed with the Mankind or Beast: (2) It may

therefore be enacted, That the same offence be from henceforth

adjudged felony, and such Order and Form of Process therein

to be used against the Offenders as in Cases of Felony at the

Common Law; (3) and that the Offenders being hereof convict

[sic] by Verdict, Confession, or Outlawry, shall suffer such

Pains of Death, and Losses and Penalties of the Goods,

Chattels, Debts, Lands, Tenements and Hereditaments, as

Felons be accustomed to do, according to the Order of the

Common Laws of this Realm; (4) and that no Person offending

in any such Offence, shall be admitted to his Clergy; (5) and

that Justices of Peace shall have Power and Authority,. within

the Limits of their Commissions and Jurisdictions, to hear and

determine the said Offence, as they do use to do in Case of

other Felonies.

A-7

and made divers evil disposed Persons have been the more

bold to commit the said most horrible and detestable Vice of

Buggery aforesaid, to the high Displeasure of Almighty God.

II. Be it enacted, That the said Statute before mentioned, made

in the 25th Year of the said late King Henry the 8th, for the

Punishment of the said detestable Vice of Buggery, and every

Branch, Clause, Article and Sentence therein contained, shall

from and after the 1st Day of June next coming be revived, and

from thenceforce shall stand, remain, and be in full Force,

Strength and Effect for every, in such Manner, Form and

Condition, as the same Statue was at the Day of the Death of

the said late King Henry the Eighth, the said Statute of Repeal

made in the said Ist Year of the said late Queen Mary or any

Words general or special therein contained, or any other Act or

Acts, Thing or Things, to the contrary notwithstanding.

Public Laws of the State of South Carolina, 1790, p. 49. Public Laws of the State of South Carolina, 1790, p. 65.

The English common law statute banning sodomy issued by Henry Virginia

VIII reads:

Before 1792, Virginia relied on the English common law which

Where in the Parliament begun at London the 3d Day of made sodomy a punishable crime (see Hennings Statutes of

November in the 21st Years of the late King of most famous Virginia, vol. 9, 1775-1778, ch. V, § VI, p. 127). Virginia passed a

Memory, King Henry the Eighth, and after by Prorogation specific sodomy ban in i 792:

holden at Westminster in the 25th Year of the Reign of said |

~ late King, there was one Act and Statute made, entitled, An Act That if any do commit the detestable and abominable vice of

for the Punishment of the Vice of Buggery, whereby the said buggery, with man or beast, he or she so offending, shall be

detestable Vice was made Felony, as in the said Estatute [sic] adjudged a felon, and shall suffer death, as in case of felony,

more and large it doth and may appear: (2) Forasmuch as the without the benefit of clergy.

said Statute concerning the Punishment of the said Crime and

Offence of Buggery standeth at this present repealed and void Virginia Statutes at Large, 1835, p. 113.

by Virtue of the Statute of Repeal made in the 1st Year of the

Reign of the late Queen Mary: Sithence which Repeal so had

A-8

State Sodomy Laws in 1868

Alabama

‘Crimes against nature, either with mankind or any beast, are

punishable by imprisonment in the penitentiary not less than

two or more than ten years.

Alabama Code, 1852, § 3235, p. 583.

Arkansas

Every person convicted of sodomy, or buggery, shall be

imprisoned in said jail and penitentiary house, for a period not

less than five, nor more than 21 years.

Statutes of Arkansas, 1858, ch. 51, Art. IV, § 5, p. 335 (passed in

1838).

California

The infamous crime against nature, either with man or beast,

shall subject the offender to be punished by imprisonment in

the State Prison for a term not less than five years, and which

may extend to life.

Statutes 1850, ch. 99, § 48, p. 99.

Florida

Whoever commits the abominable and detestable crime against

nature, either with mankind or with any beast, shall be

punished by imprisonment in the State penitentiary not

exceeding twenty years.

Florida Laws 1868, ch. 1637, Subchap. 8, § 17, p. 98.

Georgia

Sodomy and bestiality shall be punished by hard labour in the

penitentiary, during the natural life or lives of person or

persons convicted of these detestable crimes.

Lamar'’s of Georgia, 1810-1819, § 35, p. 571.

Illinois

The infamous crime against nature, either with man or beast,

shall subject the offender to be punished by imprisonment in

the penitentiary for a term not less than one year, and may

extend to life.

Revised Statutes of 1844-45, ch. 30, Div. 5, § 50, p. 158.

Kansas

Every person who shall be convicted of the detestable and

abominable crime against nature, committed with mankind or

with beast, shall be punished by confinement and hard labor

not exceeding ter years.

Art. 7, ch. 31, § 249, General Statutes of 1868 (found at vol. 2, p.

340, Statutes of Kansas, 1897).

A-10

Kentucky

Whoever shall be convicted of the crime of sodomy or buggery

with man or beast, he shall be confined in the penitentiary not

less than two nor more than five years.

Revised Statutes of 1852, ch. 28, Art. IV, § 11, p. 381.

Louisiana

Whoever shall be convicted of the detestable and abominable

crime against nature, committed with mankind or beast, shall

suffer imprisonment at hard labor for life. .

Revised Statutes of Louisiana, 1856, “Crimes and Offences,” § 5,

p. 136.

Maine

Whoever commits the crime against nature, with mankind or

with a beast, shall be punished by imprisonment not less than

one, nor more than ten years.

Revised Statutes of 1857, ch. 124, § 3, p. 684.

Michigan

Every person who shall commit the abominable and detestable

crime against nature, either with mankind or with any beast,

shall be punished by imprisonment in the State prison not more

than fifteen years.

Compiled Laws of 1857, § 5871, p. 1543.

A-11

Minnesota

Every person who shall commit sodomy, or the crime against

nature, either with mankind or any beast, shall be punished by

imprisonment in the territorial [sic] prison, not more than five

years, nor less than one year.

Minnesota Statutes 1858, ch. 96, § 13, p. 729.

Mississippi

Every person who shall be convicted of the detestable and

abominable crime against nature, committed with mankind or

with a beast, shall be punished by imprisonment in the

penitentiary for a term not more than ten years.

Laws of 1857, ch. 64, Art. 238, § 52,p. 611. —_

Missouri

Every person who shall be convicted of the detestable and

abominable crime against nature, committed with mankind or

with beast, shall be punished by imprisonment in the

penitentiary not less than ten years.

Revised Statutes 1855, ch. 50, § 7, p. 624.

Nevada

The infamous crime against nature, either with man or beast,

shall subject the offender to be punished by imprisonment in

the state prison for a term not less than five years and which

may extend to life.

A-12

The Compiled Laws of Nevada in Force from 1861-1900, § 4699,

sec. 45, p. 915 (approved November 26, 1861).

Oregon

If any person shall commit sodomy or the crime against nature

either with mankind or beast, such person, upon conviction

thereof, shall be punished by imprisonment in the penitentiary

not less than one year, nor more than five years.

Oregon Organic and General Laws, 1845-64, ch. 48, § 639, p. 560

(passed October 19, 1864).

Tennessee

Crimes against nature, either with mankind or any beast, are

punishable by imprisonment in the penitentiary not less than

five nor more than fifteen years.

Code of Tennessee, 1858, § 4843, p. 868.

Texas

If any person shall commit with mankind or beast the

abominable and detestable crime against nature, he shall be

deemed guilty of sodomy, and on conviction thereof, he shall

be punished by confinement in the penitentiary for not less

than five nor more than fifteen years.

Penal Code of the State of Texas, 1879, art. 342, p. 46 (passed on

February 11, 1860).

A-13

Vermont

Vermont had no criminal sodomy statute until 1937, although

Vermont courts recognized sodomy as a crime at common law,

which could be punished. See State v. La Forrest, 71 Vt. 311, 45

A. 225 (1899). This is the text of the Vermont criminal sodomy

statute passed in 1937:

A person participating in the act of copulating the mouth of

one person with the sexual organ of another shall be

imprisoned in the state prison not less than one year nor more

than five years.

Vermont Statutes of 1947, ch. 370, § 8480, p. 1593.

West Virginia

If any person shall commit the crime of buggery, either with

mankind or with any brute animal, he shall be confined in the

penitentiary not less than one nor more than five years.

Code of West Virginia—1870, ch. 149, § 12, p. 694 (passed in

1868).

Wisconsin

Every person who shall commit sodomy, or the crime against

nature, either with mankind or beast, shall be punished by

imprisonment in the state prison, not more than five years nor

less than one year.

Revised Statutes of Wisconsin, 1858, ch. 170, § 15, p. 975.

A-14

After 1868

Indiana

Indiana did not have a criminal sodomy law at the time of the

passage of the 14" Amendment, but passed the following law in

1881:

Whoever commits the abominable and detestable crime against

nature, by having carnal knowledge of a man or beast, or who,

being a male, carnally knows any man or any woman through

the anus, and whoever entices, allures, instigates, or aids any

person under the age of twenty-one years to commit

masturbation or self-pollution--is guilty of sodomy, and, upon

conviction thereof, shall be imprisoned in the State prison not

more than fourteen years nor less than two years.

Revised Statutes of Indiana—1897, ch. 5, art. 5, § 2118, p. 338.

Iowa

Iowa did not have a criminal sodomy law at the time of passage of

the 14" Amendment, but later passed the following law in 1892:

Any person who shall commit sodomy, shall be imprisoned in

the penitentiary not more than ten years nor less than one year.

Annotated Code of Iowa, 1897, § 4937, p. 941, passed 24 General

Assembly, ch. 39.

A-15

Ohio

Ohio did not have a criminal sodomy law in 1868, at the time of

ratification of the Fourteenth Amendment. The Ohio Legislature

later passed a criminal sodomy statute in 1885:

Sec. 1 That whoever shall have carnal copulation against

nature, with another human being or with a beast, shall be

deemed guilty of sodomy, and shall, on conviction thereof, be

imprisoned in the penitentiary not more than twenty years.

Ohio Laws 1885, p. 241 (passed May 4, 1885).

Nebraska

Nebraska had a criminal sodomy law while it was a territory, but

not for a few years after it became a state. The Statutes of the

Nebraska Terriwry of 1866 had a criminal sodomy statute at § 47,

“Offenses Against Persons,” p. 599. Nebraska had no criminal

sodomy law at the time the states ratified the Fourteenth

Amendment in 1868. The Nebraska State Legislature later passed

such a law in 1875, using the exact language of the earlier

territorial sodomy law.

That infamous crime against nature e:ther with man or beast,

shall subject the offender to be punished by imprisonment in

the penitentiary for a term not less than one year, and my [sic]

extend to life.

Compiled Statutes, 1881, § 245, p. 805.

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