Appendix — Baker v. Wade

rene Court, us

Pe ¥) Sup

JAN 13 19%

No. 85- =

.. B18 re rms

IN THE —

Supreme Court of the Gnited States

OCTOBER TERM, 1985

DONALD F. BAKER,

Petitioner,

V.

HENRY WADE, District ATTORNEY OF DALLAS

COUNTY, TEXAS, IN HIS OFFICIAL CAPACITY; AND LEE HOLT,

City ATTORNEY OF DALLAS, TEXAS, IN HIS OFFICIAL

CAPACITY; AND THE CLASS OF ALL City, COUNTY AND

DisTRICT ATTORNEYS IN THE STATE OF TEXAS, IN

THEIR OFFICIAL CAPACITIES,

Respondents.

ON PETITION FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT.

APPENDIX TO PETITION FOR CERTIORARI

LAURENCE H. TRIBE

Counsel of Record

KATHLEEN M. SULLIVAN

BRIAN KOUKOUTCHOS

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-1767

JAMES C. BARBER

Dallas, Texas

January 18, 1986

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

Table of Contents.

Appendix A

Opinion of the United States Court of Appeals for the

Fifth Circuit, en banc, dated August 26, 1985

Appendix B

Memorandum Opinion of the United States District

Court, N.D. Texas, Dallas Division, dated August

17, 1982

Appendix C

Final Judgment of the District Court, dated Septem-

ber 30, 1982

Appendix D

Supplemental Opinion of the District Court, dated

July 1, 1985

Appendix E

Opinion of the United States Court of Appeals for the

Fifth Circuit, dated September 21, 1984

Appendix F

Order denying rehearing en banc, dated October 23,

1985

Appendix G

28 U.S.C. § 2403(b)

la

2la

85a

87a

120a

134a

138a

la

Appendix A.

Donald F. BAKER, Plaintiff-Appellee,

Vv.

Henry WADE, District Attorney of Dallas County,

Texas, Etc., et al.,

Defendants,

Danny E. Hill, 47th District Attorney,

Defendant-Appellant.

No. 82-1590.

United States Court of Appeals,

Fifth Circuit.

Aug. 26, 1985.

Appeal from the United States District Court for the Northern

District of Texas.

Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN,

REAVLEY, POLITZ, RANDALL, TATE, JOHNSON,

WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM,

DAVIS, HILL and JONES, Circuit Judges.*

REAVLEY, Circuit Judge:

Donald F. Baker, a homosexual, sought a declaration that

Tex.Pen.Code Ann. § 21.06 (Vernon 1974) is unconstitu-

tional. Section 21.06 proscribes “engag[ing] in deviate sexual

*Judge Goldberg. now a senior judge of this circuit, is participating as a

member of the panel initiaily deciding the appeal. 28 U.S.C. § 46(c) (1982).

2a

intercourse with another individual of the same sex.” /d.' The

district court held that section 21.06 violates the constitutional

protections of privacy and equal protection. Baker v. Wade,

553 F.Supp. 1121 (N.D.Tex.1982). Danny E. Hill, the district

attorney of Potter County and a member of the defendant class,

sought to appeal the district court’s judgment. A panel of this

court held that Hill did not have the right to intervene and

prosecute the appeal. Baker v. Wade, 743 F.2d 236 (Sth Cir.

1984). We granted rehearing en banc and now hold that Hill

is a proper appellant and that section 21.06 is constitutional.

1. Jurisdiction

Both Baker and Hill argue that the other is not properly

before this court. Hill argues that Baker lacks standing to

challenge the statute. Baker maintains that Hill could not appeal

the district court judgment. We reject both arguments.

Baker has engaged in, and states that he will continue to

engage in, homosexual activities proscribed by section 21.06.

The defendant class representatives agreed that violations of

section 21.06 have been prosecuted and that they will prosecute

future violations where probable cause exists. When a criminal

Statute is challenged, a plaintiff may demonstrate standing

without first exposing himself to arrest. It is enough that there

exists a credible threat of prosecution. Babbitt v. United Farm

Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60

L.Ed.2d 895 (1979).

Deviate sexual intercourse is defined as “any contact between any part of

the genitals of one person and the mouth or anus of another person.” Tex.Pen.

Code Ann. § 21.01(1) (Vernon 1974).

Insofar as § 21.05 condemns public homosexual conduct, it overlaps Tex.

Pen.Code Ann. § 21.07 (Vernon 1974), which proscribes, among other sexual

acts, deviate sexual intercourse in public piaces.

3a

Coming to our jurisdiction to hear Hill’s appeal, as of the

date of the entry of the district court’s judgment Hill was a

member of the class, was enjoined by that judgment, and as

district attorney was a proper official under Texas law to rep-

resent the state. See Texas Const. art. 5 § 21; State v. Gary,

163 Tex. 565, 359 S.W.2d 456, 458 (1962); Shepperd v.

Alaniz, 303 S.W.2d 846 (Tex.Civ.App. — San Antonio 1957,

no writ). As the deadline for giving notice of appeal ap-

proached, Hill filed his own notice. Several days later the

attorney general of Texas filed a timely notice. It then appeared

that the issue of the constitutionality of the Texas statute would

be placed before the appellate court. However, several months

later the attorney general filed a motion in this court to withdraw

his appeal. When Hill learned of this fact, he sought a man-

damus in the Supreme Court of Texas to order the attorney

general to pursue the appeal, to which the latter responded

that Hill had an adequate remedy at law by means of the direct

appeal of the federal case, and pointed out to the Texas court:

“Petitioner Hill has already filed a timely notice of appeal in

the Fifth Circuit of the very decision they seek to have ap-

pealed.”

Hill promptly filed a motion to intervene and to substitute

himself as the class representative, first with the district court

and subsequently with this court. A judge of this court granted

Hill’s motion. Under the peculiar facts of this case the order

granting intervention was justified because Hill’s position satis-

fied the requirements of both Fed.R.Civ.P. 23(d)(2) and

24(a)(2). His motion came as soon as he knew that his interests,

affected by the judgment, i.e. , the declaration of the unconstitu-

tionality of the statute and the injunction against its enforce-

ment, would be pursued. He would be seriously prejudiced

were he not allowed to intervene, whereas allowing the appeal

to proceed prejudiced no one. As a state official empowered

by Texas law to enforce criminal laws, his interest and its im-

da

pairment by the district court’s judgment cannot be questioned.

The adequacy of representation of intervenor’s interests, and

especially those of the class, is ordinarily an issue that would

require hearing and determination by the district court. In this

case where the district court has rejected binding Supreme

Court authority, the circuit court is entitled to conclude as a

matter of law that thuse interests were inadequately represented

by those whe failed to pursue the appeal and that the state

officer seeking to intervene was a proper party to do so. See

United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct.

2464, 53 L.Ed.2d 423 (1977); Stallworth v. Monsanto Co..,

558 F.2d 257 (Sth Cir. 1977); F.W. Woolworth Co. v. Miscel-

laneous Warehousemen’s Union, Local 781, 629 F.2d 1204

(7th Cir. 1980), cert. denied, 451 U.S. 937, 101 S.Ct. 2016,

68 L.Ed.2d 324 (1981).

2. Constitutionality of Section 21.06

The district court held that section 21.06 violated Baker's

constitutional right to privacy and to equal protection of the

law. Baker v. Wade, 553 F.Supp. 1121, 1141, 1143 (N.D.

Tex. 1982). Hill assails the district court’s holding on the

grounds that it fails to give effect to binding precedent and

improperly expands constitutional principles. We agree.

A. Right to privacy

In Doe v. Commonwealth's Attorney, 425 U.S. 901, 96

S.Ct. 1489, 47 L.Ed.2d 751 (1976), the Supreme Court sum-

marily affirmed the judgment of a three-judge district court

upholding the constitutionality of a Virginia sodomy statute

similar to the Texas statute which is attacked in the present

suit. We consider the decision of the Court in Doe to be binding

upon us for the reasons stated by the District of Columbia

Circuit in Dronenburg v. Zech, 741 F.2d 1388, 1391-92 (D.C.

Cir. 1984), and by Judge Kravitch in her dissent to the Eleventh

Sa

Circuit opinion in Hardwick v. Bowers, 760 F.2d 1202, 1213-

16 (11th Cir. 1985). There can be no question but that the

decision of the Supreme Court in Doe was on the merits of

the case, not on the standing of the plaintiffs to bring the suit.

We should follow that controlling authority until the Supreme

Court itself has issued an unequivocal statement that Doe no

longer controls. We refuse to speculate, on the basis of the

writings cited to us by the appellee, about what the Court

might do today on this issue.

B. Equal Protection

Because we have held that engaging in homosexual conduct

is not a constitutionally protected liberty interest and because

Baker has not cited any cases holding, and we refuse to hold,

that homosexuals constitute a suspect or quasi-suspect classifi-

cation, the standard of review is whether section 21.06 is

rationally related to a legitimate state end. McDonald v. Board

of Election Commissioners, 394 U.S. 802, 807-09, 89 S.Ct.

1404, 1408, 22 L.Ed.2d 739 (1969). In view of the strong

objection to homosexual conduct, which has prevailed in West-

ern culture for the past seven centuries, we cannot say that

section 21.06 is “totally unrelated to the pursuit of,” id. at

809, 89 S.Ct. at 1408, 22 L.Ed.2d at 745, implementing

morality, a permissible state goal, Berman v. Parker, 348 U.S.

26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954); Dronenburg

v. Zech, 741 F.2d 1388, 1398 (D.C. Cir. 1984). Therefore,

section 21.06 does not deprive Baker of equal protection of

the laws.’

‘We note, additionally, that aithough the district court in Doe did not address

equal protection, the jurisdictional statement presented the equal protection

argument to the Court. Jurisdictional Statement for Appellant at 9-10, Doe v.

Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751

(1976).

6a

Because we hold that section 21.06 is constitutional, the

injunction of the district court is vacated and the judgment is

REVERSED.

GOLDBERG, Circuit Judge, dissenting:

I concur wholeheartedly with Judge Rubin’s cogent dissent.

Given that the majority sees fit to reach the merits, however,

I would hold Texas’s homosexual sodomy statute unconstitu-

tional. As both the Eleventh Circuit and the district court below

concluded, the Supreme Court’s summary affirmance in Doe

v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489,

47 L.Ed.2d 751 (1976), aff g 403 F.Supp. 1199 (E.D.Va.

1975) (three-judge court), does not control our consideration

of a state provision addressing “private consensual sexual be-

havior among adults,” Carey v. Population Services Interna-

tional, 431 U.S. 678, 688 n.5, 694 n.17, 97 S.Ct. 2010, 2018

n.5, 2021 n.17, 52 L.Ed.2d 675 (1977). See Hardwick v.

Bowers, 760 F.2d 1202 (11th Cir. 1985); Baker v. Wade, 553

F.Supp. 112! (N.D. Tex. 1982). If ever there was a constitu-

tional right to privacy, Texas has violated it by biatantly intrud-

ing into the private sex lives of fully consenting adults. Because

this legislative trespass lacks a compelling state interest, I

would hold this statute invalid on its face.

ALVIN B. RUBIN, Circuit Judge, with whom GOLDBERG,

POLITZ, RANDALL, TATE, JOHNSON, and WILLIAMS,

Circuit Judges join, dissenting.

Determined to uphold the constitutionality of a Texas statute

whatever obstacles bar the way, the majority opinion tramples

every procedural rule it considers. No party to the suit has

pursued this appeal, but the majority opinion recognizes an

appeal filed by a class member who was not a class represen-

tative at the time he filed his appeal, permits a so-called inter-

vention to be filed in the court of appeals by the same class

Ta

member who sought to intervene only !n his own abortive

appeal, and decides that the Texas Attorney General together

with representatives of a class including all of its prosecutorial

officials do not provide adequate representation for the State

of Texas in a suit involving the constitutionality of a criminal

statute, but that any of the 1085 Texas district, county, and

city attorneys is an appropriate party to represent the state and

assert its position in the court of appeals. The court’s judicial

sponsorship of Danny Hill as spokesman for the State of Texas

is not only unprecedented but ill-advised. The Texas Attorney

General and the class representatives, who have been found

wanting in no way save in failing. to press the appeal, have

decided that the sovereign interests of the state are served by

allowing the district court decision to stand. It is neither Hill’s

province nor ours to question that judgment.

If this en banc decision is precedent, it assuredly rewrites

the adjective law. If it is not intended to be precedential, but

only a special life-support contrivance, undertaken for the one

purpose of salvaging the statute, it denies equal justice both

to the litigants before us and to those who, in the future, will

be denied equally extreme judicial measures. I, therefore, re-

spectfully dissent from the decision not to dismiss the appeal.

Let us first trace the procedural history of this case in some-

what greater detail. The complaint named as defendants Lee

Holt, the City Attorney for Dallas, Texas, and Henry Wade,

the District Attorney for Dallas County, in their official

Capacities, and sought a declaratory judgment that the Texas

statute is unconstitutional. Later, Baker filed a motion to certify

a defendant class of officials responsible for enforcement of

the statute.

8a

Before the motion was heard, the Attorney General of Texas

was notified of the suit, pursuant to 28 U.S.C. § 2403(b).' At

the instance of Holt, the district court granted the State of

Texas and the Attorney General “leave to intervene for the

presentation of evidence and for argument on the question of

the constitutionality of § 21.06,” and the State of Texas filed

what it titled a “Response of the State of Texas” to the com-

plaint. Holt’s assistant city attorney then wrote Thomas A.

Curtis, the District Attorney of Potter County, Hill's predeces-

sor in office, and thirty-nine other Texas officials, notifying

each of the suit and the possibility of certification of a defendant

class, and offering each an opportunity to intervene. Curtis

did not seek to intervene nor did any other Texas district,

county, or city attorney. Only then, and with the consent of

the defendants, was the case certified as a defendant class

action under Rule 23(b)(2) of the Federal Rules of Civil Pro-

cedure. The class was composed of “ail district, county and

city attorneys in the state of Texas responsible for the enforce-

ment of ‘Texas Penal Code Ann. § 21-06,” and represented by

Holt and Wade. The order named as lead class counsel Holt’s

assistant city attorney Joe Werner and as associate class counsel

Wade’s assistant district attorney C.J. Baldree and state assis-

tant attorney general Lonny Zwiener. The class was properly

‘28 U.S.C. § 2403(b) reads as follows:

In any action, suit, or proceeding in a court of the United States to which

a State or any agency, officer, or employee thereof is not a party, wherein

the constitutionality of any statute of that State affecting the public

interest is drawn in question, the court shall certify such fact to the

attorney general of the State, and shall permit the State to intervene for

presentation of evidence, if evidence is otherwise admissible in the case,

and for argument on the question of constitutionality. The State shall,

subject to the applicable provisions of law, have ali the rights of a party

and be subject to all liabilities of a party as to court costs to the extent

necessary for a proper presentation of the facts and law relating to the

question of constitutionality.

9a

certified as a (b)(2) class because the suit involved only a

question generally applicable to the class.

The district court rendered a judgment declaring the statute

unconstitutional and enjoining its enforcement on September

30, 1982. Danny Hill was then neither a named defendant nor

a class representative, and he had never sought to intervene.

Nonetheless, on October 28, Hill filed a notice of appeal. At

that time, no named party had sought to appeal. Four days

later the Attorney General of the State of Texas filed a notice

of appeal on behalf of the State of Texas. Then, before any

further proceedings in this court, the Attorney General with-

drew his notice of appeal. Hill then unsuccessfully attempted

to have the Texas Supreme Court mandamus the Attorney

General, on March 28, 1983, to force him to pursue his Fifth

Circuit appeal.

Hill next filed two motions in the district court on April 12,

1983. One was a motion to intervene and to “substitute” himself

as class representative,’ and the other was a motion to set aside

the final judgment and reopen the evidence. These motions

were not acted on by the district court until April 3, 1984, a

year later. The correctness of that court’s decision is not now

before us.

While the district court motions were still pending, however,

Hill filed a motion in this court to intervene and “substitute”

himself as class representative.’ In that motion, Hill explicitly

acknowledged that “[o]n April 12, 1983, appellant filed a

Motion to Intervene and Substitute Class Representative in the

trial court. The trial court has not ruled on the Motions [sic].”

On August 16, 1983, a judge of this court granted “appellant's

*Procedurally, Hill's motion was not a request for substitution under

Fed.R.Civ.P. 25, but was a motion to intervene and be named class represen-

tative under Fed.R.Civ.P. 23 and 24. See 7A C. Wright & A. Miller, Federal

Practice and Procedure § 1951, at 638 (1972).

‘See supra note 2.

10a

motion to intervene and substitute class representative.” To

the extent that evidence, if it may be thus called, was offered

in support of the motion, it consisted only of assertions in

Hill’s brief in support of the motion filed with this court.

Two weeks before oral argument of the case, the trial court

denied Hill’s motion to intervene and substitute class represen-

tative and his motion to set aside the final judgment and reopen

the evidence. It found that Hill had not shown that the current

class representatives were inadequate or that he could

adequately represent the class. It granted Hill leave to refile

his motion, however, if he were prepared to make such a

showing. From the trial court’s denial of a motion to reconsider,

that decision has since been appealed but the appeal has not

yet been heard.

When Hill filed his notice of appeal, he was not a party to

the case. He had no right to appeal. The majority does not

hold that his appeal was properly lodged, for to do so would

recognize that any class member may on his own motion appeal

any judgment adversely affecting the class. Instead, it finds

that this court has jurisdiction of the appeal because “[u|nder

the peculiar facts of this case the order granting intervention

was justified.”* Thus, our jurisdiction is created by Hill’s mo-

tion to intervene in an appeal filed only by Hill himself, the

motion coming nine months after the notice of appeal.

This conclusion conveniently overlooks the question

whether an intervention does not by its very nature require a

subsisting action in which to intervene. An intervenor by def-

inition does not create a suit or an appeal; he intervenes in an

‘Opinion, 769 F.2d at 291 (emphasis added)

lla

action that has already been undertaken. The majority does

recognize that a problem is created by its recognition of a

motion to intervene never filed in or acted on by a district

court, saying, “The adequacy of representation of intervenor’s

interests, and especially those of the class, is ordinarily an

issue that would require hearing and determination by the

district court.”* The majority goes on, however, to assert that,

in this case, the question is one of law, a sheer ipse dixit, for

the three cases cited for this proposition, with the ambiguous

reference, “See,” provide no support for it whatsoever.

Whether the interests of a would-be intervenor have been in-

adequately represented and whether the interests of a class of

which he is a member have also been inadequately represented

are factual questiuns. to be resolved by a trial court, not ques-

tions of law.

In United Airlines, Inc. v. McDonald,’ the first of the cases

cited in support of this court’s admittedly extraordinary recog-

nition of Hill as an intervenor, the Supreme Court considered

the timeliness of a motion to intervene filed in the district court

for the purpose of appealing that court’s earlier denial of class

action certification, and po more. The district court had denied

the motion’ to intervene and had earlier denied a motion for class

certification. The Supreme Court held that, on the record made

in the district court, the motion to intervene for the purpose of

appealing the district court’s earlier denial of class action cer-

tification was timely. The Supreme Court cited a number of

lower federal court decisions consistent with its opinion.” In

“Id. (emphasis supplied).

*432 ULS. 385. 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977).

Id. at 390, 97 S.Ct. at 2467. 53 L.Ed.2d at 429.

"See id. at 395 n.16, 97 S.Ct. at 2470 n.16, 53 L_Ed.2d at 43? n_I6: see

also infra note 9.

12a

every one of these, a motion to intervene was filed in and

ruled on by the district court.’

Our decision in Stallworth v. Monsanto Co.,"’ the next au-

thority cited, gives no greater support. In its first sentence,

the opinion states the issue considered and decided: “These

consolidated appeals are taken from the district court’s denial

of two petitions for leave to intervene under Rule 24. . . .”''

The Seventh Circuit, in F.W. Woolworth Co. v. Miscellaneous

Warehousemen’s Union, Local No. 781," likewise considered

only an appeal from the district court’s denial of motions to

intervene.'’ Indeed, in an opinion that has scarcely had time

to reach the advance sheets, a panel of this court held, in Fuel

Oil Supply and Terminaling v. Gulf Oil Corp.,'* that whether

a party has a right to intervene in a bankruptcy proceeding is

a question of fact to be determined by the trial court.'*

Rules 23(d)(2) and 24(a)(2) of the Federal Rules of Civil

Procedure, which are relied upon by the majority, cannot sus-

tain Hill’s effort to intervene and create his own appeal in the

*See American Brake Shoe & Foundry Co. v. Interborough Rapid Transit

Co., 3 F.R.D. 162 (S.D.N.Y. 1942); Pellegrino v. Nesbit, 203 F.2d 463 (9th

Cir. 1953); Hodgson v. United Mine Workers, 473 F.2d 118, 129 (D.C. Cir.

1972); Smuck v.-Hobson, 408 F.2d 175, 181-82 (D.C. Cir. 1969); Zuber v.

Allen, 387 F.2d 862 (D.C. Cir. 1967); Hobson v. Hansen, 44 F.R.D. 18,

29-30, n.10 (D.D.C. 1968); Wolpe v. Poretsky, 144 F.2d 505, 508 (D.C.

Cir.), cert. denied, 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944): United

States Casualty Co. v. Taylor, 64 F.2d 521, 526-527 (4th Cir.), cert. denied,

290 U.S. 639, 54 S.Ct. 56, 78 L.Ed. 555 (1933); see also Trbovich v. United

Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972).

558 F.2d 257 (Sth Cir. 1977).

‘Id. at 260.

629 F.2d 1204 (7th Cir. 1980), cert. denied, 451 U.S. 937, 101 S.Ct.

2016, 68 L.Ed.2d 324 (1981).

'* See id. at 1208.

*762 F.2d 1283 (Sth Cir. 1985).

“Id. at 1287-88.

13a

court of appeals for they both deal, as Rule | plainly says,

with “the procedure in the United States district courts.” The

“court” that may make appropriate orders, referred to in Rule

23(d)(2), which applies to class actions, is the district court

in which the action is filed. The intervention permitted by

Rule 24 is intervention in a pending action.

In Johnson v. Georgia Highway Express, Inc.,'° we made

it absolutely clear that the determination whether a class

member would adequately and fairly represent the class and,

thus, whether he should be named class representative is a

determination for the trial court:

Whether [the class member] will adequately represent the

class is a question of fact to be ‘raised and resolved in

the trial court in the usual manner,. . . . Therefore, the

court below, if it doubted appellant's ability to protect

the interests of the class, could have had, and on remand

still can have an evidentiary hearing on the issue.’

A federal court of appeals takes no evidence, creates no record,

and decides no factual issues in the first instance. It is a court

of review.

A motion filed in a district court by a nonparty who seeks

to intervene in order to prosecute an appeal is significantly

different from a motion filed in an appellate court by a nonparty

who seeks to intervene in an existing appeal, and whether each

kind of motion should be granted involves different judicial

considerations. When the motion to intervene is filed in a

district court, to enable the would-be intervenor to prosecute

an appeal, evidence may be taken on such matters as whether

the application is timely, whether the applicant’s interest is

°417 F.2d 1122 (Sth Cir. 1969).

Id. at 1124-25 (citation omitted)

l4a

adequately represented by existing parties, the nature and suf-

ficiency of the would-be intervenor’s interest, and any other

questions pertinent to intervention, as required by Rule 24, or

if the action is a class action, Rule 23. An appellate court may

then review the district court’s action on the basis of the record

made in that court. When a motion is filed in an appellate

court to intervene in an existing appeal, however, “a court of

appeals may, but only in an exceptional case for imperative

reasons, permit intervention where none was sought in the

district court.””'* Thus we have refused to allow a nonparty to

intervene on appeal when he was aware of the action in the

district court and of his interest in it but failed to intervene in

that court,'? whereas we have allowed a nonparty who had no

notice of the action below to intervene when there was no

opposition to his intervention on appeal.” Even in these cases,

however, an appeal had already been taken by, a party to the

action, into which the nonparty sought to intemene, and no

motions to intervene were pending in the lower courts.

A class member is not precluded from intervening after

judgment. To do so, however, he must timely assert his right

I district court.*' If his application is denied, he may then

appeal from the order denying intervention. If no other appeal

has been taken, Moore’s Federal Practice states, he “may,

probably must, file a notice of appeal from the judgment

from which he seeks to appeal within the time prescribed by

“McKenna v. Pan American Petroleum Corp., 303 F.2d 778, 779 (Sth Cir.

4)

Id.

” See United States v. Bursey. 515 F.2d 1228, 1238 & n.24 (Sth Cir. 1975).

*' See 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice © 203.06,

at 3-21 to 3-23 (1985): see, e.g., United Airlines, Inc. v. McDonald, 432 U.S.

385, 390, 394, 97 S.Ct. 2464, 2467, 2469-70, 53 L.Ed.2d 423, 429, 432

(1977)

15a

Rule 4a.”” Then, “if the court of appeals reverses the order

denying intervention, it will proceed with the merits.”** On

the other hand, “[i]f it affirms denial of intervention, it will

dismiss the appeal from the judgment on the merits on ground

of want of standing.”

Faced with a case similar to the one before this court, the

District of Columbia Circuit held the appeal in abeyance and

remanded the case to the trial court for its determination of

the right to intervene.” In this case, district court has considered

the motion, decided it, and an appeal from that decision has

been taken. The validity of the district court proceedings and

the merits of its decision should be considered when that appeal

is heard.

II.

Hill’s membership in the class does not relieve him from

meeting the requirements of Rule 24(a) for interventions.”

"9 J. Moore, B. Ward, & J. Lucas, supra note 21 § 203.06, at 3-22

(emphasis in original); see, e.g., United Airlines, Inc. v. McDonald, 432 U.S.

385, 390, 97 S.Ct. 2464, 2467, 53 L.Ed.2d 423, 429 (1977).

9 J. Moore, B. Ward & J. Lucas, supra note 21 { 203.06, at 3-22; cf.

Stallworth vy. Monsanto Co., 558 F.2d 257, 263 (Sth Cir. 1977); United States

v. American Tel. & Tel. Co., 642 F.2d 1285, 1290 (D.C. Cir. 1980); Gregory-

Portland Indep. School Dist., 576 F.2d 81, 83 (Sth Cir. 1978) (Godbold, J.,

concurring), cert. denied, 440 U.S. 946, 99S.Ct. 1423, 59 L.Ed.2d 634 (1979).

*9 J. Moore, B. Ward & J. Lucas, supra note 21 § 203.06, at 3-22 to 3-23;

cf. Penns ivania v. Rizzo, 530 F.2d 501, 508 (3d Cir.), cert. denied sub nom.,

Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96S.Ct. 2628, 49 L.Ed.2d

375 (1976); Jones v. Caddo Parish School Bd., 735 F.2d 923, 938 (Sth Cir.

1984) (en banc).

** See Hobson v. Hansen, 44 F.R.D. 18, 21 (D.D.C. 1968).

* See TA C. Wright & A. Miller, Federal Practice and Procedure § 1799,

at 252-55 (1972).

l6a

Only if Hill meets those requirements may he intervene as a

named party to this case.

A class member may intervene without displacing the class

representatives. He may, however, choose another, and differ-

ent, course: he may seek to have the designated class represen-

tatives removed for failure adequately to represent the class

and seek to have himself designated as class representative.

Hill does not dispute that the class representatives adequately

represented the class in the trial court. His sole assertion of

inadequacy is their failure to appeal. The class representatives’

failure to appeal is a factor, but only a factor, in deciding

whether their representation is adequate.*’ Hill has never dem-

onstrated that by failing to appeal they have failed “fully and

adequately to protect the interests of the class” as a whole, as

required by Rule 23(a), as qualified by Rule 23(b)(2), the

class action rules, or that as required by Rule 24, the interven-

tion rule, Hill’s interest as a state official has not been

adequately represented by them.

To determine whether the representatives have adequately

represented the interest of the class as a whole, and con-

sequently Hili’s interest as a member of that class, we must

define that interest. Danny Hill has no personal interest in this

case, and indeed no member of the class has any personal

interest in it. Hill’s only interest, as he admits, stems from his

office as District Attorney, and he seeks to appear before us

only in that official capacity. No money judgment has been

or will be rendered against him, even for costs, as a represen-

‘’ Compare Smuck v. Hobson, 408 F.2d 175, 181 (D.C. Cir. 1969), with

Spangler v. Pasadena City Bd. of Educ., 427 F.2d 1352, 1354 (9th Cir. 1970),

cert. denied sub nom., Alexander v. Pasadena City Bd. of Educ., 402 U.S.

943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971); see also 7A C. Wright & A.

Miller, Federal Practice and Procedure § 1909, at 532 (1972).

17a

tative in his official capacity.** No judgment has been entered

against him in his personal capacity.

That a district attorney is a proper official to represent the

state for some purposes cannot be doubted. The issue here,

however, is whether the interests of the state and of the class

have been adequately and fuliy represented. In this respect the

other class members have an interest identical to Hill’s and

indeed identical to the State’s, for, in their official capacities,

they have no interest greater than or different from the State's

interest.” None of them has offered to us any indication of

dissatisfaction with the action of their representatives.

The real party in interest” is the State of Texas, for it is

the facial constitutionality of a state statute that is at issue.

Whether the Texas Attorney General has power to prosecute

for crimes and whether, in the absence of the Attorney General,

suit to challenge the constitutionality of a state statute might

be brought in federal court against some other official are not

at issue here and are indeed irrelevant. Neither the Texas

Constitution nor the two cases cited by the majority"' give a

district attorney authority to act for the state in a declaratory

judgment action in federal court in which the Attorney General

has intervened to protect the state’s interest, and they do not

dictate to a federal appellate court whether representation of

the state’s or the class members’ interests has been adequately

“See Kentucky v. Graham, U.S. ——-, ——. 105 S.Ct. 3099, 3104,

87 L.Ed.2d 114 (1985); Brandon v. Holt, —— U.S. , — ., 105 S.Ct.

873, 878, 83 L.Ed.2d 878, 885 (1985); Hutto v. Finney, 437 U.S. 678,

699-700, 98 S.Ct. 2565, 2578, 57 L.Ed.2d 522, 539-540 (1978).

” See cases cited supra note 28.

“ See New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d

452, 464 (Sth Cir.) (en banc), cert. denied sub nom., Morial v. United Gas

Pipe Line Co., —— U.S. ——, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984).

State v. Gary, 163 Tex. 565, 359 S.W.2d 456, 458 (1962); Shepperd v.

Alaniz, 303 S.W.2d 846 (Tex.Civ.App. — San Antonio, 1957, no writ).

18a

undertaken. When both the State’s Attorney General and the

class representatives have decided that it is not in the state’s

interests to appeal, it is not the province of any one of the

1085 district, county, and city attorneys of the State to do so

on the a priori basis that all others are out of step and that he

alone knows the state’s true interest.

In deciding who should speak for the state, it is important

to consider the result of an adverse judgment against the state

on appeal. Not only might the decision of the district court be

affirmed” but the state might be required to pay the costs of

appeal, including the attorney’s fees taxable under § 1988.*°

If Hill or any of the multitude of prosecuting attorneys may

take it on himself to appeal an adverse ruling, the expense

would not fall on Hill or on the other Horatius at the constitu-

tional bridge or on his city or county but on the state.

Whatever Hill’s interest in this case may be, it arises solely

out of his official capacity as Potter County Attorney, as Hill

States in his en banc reply brief. Hill asserts that his official

interests have been inadequately represented by the class rep-

resentatives and the State’s Attorney General. The burden of

proof, however slight, is on him.** He has not borne it.

IV.

Soon after the founding of the Republic, the Supreme Court

indicated that the power of judicial review should be exercised

"Cf. Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985).

*42 U.S.C. § 1988.

“ See Brandon v. Holt, —— U.S. ——., 105 S.Ct. 873, 878, 83 L.Ed.2d

878 (1985); Hutto v. Finney, 437 U.S. 678, 699-700, 98 S.Ct. 2565, 2578,

57 L.Ed.2d 522, 539-540 (1978); Crane v. Texas, 759 F.2d 412, 432 (Sth

Cir. 1985), reh’g denied, 766 F.2d 193, 194 (Sth Cir. 1985).

‘’ See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10, 92 S.Ct.

630, 636 n.10, 30 L.Ed.2d 686, 694 n.10 (1972), Bush v. Viterna, 740 F.2d

350, 355 (Sth Cir. 1984).

19a

reluctantly, only because it is essential to the decision of the

case before a federal court and because the Constitution and

the laws of the United States, as the “Supreme Law of the

Land,” require it.*° The justification for federal judicial review

of the constitutionality of a federal or state legislative enactment

rests upon these principles. As a corollary, the Supreme Court

has espoused and this court has followed the prudential prin-

ciple that a federal court should not and will not reach a

constitutional question if it can rest its decision on nonconstitu-

tional grounds.*’ As we stated in Ramsay v. Bailey,™

‘{hJowever novel and interesting may be these constitutional

claims, it is our duty to decide this case on other grounds if

possible.” The principle applies with equal force whether

decision on the merits would uphold or reject constitutionality.

If judicial restraint is a doctrine invoked only to achieve a

desired result but to be ignored when following it would not

be expedient, it ceases to be a principle and becomes but

another rationalization by which judges may achieve their pur-

pose.

Whether the Attorney General, District Attorney Wade, and

City Attorney Holt have acted wisely or well in the interests

* See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); see

also Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 4L.Ed. 97 (1816).

” See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68

L.Ed.2d 693, 702 (1981); Rescue Army v. Municipal Court, 331 U.S. 549,

568-75, 67 S.Ct. 1409, 1419-23, 91 L.Ed. 1666, 1677-81 (1947); Ashwander

v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-84, 80 L.Ed. 688, 710-11

(1936) (Brandeis, J., concurring); Ratcliff v. Estelle, 597 F.2d 474, 478 (Sth

Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979);

Universal Amusement Co. v. Vance, 587 F.2d 159, 166 (Sth Cir. 1978) (en

banc), aff'd, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); Ramsay

v. Bailey, 531 F.2d 706, 707 (Sth Cir. 1976), cert. denied, 429 U.S. 1107,

97 S.Ct. 1139, 51 L.Ed.2d 559 (1977).

* $31 F.2d 706 (Sth Cir. 1976), cert. denied, 429 U.S. 1107, 97 S.Ct.

1139, 51 L.Ed.2d 559 (1977).

"Id. at 707.

20a

of the State or in the interests of their constitutents, are ques-

tions to be decided by the Texas electorate and by the institu-

tions of Texas government.“ It has not been properly shown

that they have inadequately represented the interests of the

State that they were elected to serve or the interests of the

class that they were appointed to represent. From the decision

to permit Danny Hill, in his official capacity as District Attor-

ney of Potter County, one of 254 Texas counties, to intervene

on appeal and to prosecute this appeal, I respectfully dissent.

” See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. €91, 710, 7 L.Ed.2d

663, 685 (1962).

2la

Appendix B.

Donald F. BAKER, Plaintiff,

Henry WADE, District Attorney of Dallas County, Texas,

in his official capacity; and Lee Holt, City Attorney of

Dallas, Texas, in his official capacity; and the Class of ail

City, County and District Attorneys in the State of Texas,

in their official capacities, Defendants.

Civ. A. No. 3-79-1434-R.

United States District Court,

N.D. Texas,

Dallas Division.

Aug. 17, 1982.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a suit by a homosexual, Donald F. Baker, attacking

the constitutionality of § 21.06 (“Homosexual Conduct”) of

the Texas Penal Code. Section 21.06 (and the related defini-

tions in §§ 1.05 and 21.01) provide:

“A person commits an offense if he [or she] engages

in deviate sexual intercourse with another individual of

the same sex.

“*Deviate sexual intercourse’ means any contact be-

| tween any part of the genitals of one person and the mouth

or anus of another person.”

22a

A violation of this statute is a “Class C misdemeanor,” punish-

able only by “a fine not to exceed $200.” Tex.Penal Code

Ann. § 12.23 (Vernon 1974).

The defendants contend that § 21.06 is constitutional be-

cause it furthers the state’s interests in protecting “morality,

decency, health, welfare, safety, and procreation” — but, de-

spite these important state interests, they also claim that the

case should be dismissed because no one is ever prosecuted

under this statute.

There have been (and will continue to be) prosecutions of

both homosexuals and heterosexuals — under Texas Penal

Code provisions not involved in this suit — for such sexual

offenses as (i) rape and sexual abuse by force, §§ 21.02 and

21.04; (ii) indecent exposure or public lewdness, §§ 21.07

and 21.08; and (iii) rape, sexual abuse or fondling of a child,

$§ 21.09-21.11.

However, § 21.06 does not concern rape, sexual abuse by

force, offenses involving minors, or sexual conduct in public.

Nor does it prohibit sodomy between a husband and wife or

between an unmarried male and female. Instead, it condemns

only homosexual conduct done in private between consenting

adults. Accordingly, it is unconstitutional because it violates

both the fundamental right of privacy and the right to equal

protection of the laws guaranteed to the plaintiff (and other

homosexuals) by the United States Constitution.

This opinion will first discuss the procedutal background of

the controversy, the sodomy statute involved, and the facts

established at trial (pages 1125-1134). Then, it will analyze

the legal issues of right of privacy and equal protection (pages

1134-1145). Finally, it will deal with several additional matters

raised by the parties (pages 1145-1147), and conclude by de-

scribing the exact limits of this decision (pages 1147-1148).

The Procedural Seiting

The complaint seeks a declaration that § 21.06 (Homosexual

Conduct) of the Texas Penal Code is unconstitutional because

it violates (i) the plaintiff's fundamental right to privacy, (ii)

the equal protection clause of the fourteenth amendment, and

(iii) the establishment of religion clause of the first amendment.

It named as defendants Henry Wade, District Attorney of

Dallas County (“Dallas County”) and Lee Holt, City Attorney

of Dallas, Texas (“City of Dallas”) — but also sought a defend-

ant class, under Fed.R.Civ.P. 23(b)(2), consisting of “all dis-

trict, county and city attorneys in the State of Texas responsible

for the enforcement of Texas Penal Code Ann. § 2106.” After

the State of Texas intervened, the parties agreed that such a

defendant class was proper. A consent certification order was

entered, and the Court reaffirms its determination that the

defendant class was properly certified.’

The Statute

Texas has had three sodomy statutes. See Appendix A (“The

Texas Sodomy Laws’).

The four requirements of Rule 23(a) — “numerosity, commonality , typical-

ity and adequacy” — have been met. There are several hundred public prose-

cutors in Texas who have jurisdiction to enforce § 21.06. Plaintiff's claims

against the named defendants are common to and typical! of his claims against

the defendant class — that they all enforce an unconstitutional law and that,

during his regular travels throughout the state, he faces the threat of prosecution

under § 21.06. Defendants Holt and Wade are adequate representatives of the

class, and no conflicts exist between them and other class members. In addition,

approximately 40 district, county and city attorney's offices (including those

in major metropolitan areas) were advised by defendant Holt that they should

intervene in this suit by September |, 1980, but none of them chose to do so.

The members of the class act on “grounds generally applicable to the class”

in enforcing a law claimed to be unconstitutional, making final injunctive relief

appropriate “with respect to the class as a whole.” Accordingly, the defendant

class was properly certified under Fed.R.Civ.P. 23(a) and 23(b)(2).

24a

The first was enacted in 1860. It prohibited “the abominable

and detestable crime against nature” (punishable by 5-15 years

imprisonment). However, this statute did not condemn oral

sex, but only anal sex and bestiality.” Thus, for a period of

83 years, oral sodomy was not illegal in Texas — whether

committed by man and wife, by unmarried male and female,

or by homosexuals.

The second statute was Article 524, Texas Penal Code Ann..,

adopted in 1943. It prohibited “carnal copulation” with human

or beast (punishable by 2-15 years imprisonment), and con-

demned ail oral and anal sex and bestiality. Thus, for the next

31 years, it was a felony for anyone in Texas — married

couples, single males and females, male homosexuals or les-

bians — to engage in oral or anal sodomy, even in private

with another consenting adult.’

The third statute, § 21.06, was passed in 1974 as part of

the first comprehensive reform of the state’s criminal laws

since the initial penal code had been enacted in 1856. It pro-

hibited only homosexual sodomy. All prohibitions against oral

or anal sex between consenting adults of opposite sex, whether

married or not, were rescinded (as were criminal laws against

fornication and adultery). Thus, for the past 8 years in Texas,

only homosexuals have been prohibited from engaging in pri-

vate, consensual sodomy (although punishment was drastically

reduced by § 21.06, with no imprisonment and a maximum

fine of $200). At least three sessions of the Texas legislature

See Appendix A; Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1971),

appeal dismissed for want of substantial federal question, 402 U.S. 902, 91

S.Ct. 1379, 28 L.Ed.2d 643 (1971).

‘As discussed in Appendix A, this statute (Article 524) was held unconstitu-

tional by a three-judge federal court, Buchanan v. Batchelor, 308 F.Supp. 729

(N.D. Tex. 1970), reversed and remanded on other grounds, 401 U.S. 989,

91 S.Ct. 1222, 28 L.Ed.2d 526 (1971) — but the Texas Court of Criminal

Appeals declined to follow this decision and held that Article 524 was constitu-

tional, Pruett v. State, 463 S.W.2d 191.

25a

have rejected attempts to repeal § 21.06, and this is the first

direct constitutional attack upon it.*

There are practical difficulties in prosecuting persons under

§ 21.06 for private homosexual conduct. If the acts are between

two people in private, there may be no witness to testify at

trial. Moreover, “the consenting parties to acts of sodomy are

equally guilty and their testimony as witnesses for the state

would require corroboration.””*

However, homosexuals have in fact been prosecuted under

the Texas sodomy statutes.° And, the parties in this case stipu-

lated in the final pretrial order that the plaintiff is “an admitted

practicing homosexual”; that he has not been arrested or prose-

cuted for a violation of § 21.06; but that cases involving vio-

lations of this statute “have been prosecuted by various assistant

city attorneys and assistant district attorneys” in Dallas; and

that both defendants “would prosecute the plaintiff and other

homosexuals under § 21.06 if a provable violation of the law

came to their attention.”

The Facts

The following summary of the testimony of the plaintiff,

the plaintiff's experts, and‘the defendants’ witnesses constitutes

this Court’s findings of fact under Fed.R.Civ.P. 52 (a).

‘See Appendix A: Cyr v. Walls, 439 F.Supp. 697 (N.D. Tex. 1977); Childers

v. Dallas Police Dept., 513 F.Supp. 134 (N.D. Tex. 1981), affirmed without

opinion, 669 F.2d 732 (Sth Cir. 1982).

‘Pruett v. State, 463 S.W.2d at 193. Apparently, no married couples were

ever prosecuted under Article 524 because of these reasons — and also because

“neither spouse would be competent to testify against the other by reason of

their relationship as husband and wife” (463 S.W.2d at 193).

* See, e.g., Buchanan v. Batchelor, 308 F.Supp. 729. David Rosen, a former

assistant city attorney, testified that a case could be prosecuted under § 21.06

if a “credible” witness observed the private acts of sodomy. Also, § 21.06

might be used by the state if there is some doubt about whether the acts of

sodemy occurred “in a public place” under § 21.07 (Public Lewdness).

26a

the plaintiff

Donald F. Baker, 35, is a former Dallas school teacher w

received his master’s degree in education from Southe

Methodist University in 1980. He has never been arrested

convicted of any criminal offense. He is an active and devc

Christian. And, he is a good citizen, having served as preci

chairman and as a delegate to two state Democratic Pa

conventions.

But Donald Baker is a homosexual. He has never had s

with a woman, or even been sexually aroused by a fema

He does engage in private sexual acts with other adult mal

but is not capable of doing so with females. Therefore, Donc

Baker is also a criminal under § 21.06 of the Texas Penal Coc

Baker was a very sincere, very credible witness.’ While |

parents listened in the courtroom, Baker gave the followi

testimony about his adolescent ignorance of his homosexualit

his disgust and self-loathing upon recognition of it, his isolati

and suffering, his suicidal tendencies, and his eventual chan

from a “homosexual” into a “gay.””*

Although people tend to stereotype homosexuals, just as they do corpor

executives and truck drivers, “contrary to the frequently held notion that

homosexuals are alike, they are in fact very heterogeneous.” National Instit

of Mental Health Task Force on Homosexuality, p. 2 (Oct. 1969) (admit

as plaintiff's exh. 21 and hereinafter cited as “Task Force on Homosexuality

During trial, Donald Baker dressed conservatively, was very articulate, 4

had the appearance that most people might expect of a school teacher or bz

executive.

“According to Baker, a “homosexual” is one who has an emotional, erc

attachment to one of the same sex — while a “gay” is one “who is proud

being a homosexual.” See Cyr v. Walls, 439 F.Supp. 697. 699 n.2.

27a

Baker was born on April 24, 1947, into a very stable and

religious family in Dallas. His grandfather had been an Assem-

bly of God minister, and Baker was very active in this church.

He was a leader in various youth activities, including the

church choir and the boy scouts. During his junior high school

years, when Baker was 13 or 14, he started to become a vare

that he was somehow “different.” Although he dated some

girls because of peer pressure, he found this awkward. He

began realizing that he had strong feelings for his male friends,

but could not understand his frustration and loneliness. He

knew that “queers were bad,” and had no idea that he might

be homosexual.

In 1965 Baker graduated from high school and attended East

Texas State University. There, he became even more aware

that he was “different.” He did “some study” of the “general

area of homosexuality,” and learned it was illegal. He grew

very disappointed in himself, and simply could not understand

why he was having feelings that were “wrong” and “criminal”

and “sinful.”

After two years at East Texas (1965-67), Baker transferred

to the University of Texas at Austin. There, he continued his

church activities and worked at a campus bookstore. He had

never engaged in any homosexual conduct and still did not

know he was homosexual. Then, in November of 1967 —

when Donald Baker was 20 — he had his first homosexual

“experience.”

On that day, Baker took a break from work at the bookstore

to watch a football game on television in the student union.

The room was crowded and Baker soon became aware of a

man standing next to him. After a while, Baker looked up,

and the man — blond, early twenties, medium height — was

staring at Baker, with a look that was “erotic.” Baker felt

intense anxiety and attraction. He followed the man to the rest

room, but nothing happened. Baker refused the man’s ad-

vances, and returned to work, where he broke into sobs.

28a

Baker was overwhelmed with fear and with disgust. He

knew his desires for sexual contact with the man were wrong,

and were contrary to his family and religious values. Baker

felt he was a “dirty, nasty thing.” He left work, and went to

sing in the church choir, but broke down there, too. He tried

to talk to his minister, but could not bring himself to tell the

minister what was really wrong.

After that day, Baker cut himself off from the world. He

refused to open the door to his room or answer the phone for

over two weeks. Baker was afraid he had a “disease” and

might contaminate others. He was sure that “God hated him”

and that “society hated him” and that “his family hated him.”

In May of 1968, Baker joined the Navy because “he needed

to run away from what he was.”

Baker had not engaged in any homosexual conduct while

in college, nor would he do so while he was in the Navy. He

served in the Navy for four years (1968-72), with an excellent

record. During this time, Baker continued to attend church

and agonized about “what he was.” He knew that if he was

homosexual, then “he wouldn’t have a job, his family would

reject him, and he would burn in hell.” Baker prayed for

deliverance.

In January of 1972, Baker was honorably discharged. He

came home to Dallas, but had a “terrible fear,” and left after

only two weeks to live with friends in Massachusetts. During

the next two years, Baker felt isolated and rejected — his

suffering and disgust continued — and he seriously considered

suicide. Baker still had not engaged in any homosexual con-

duct. In 1974, he enrolled at the State University of New Work

in Cortland, continuing his studies in elementary and secondary

school education (graduating cum iaude in 1975).

One day Baker decided to attend a meeting of a gay organi-

zation at Cornell University in Ithaca, thirty miles away. He

was nervous, and walked around the Cornell campus for albout

29a

an hour. Finally, he sneaked into the building, and stood hidden

on a balcony where he could see the meeting down below. It

was the first time Donald Baker had ever seen other human

beings that he knew were homosexual, too, but who were not

ashamed of that fact.

At age 27, Donald Baker was starting “to come out of the

closet.”” He became acquainted with other “gays,” and “learned

that that they were were not monsters.” During the next year,

he studied history, sociology and psychology; he re-examined

the Bible and satisfied himself that he could be a devout Chris-

tian as well as a homosexual; and he gradually “came to terms

with the fact that he was homosexual,” although he was still

discreet in telling others.

In 1975, Baker returned to Dallas and “came out” to his

family, admitting to them that he was homosexual. He obtained

a job with the Dallas Independent School District, and taught

there for four years (1975-1979) as a language arts and social

studies teacher in grades 4-6. His private life as a homosexual

did not adversely affect his job performance or his abilities as

a teacher.’ Indeed, Baker was recognized by DISD as an ex-

cellent teacher.'® And, when Baker left DISD in 1979 to return

* During the period he taught at DISD, Baker did engage in sexual conduct

with other males in private at his home. However, he was never sexually

attracted to any students and never had any sexual contact with them. He did

not advocate homosexuality to the students. Instead, he lived in fear and anxiety

of being “discovered” — because the DISD Superintendent had stated publicly

that he would fire any homosexual teachers. A school board member testified

that Baker would have been fired if there had even been a suspicion that he

had violated § 21.06. 3

Baker's evaluations included these comments: “Mr. Baker is an asset to

our school. He has done a good job for us this year. Potential of being an

excellent teacher” (1976) ... “An excellent teacher. He is well liked by

students, parents, and co-teachers” (1977) . . . “He has done a good job. He

is becoming an excellent teacher, a hard and dedicated worker” (1978). See

plaintiff's exh. 1.

30a

to Southern Methodist University to work on his master’

degree, the School District recommended him for the teachin,

fellowship which he was awarded.

Before completing his master’s degree, Baker became ac

tively involved in gay rights organizations. In 1979, he becam

Vice-President of the Dallas Gay Political Caucus and, 1

November of that year, this suit was filed. In 1980, the nam

of the organization was changed, and Baker became Presiden

of the Dallas Gay Alliance. He is also active on state an

national levels.''

Baker also testified that he will continue to engage in privat

homosexual conduct in violation of § 21.06, but has no inten

tion of doing so in public . . . that he does not desire or nee

psychiatric treatment . . . that § 21.06 does have serious ef

fects upon homosexuals because it makes them criminals. .

that this “stigma” encourages police harassment of homosex

uals and results in discrimination against homosexuals by em

ployers, apartment owners, domestic relations courts (in chil

custody matters), and others.

the plaintiff s experts

The two principal expert witnesses'* presented by the plain

tiff were Dr. Judd Marmor, a psychiatrist, and Dr. Willian

Baker travels frequently throughout the state in connection with thes

activities — particularly to Houston and Austin — and, consequently, woul

be subject to prosecution under § 21.06 in other cities besides Dallas.

Through another expert, Dr. Victor Furnish, a theologian and professc

of the New Testament at S.M.U. (plaintiff's exh. 3), the plaintiff introduce

a number of resolutions by church bodies condemning the repression c

homosexuality and urging repeal of statutes like § 21.06 (plaintiff's exh. 10)

Dr. Furnish testified that, in his expert opinion, the Bible does not condem

consensual homosexual conduct. He noted that there is no reference to homosex

uality in the Ten Commandments; that Christ made no statements abot

homosexuality; and that homosexuality was not a “prominent biblical concern

3la

Simon, a sociologist. Both had studied and written extensively

in the area of homosexuality and they are experts in this field.

Their qualifications were impeccable (see plaintiff's exhs. 2,

4) and their testimony established the following facts:

Section 21.06 makes “criminals” of a substantial number of

individuals in Texas. At least 5% of American males are “‘ex-

clusive” or obligatory homosexuals'* — who have no heterosex-

ual experiences and who have no desire to change. This means

that there are at least 500,000 exclusive homosexual males in

Texas. In addition, some 2-3% of the females in Texas (or,

approximately 130,000-200,000) are exclusive lesbians. '*

since it is the subject of only a few passages. Dr. Furnish interpreted the story

of Sodom as an “intended gang rape” of the strangers (the two angels in Lot’s

house), and thus a condemnation of violence and force, not consensual

homosexual conduct. He gave a similar interpretation to the two passages in

Leviticus—Leviticus 18:22: “Thou shalt not lie with mankind, as with woman-

kind: it is abomination.” Leviticus 20:13; “If a man also lie with mankind, as

he lieth with a woman, both of them have committed an abomination: they

shall surely be put to death; their blood shall be upon them”—and also noted

that neither the Bible nor these passages “say anything about female homosex-

uality.” However, Dr. Furnish conceded that other biblical scholars may dis-

agree with his opinions and that, in fact, many religions do condemn homosex-

uality.

‘Under the “Kinsey scale,”"—which begins with category 0 (exclusively

heterosexual)—category 6 is “exclusively homosexual” (no heterosexual ex-

periences, obligatory) and category 5 is “more or less exclusively homosexual”

(only incidental heterosexual experiences, with no desire to change, obligatory).

The figures given in this opinion are for categories 5 and 6, combined, since

these are considered “exclusive homosexuals.” However, among the 95% of

American males who are not “exclusive homosexuals,” 15-20% do engage in

some homosexual activites. For example, individuals whose heterosexual pref-

erence is predominant may, under certain circumstances (such as imprison-

ment), become involved in homosexual behavior. See Force on Homosexuality,

p. 2 (plaintiff's exh. 21) (Dr. Judd Marmor was a member of this Task Force

and helped write the report).

“These numbers may be even higher. According to the magazine article

introduced as Defendant Wade’s Exhibit |, the revolutionary Kinsey survey—

which revealed a surprising level of homosexual behavior not previously known

32a

These “exclusive homosexuals” did not choose to be

homosexuals. Obligatory homosexuality is not a matter of

choice: it is fixed at an early age—before one even begins to

participate in sexual activities—and only a small minority can

be changed or “cured,” if at all. Although there are different

theories about the “cause” of homosexuality, the overwhelming

majority of experts agree that individuals become homosexuals

because of biological or genetic factors, or environmental con-

ditioning, or a combination of these and other causes—and

that sexual orientation would be difficult and painful, if not

impossible, to reverse by psychiatric treatment.

Indeed, homosexuality is not a “disease” and it is not, in

and of itself, a mental disorder.'* Although society—and

courts—may still grapple with this question, in 1973 the Amer-

ican Psychiatric Association removed homosexuality from its

list of psychic disorders, resolving that “homosexuality per se

implies no impairment in judgment, stability, reliability or

general social or vocational capabilities” and that “in the

reasoned judgment of most American psychiatrists today,

homosexuality per se does not constitute any form of mental

disease” (plaintiff's exh. 5). In 1970, 1973 and 1975, respec-

tively, the American Anthropological Association, the Ameri-

and which has been confirmed by later studies—estimated that 10% of the

American men, and approximatiey 3-5% of the women, were exclusively

homosexual. This would mean that there may be over 650,000 exclusive

homosexual males and as many as 200-300,000 exclusive homosexual females

in Texas. Kinsey also estimated that 50% of all American males have had

homosexual experiences. Ennis, “What Do These Rugged Texas He-Men Have

in Common?,” Texas Monthly (June 1980), pp. 107-113, 209-226 (hereinafter

cited as “Texas Monthly”). The plaintiff testified that the statements made

about him in this article were basically correct.

‘* Dr. Marmor testified that homosexuality was not “contagious” or infectious:

that, although there was “some disagreement,” almost all American psychia-

trists feel that “homosexuality per se does not constitute any form of mental

disorder”; and that there is no respected medical literature to the contrary.

33a

can Bar Association,'° and the American Psychological Associ-

ation adopted similar resolutions (plaintiff's exhs. 6, 8, 9).

And, in 1975, even the American Medical Association resolved

(plaintiff's exh. 7):

“That the American Medical Association support in

principle repeal of laws which classify as criminal any

form of non-commerical sexual conduct between consent-

ing adults in private, saving only those portions of the

law which protect minors, public decorum, or the mentally

incompetent.”

Each of these resolutions urged the repeal of statutes which,

like § 21.06, prohibit only private sexual conduct by consent-

ing adults. If this were done—i.e., if there was a “decriminali-

zation” of homosexual acts in private by consenting adults—

this would not result in an increase in homosexuality. Jn some

countries (e.g., England, France, Holland, Finland), homosex-

ual conduct has been decriminalized for years, and there is no

greater incidence of homosexuality in those countries than in

the United States. Moreover, there have been no adverse side

effects in the 21 states that have now decriminalized consensual

sodomy between adults in private."’

‘The American Law Institute in its Model Penal Code recommended that

°The 21 state statues are attached to the plaintiff's “Motion that Judicial

Notice Be Taken of Certain State Sodomy Laws.” See also Rivera, “Our

Straight-Laced Judges: The Legal Position of Homosexual Persons in the United

States,” 30 Hastings L.J. 799, 950-51 (which indicates that 22 states have

passed such “decriminalization” statutes).

34a

There is no basis to assume that criminal laws (like § 21.06)

reduce the number of homosexuals. Persons do not choose

homosexuality, and only a small percentage of exclusive

homosexuals can be cured or changed. Criminal sanctions do

not deter homosexual sodomy—because “sex, next to hunger

and thirst, is the most powerful drive that human beings experi-

ence,” and it is unrealistic to think that such laws will force

total abstinence. Moreover, homosexuality has never been

stamped out by criminal laws; it has been common in almost

every type of society, at all economic levels and among all

ethnic and cultural groups.

In addition, the existence of these criminal laws, even if

they are not enforced (like § 21.06), does result in stigma,

emotional stress and other adverse effects. The anxieties caused

to homosexuals—-fear of arrest, loss of jobs, discovery, etc.—

can cause severe mental health problems. Homosexuals, as

criminals, are often alienated from society and institutions,

particularly law enforcement officials. They do suffer discrimi-

nation in housing, employment and other areas.

Neither Dr. Marmor nor Dr. Simon could find any legitimate

state interest to justify statutes like § 21.06. Although

“homophobia”—an exaggerated fear of homosexuals—may

exist among many heterosexuals, there is no rational basis for

this. The vast majority of sex crimes committed by adults upon

children are heterosexual, not homosexual.'* Homosexuals do

not have a criminal propensity simply because they are

homosexuals, any more than heterosexuals do. Homosexuals are

not ill or mentally diseased. And, homosexuality in society does

not adversely affect the growth and development of children.”

“See “Responding to Child Sexual Abuse: A Report to the 67th Session of

the Texas Legislature” (Sam Houston State Univ., Criminal Justice Center

1980) (introduced as plaintiff's exh. 12).

'’Dr. Marmor was cross-examined about a statement he made in the book

Sexual Inversion that “Psychiatric intervention is prophylactically indicated for

35a

Accordingly, both of the plaintiff's experts felt there was

no rational basis and no state interest that would justify § 21.06.

The Court credits the testimony and the opinions of Dr. Marmor

and Dr. Simon, particularly since they were uncontradicted—

except, as next discussed, by part of the testimony of the

defendants’ “expert.”

the defendants’ witnesses

The defendants presented Dr. James Grigson, a psychiatrist

primarily engaged in what he termed “legal psychiatry,” as

an expert witness. It was his opinion “that the members of

society, including the homosexual individuals, do benefit from

the law [against homosexual conduct] which we have here in

the state of Texas.” He did not explain how “members of

society” benefited from § 21.06, but testified specifically that

it was helpful to children and to homosexuals because:

(i) As to children, § 21.06 “primarily reinforces their own

super-ego or conscience” and thus fosters their “growth

children or adolescents who seem to be failing to make appropriate gender

role identifications.” He explained that sexual preference is fixed at an early

age (probably before age 6), and that “highly effeminate children"—who are

vilified by their peers and badly traumatized “in society that regards homosex-

uality as an undesirable behavioral deviation”"—may benefit from psychiatric

treatment. His explanation was credible, and his testimony as a whole clearly

establishe* >. he normal growth and development of children was not fostered

by laws w, make homosexual conduct illegal.

*’ Dr. Grigson explained that “legal psychiatry” revolves around “determina-

tion of competency, sanity, likelihood of making probation of defendants,

occasional civil cases involving psychiatric questions, occasional probate cases

involving competency of an individual to make a will.” He spends about 20%

of his time testifying on behalf of the District Attorney's office in criminal

cases, and appeared in over 100 criminal! cases in each of the past four years

(1977-1980), an average of three times per week. Dr. Grigson also teaches

psychiatry part-time at Southwestern Medical School in Dallas

36a

and development” by reinforcing “the culture of society's

norm pattern or expected pattern of behavior.”

(ii) As to homosexuals, “if sodomy was decriminalized,

‘+ would be harmfui to the homosexual, because it would

result in a lessening in terms of those individuals going

ahead and seeking help and resolving their problems.”

Dr. Grigson also testified that, in his opinion, homosexuals

“are less stable and have more pathological emotional mentai

illnesses than the general population as a whole” —and that

“homosexuality is an illness and a disease and that certainly

homosexual behavior is deviant behavior.” *'

This Court completely discounts Dr. Grigson’s testimony

and his opinions.” These opinions were not based upon any

independent research or supported by “any respected medical

or psychiatric literature.” Indeed, Dr. Grigson had personally

treated only 40-50 homosexuais in his 19-year practice (al-

though he had seen “a far larger number” just for the purpose

of doing evaluations on them) *— and he could not name any

According to Dr. Grigson, this is true of all homosexuals, not just exclusive

or obligatory homosexuals; “regardless of whether they want [heterosexual

relationships] or don’t want them, they ‘re still, if they are homosexual, suffering

from an illness.”

‘In making this determination, this Court has—in addition to the matters

discussed above—considered all of the circumstances uncer which the witness

testified. including his relationship to the District Attorney's office (see note

>) and the extent to which he was supported or contradicted by other credible

evidence. No weight was given to the fect that Dr. Grigson had been rep-

rimanded by the American Psychiatric Association on a collateral matter. See

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).

There was nothing to show that Dr. Grigson was not a competent psychiatrist,

however, he was not a creciive witness concerning homosexuality and laws

condemning homosexual conduct.

Dr. Grigson was tendered as an expert because of his experience in diag-

nosis and treatment “of sexual disorders or conditions relating to sexual prob-

lems.” including the diagnosis or treatment “of individuals who had problems

relating to homosexuality.”

37a

other psychiatrist who shared his opinion “that homosexuality

or private homosexual conduct between consenting adults

ought to be criminalized.’

Moreover. Dr. Grigson’s opinions were directly contrary to

those of the plaintiff's experts**—whose qualifications as ex-

perts in the field of homosexuality were outstanding and whose

testimony was very credible—and to positions adopted by vari-

ous medical and psychiatric associations. For example, Dr.

Grigson disagreed with the American Psychiatric Association

resolution that “homosexuality per se does not constitute any

form of mental disease”—and with the American Medical As-

sociation resolution supporting “repeal of laws which classify

as criminal any form of non-commercial sexual conduct be-

tween consenting adults in private.” And, even standing alone

Dr. Grigson’s “opinions” were flawed, inconsistent, and di-

rectly contrary to other credible evidence accepted by the Court:

(i) As to children, Dr. Grigson conceded that their

“normal growth and behavioral patterns” are reinforced

by their “parents, school, religion and churches”—but

did not even attempt an explanation as to why criminal

sanctions against homosexuality would also be needed to

reinforce children’s “super-ego OF conscience.”

Moreover, it is a fact under the evidence in this record

(Fed.R.Civ.P. 52) that “sexual preference is fixed at a

very early age,” probably betore the age of six, and that

people do not “choose” to become homosexuals. Thus,

there is no basis for Dr. Grigson’s opinion—which is

contrary to the medical literature and the opinions of

Dr. Grigson, again without any support, (1) disagreed with the plaintiff's

experts that “sexual preference is fixed at a very early age,” and thought that

many individuals changed their sexual preferences “around puberty” or even

“in later life.” and (ii) disagreed that homos-xuality “is a condition that Is

virtually unchangeable, at ieast in approximately 70% of the homosexual popu-

lation.”

38a

“most American psychiatrists today —that children might

become homosexuals or develop homosexual tendencies

unless homosexual conduct is illegal and punished by a

$200 fine.**

(11) As to homosexuals, the idea that criminal sanctions

will cause such anxieties in homosexuals that they will

seek psychiatric treatment and 5e “cured” is not only

preposterous**—it, too, is contrary to the facts established

by the credible evidence in this record (Fed.R.Civ.P. 52);

persons do not choose to be homosexuals; most “exclusive

homosexuals” do not Want to be changed and do not seek

any treatment; the “cure rate” for all homosexuals will,

at best, be only 30%;*’ and criminal! laws simply do not

reduce the number of homosexuals in society.

In contrast to Dr. Grigson, neither of the two defendants—

District Attorney Henry Wade and City Attorney Lee Holt—

could even attempt to explain how § 21.06 furthers the state's

interests in protecting decency, the welfare of society, procre-

ation, morality, or any other interest. Wade testified (by depo-

sition):

“Dr. Grigson did testify that it “cou:d be extremely harmful in terms of

their sexual identification” for children to observe “homosexuals behaving in

a sexual way.” However, this could be prohibited—if it is not already—by

specific, limited statutes dealing with sexual abuse and children. See Tex.Penai

Code Ann. §§ 21.09-21.11 (Vernon 1974).

**Even the most severe criminal penaities—including death in some coun-

tries—have not ended homosexuality. The maximum penalty for homosexual

conduct under § 21.06 is only a $200.00 fine—and Dr. Grigson did think

“there would be more people who would be seeking treatment if the penalties

were greater.”

* The Task Report on Homosexuality p. 5 (plaintiff's exh. 21) indicates that

“the current literature suggests that perhaps one-f.th of those exclusively

homosexual individuals who present themselves for treatment are enabled to

achieve some heterosexual interests and competence if they are motivated to

do so.”

39a

.. Can you explain to me how this law furthers the

state interest of decency, if any, by prohibiting private

homosexual conduct but permitting private heterosexual

conduct that constitutes deviate sexual conduct, as defined

by the statute?

“A. No.

“Q. You also indicate . . . that one of the purposes of

this law is to further the welfare of society. And what I'd

like to know is what kind of societal welfare is furthered

by a law that intrudes into the bedroom of consenting

sexual adults?

“A. I don’t know of any. There may be some.

“Q. And I take it since you don’t know of any, you

don’t know how it’s furthered by the statute?

“A. No.

“Q. Do you know how this statute furthers the welfare

of society by prohibiting homosexual sodomy but permit-

ting heterosexual sodomy’?

“A. No.

“Q. And can you explain to me how this statute furthers

the state interest, if any, in procreation by permitting

heterosexual sodomy, but prohibiting homosexual

sodomy”?

“A. I didn’t even know it permitted either one.

“Q. What it does on its face for your information, is

prohibits private deviate sexual intercourse between per-

sons of the same sex, but by its very language and also

by your answers to discovery, you’ve admitted that it

does not prohibit private deviate sexual intercourse by

members of a different sex.

“A. I don’t think procreation is involved in either one

of them; is it?

404

“Q. How does this law turther morality of society by

prohiviting private‘homosexual sodomy but permitting

private heterosexual sodomy?

“A. I don't really know.”

City Attorney Holt also testitied (by deposition) that he had

no knowledge of any way in which “private consenting

homosexual conduct frustrates procreation” or protects the

“morals” of society.

But both Wade and Holt feit the legislature “must” have

had soine public interest in mind or they would not have passed

\ § 21.06. District Attorney Wade testified:

“Q. In your candid opinion with 30 years experience

as a prosecutor, public prosecutor in Dallas County, do

you know of -any public interest, any public interest,

period, furthered by this statute?

“A. Well, | think the legislature wouldn't have passed

it if there wasn’t a public interest in it.

“Q. You also indicate in your answers that one legally,

or one state interest that is furthered by the statute is one

of ‘morals’. What state interest, if any, is there in the

morality of private sexual conduct that you know of?

“A. The only thing I know, the legislature, after hear-

ings, passed a law against it. I assume they had some

public interest in it or they wouldn't have passed it.”

Similarly, City Attorney Holt testified that the “legitimate in-

terest” would have “to be tor others to say because | think it

has to be determined trom the intent of the legislature and

those to whom they looked for advice in passing these laws.”

However, no legislative history 1s available (see Appendix

A) to assist the Court in determining the intent of the legislature

dla

in passing § 21.06—1.e., why the penalties against orat and

anal sodomy between males and females were repealed, but

those against private and consensual homosexual conduct were

retained. Contrary to the testimony of defendants Wade and

Holt, there is no evidence (indeed, even no indication) that

any of the interests advanced to support § 21.06—‘morality,

decency, health, welfare, safety, and procreation”-—were con-

sidered by the legislature when this statute was passed as part

of the general revision of the Penal Code.

The same interests were advanced by the state to justify-the

predecessor sodomy statute, Article 524, which condemned

all sodomy-—-whether by married couples, single males and

females, or homosexuals.** If these interests (morality, de-

cency, etc.) no long justified the prohibition against heterosex-

ual sodomy in 1974 when § 21.06 was enacted. how did they

continue to justify the condemnation of private homosexual

conduct? And, if they did, were they so weakened that they

no longer warranted a punishment of imprisonment (2-15

years}, but only a fine of $200 or iess?

In fact, the legislature did not even condemn al/ homosexual

conduct by § 21.06. That staute, as passed in 1974, prohibited

only contact between the genitals of one person and the mouth

or anus of another of the same sex. It did not prohibit homosex-

uals from kissing or sexually stimulating their partner with

hands and fingers. Nor did § 21.06 condemn the use of an

artificial device, such as a vibrator or dildo (unti! an amendment

in 1981 which also prohibited “the penetration of the genitals

‘See Dawson vy. Vance, 329 F.Supp. 1320 (S.D.Tex. 1971). And, these

same State interests (morality, decency, etc.) were the justification for the first

Texas sodomy statute—even though it prohibited only anal sodomy and did

not condemn ors. sex by homosexuals or heterosexuals. See Pruett v. State,

463 S.W.2d 191 (Tex.Cr.App.—1!971), appeal dismissed for want of substan-

tial federal question, 402 U.S. 902, 91 S.Ct. 1379, 28 L.Ed.2d 643 (1971).

Prindle v. State, 3 Tex.Cr.R. S551, 21 S.W. 360 (1893).

42a

or the anus of another person with an object” ). Because these—

and other puzzling inconsistencies in the Penal Code*’——it

seems likely that political considerations motivated the legis-

lature in passing § 21.06.“

The Law

The following discussion cosntitutes this Court’s conclu-

sions of law under Fed.R.Civ.P. 52(a).

The Right of Privacy

The “right of privacy” protects certain fundamental per-

sonal liberties from undue interference by government. Carey

v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52

L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct.

“See Appendix A. Bestiality is prohibited only if it occurs in public; thus,

under the Texas Penal Code, one may engage in private sexual acts with “an

animal or fowl,” § 21.07 (Public Lewdness)}—but may not engage in private

oral or anal sex with a consenting adult of the same sex, § 21.06 (Homosexual

Conduct). And for seven years after 1974, a 17-year-old boy could have been

prosecuted as a felon “for fondling a 16 year-old girl at her invitation in private,

but not for engaging in sexual intercourse with her’-—because it is a defense

to statutory rape if the defendant is “not more than two years older than the

victim,” § 21.10, but there was no such defense to “indecency with a child,”

§ 21.11, until this section was amended in 1981. Tex.Penal Code Ann. § 21-11

(Practice Commentary).

“ As discussed in Appendix A, it has been suggested that members of the

Texas House of Representatives “decided to support § 21.06, as proposed,

fearing a backlash against the entire Penal Code [revision] should [private

homosexual conduct] be decriminalized.” Similarly, in New York v. Onofre.

S1 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert. denied,

451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981), the court emphasized

“the statement contained in the memorandum prepared by the chairman of the

Temporary Commission: ‘It would appear that the Legislature's decision to

restore the consensual sodomy offense was, as with adultery. based largely

upon the premises that deletion thereof might ostensibly be construed as legis-

lative approval of deviate conduct.’ (434 N.Y.S.2d at 951-52, 415 N.E.2d

at 941) (empliasis added).

43a

705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S.

438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Geor-

gia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14

L.Ed.2d 510 (1965). Although Supreme Court opinions have

found various constitutional provisions to be the source of this

right of privacy‘'—the first amendment’s freedoms of associ-

ation and of speech; the due process and equal protection

clauses of the fourteenth amendment; the fourth and ninth

amendments; the “penumbras” of specific guarantees of the

Bili of Rights—its existence is now “an established part of

our constitutional jurisprudence.” Dike v. Schooi Board, 650

F.2d 783 (Sth Cir. 1981).

It is clear that the right of privacy protects individual deci-

sions concerning marriage,“ procreation,’’ contraception, “

“See, e.g., Griswold v. Connecticut, 381 U.S. at 484-85, 85 S.Ct. at

1681-82, 14 L.Ed.2d at 514-15 (Douglas, J.) (right of privacy found in “penum-

bras’ of specific guarantees of the Bill of Rights); id. at 486, 492, 85 S.Ct.

at 1686, 14 L.Ed.2d at £16, 519 (Goldberg, J., joined by Warren, C.J., and

Brennan, J.) (fundamental personal rights are protected by the concept of

liberty in the Fourteenth Amendment's due process clause; Ninth Amendment

shows framers’ belief that fundamental rights exist that are not enumerated in

the Bill of Rights); id. at 500, 85 S.Ct. at 1690, 14 L.Ed.2d at 524 (Harland,

J., concurring) (Fourteenth Amendment's due proces: clause protects, of its

own force, certain basic values); Carey v. Population Services, 431 U.S. at

684, 97 S.Ct. at 2015, 52 L.Ed.2d at 684 (due process clause protects liberty

interests in zones of personal privacy); Roe v. Wade, 410 U.S. at 153, 93

S.Ct. at 726, 35 L.Ed.2d at 177 (right of privacy founded in Fourteenth

Amendment's concept of personal liberty and restrictions upon state action),

nm + v. School Board, 650 F.2d at 786. note 1.

* See

thlocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618

(1978); Loving v. Virginia, 388 U.S. 1,87S.Ct. 1817, 18 L.Ed.2d 1010 (1967).

“See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct.

791, 39 L.Ed.2d 52 (1974); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct.

1110, 86 L.Ed. 1655 (1942).

“ See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965); Eisenstadt v. Baird, 405 U.S. 438, $2 S.Ct. 1029, 31 L.Ed.2d

349 (1972); Carey v. Population Services, 43! U.S. 678, 97 S.Ct. 2010, 52

L.Ed 2d 675 (1977).

44a

abortion,” and family relationships“ — and that any govern-

ment regulation upon such fundamental rights “may be justified

only by a compelling state interest and must be narrowly drawn

to express only the legitimate state interests at stake.” Dike v.

School Board, 650 F.2d at 786-87. However, the “outer limits”

of the right of privacy have not been established. Carey v.

Population Services, 431 U.S. at 684, 97 S.Ct. at 2015. De-

velopment of this area of the law has proceeded on almost a

case-by-case basis," and there are still other fundamental per-

sonal liberties — besides those involved in past Supreme Court

decisions — that are protected by the right of privacy. *

Does the right of privacy extend to private sexual behavior

between consenting adults? In particular: Can a husband and

wite be subjected to criminal prosecution for engaging in oral

“See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973):

Bellotti v. Baird, 443 U.S. 622, 99 §.Ct. 3035, 61 L.Ed.2d 797 (1979).

“See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52

L.Ed.2d 531 (1977).

“In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965), the right of privacy was officially recogaized, but the opinion (by

Justice Douglas) was unclear whether the prohibition on state regulation of a

married couple's access to the use of contraceptives was limited to the marital

relationship, or whether it was the intimacy and choice of individuals, them-

selves, that was protected. Then, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct.

1029, 31 L.Ed.2d 349 (1972), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,

35 L.Ed.2d 147 (1973), which guaranteed birth control devices and abortions

for unmarried persons, held that the privacy protected is “the right of the

individual, married or single.” And, Planned Parenthood v. Danforth, 428

U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), and Carey v. Population

Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), continued

the pnirciple that individual decisions were protected, and that the right of

privacy was not limited to the marital relationship. The cases cannot be limited

to their particular fact situations since “the outer limits of this aspect of privacy

have not been marked by the Court” (431 U.S. at 684, 97 S.Ct. at 2015).

“See. é.g., Stanley v. Georgia, 394 U.S. at 564, 89 S.Ct. at 1247 (possession

of pornographic printed or filmed matter in the privacy of one’s own home);

Dike v. School Board, 650 F.2d at 787 (right of school teacher to breastfeed

her child during duty free lunch periods).

4Sa

or anal sex in the privacy of their own home? Can a state law

constitutionally prohibit unmarried males and females trom

engaging in oral or anal sodomy or, indeed, any extramarital

sexual relations? Can a homosexual be prosecuted for sexual

conduct with another adult homosexual, consensually and in

private?

The Supreme Court has not answered these questions in any

opinion. Indeed, it has refused to do so on several occasions,

including these three cases: Buchanan v. Batchelor, 308

F.Supp. 729 (N.D. Tex. 1970), rev'd on other grounds sub

nom, Wade v. Buchanan, 401 U.S. 989, 91 S.Ct. 1222, 28

L.Ed.2d 526 (1971); Doe v. Commonwealth's Atiorney, 403

F.Supp. 1199 (E.D. Va. 1975), summary affirmance without

opinion, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976):

and New York v. Onofre, 51 N.Y .2d 476, 434 N_Y.S.2d 947,

415 N.E.2d 936 (N.Y. 1980), cert. denied, 451 U.S. 987,

101 S.Ct. 2323, 68 L.Ed.2d 845 (1981).*

Buchanan v. Batchelor

In Buchanan v. Batchelor, 308 F.Supp. 729 (N.D. Tex.

1970), a three-judge panel (Goldberg, Circuit Judge; Hughes

and Taylor, District Judges) held that the Texas sodomy statute

(Article £24) — which then prohibited a// oral and anal sex,

whether by heterosexuals or homosexuals — was unconstitu-

tional because it violated the right of privacy of married couples

by subjecting them to felony prosecution for private acts of

“Other instances include Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1975)

(en bane). cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed. 2d 585 (1976):

Canfield v. Oklahoma, 506 P.2d 987 (Okla. Cr. App. 1973), dism’d for want

of substantial federal question, 414 U.S. 991, 94 S.Ct. 342, 38 L.Ed.2d 230

(1973): Pruett v. Texas, 463 S.W.2d 191 (1971), dism’d for want of substantial

federal question. 402 U.S. 902, 91 S.Ct. 1379, 28 L.Ed. 2d 643 (1971).

46a

sodomy, “an intimate relation of husband and wife.” The

court stated:

“Sodomy is not an act which has the approval of the

miajority of the people. In fact such conduct is probably

offensive to the vast majority, but such opinion is not

sufficient reason for the State to encroach upon the liberty

of married persons in their private conduct. Absent some

demonstrable necessity, matters of (good or bad) taste

are to be protected from regulation. . . .” (308 F.Supp.

at 733).

The court permanently enjoined the defendant Wade from en-

forcing Article 524, which “was declared void on its face for

unconstitutional overbreadth.” However, this decision was

prior to Eisenstadt, and the court indicated that the right of

privacy did not extend to private or public homosexual conduct

because neither involved “private acts of the marital relation”

(308 F.Supp. at 736).

On appeal, the Supreme Court did not reach the merits, 401

U.S. 989, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971), but re-

manded the case for consideration as to whether abstention

was proper in light of its then-recent decision in Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).*

However, the three judge panel had specifically noted that

“there have been no prosecutions under the Act of married

persons for private acts of sodomy”; that it was unciear from

“ Federal courts must not enjoin pending state criminal prosecutions except

under extraordinary circumstances — such as a “great and immediate” threat

to the plainutf’s constitutional rights that cannot be eliminated by his defense

against a single prosecution (401 U.S. at 45-47, 91 S.Ct. at 751-752), or bad

faith and harassment through repeated prosecutions or threats of prosecution

(401 U.S. at 47-50, 91 S.Ct. at 752-753). Dombrowski v. PAster, 380 U.S.

479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

47a

the record “whether there have been prosecutions of homosex-

uals for private acts of sodomy”: that no changes were pending

against the intervenors, a married couple (the Gibsons) and a

homosexual male (Strickland); but that the homosexual plain-

tiff, Buchanan, “had twice been arrested and charged” with

acts of sodomy with another male in public restrooms (308

F.Supp. at 730-31).

Therefore, even if a Younger abstention problem was pre-

sented in Buchanan by the homosexual plaintiff, who sought

an injunction against two pending state prosecutions for public

offenses — none was presented by either of the intervenors,

the married couple (who had prevailed in their right of privacy

claim) and the homosexual Strickland (who had not prevailed

in his). ;

Doe v. Commonwealth's Attorney

Next, in Doe v. Commonwealth's Attorney, 403 F.Supp.

1199 (E.D. Va. 1975), a three-judge panel upheld the constitu-

tionality of a Virginia criminal statute which prohibited oral

or anal sodomy by married couples, by unmarried males and

females, and by homosexuals. The majority opinion rejected

the contention that the right of privacy extends to private

homosexual conduct between consenting adults. However,

Judge Merhige’s dissenting opinion concluded that, under a

proper analysis of the Supreme Court decisions, the nght of

privacy does protect all private consensual sexual conduct

between adults, whether heterosexual or homosexual:

“| view those cases [Roe v. Wade, Griswold v.

Connecticut] as standing for the principle that every indi-

vidual has a right to be free from unwarranted governmen-

tal intrusion into one’s decisions on private matters of

48a

intimate concern. A mature individual's choice of an adult

sexual partner, in the privacy of his or her own home,

would appear to me to be a decision of the utmost private

and intimate concern. Private consensual sex acts between

adults are matters, absent evidence that they are harmful,

in which the state has no legitimate interest.

“Griswold, supra, in its context, applied the right of

privacy in sexual matters to the marita! relationship.

Eisenstadt, supra, however, clearly demonstrates that the

right to privacy in sexual relationships is not limited to

the marital relationship. Both Roe, supra, and Eisenstadt,

supra, cogently demonstrate that intimate personal deci-

sions Or private matters of substantial importance to the

weli-being of the individuals involved are protected by

the Due Process Clause. The right to select consenting

adult sexual partners must be considered within this cat-

egory. The exercise of that right, whether heterosexual

or homosexual, should not be proscribed by state regula-

tion absent compelling justification.” (403 F.Supp. at

1203-04) (Merhige, dissenting).

The Supreme Court, without writing an-opinion, summarily

affirmed che snajority decision in Commonweaith's Attorney,

425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976).*!

However, this summary affirmance does not resoive the

issues presented in this case. A summary affirmance is “not

of the same precedential value as would be an opinion of the

{Supreme] Court treating the same question on the merits.”

Edeiman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359,

39 L.Ed.2d 662 (1974); Hicks v. Miranda, 422 U.S. 332, 95

*' Justices Brennan, Marshall, and Stevens would have noted probable juris-

diction and set the case for oral argument. 425 LS. at 901, 96S.Ct. at 1489.

49a

S.Ct. 228:, 45 L.Ed.2d 223 (1975).° A summary affirmance

does not prevent “lower courts from coming to opposite con-

clusions except on “the precise issues presented and necessarily

determined by those actions.” //linois State Board v. Socialist

Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230

(1979); Mandel v. Bradley, 432 U.S. 173, 176,97 S.Ct. 2238,

2240, 53 L.Ed.2d 199 (1977). Nor does it bind a lower court

when “doctrinal developments” cast substantia! doubt upon

the summary affirmance. As summarized in Lecates vy. Justice

of the Peace, 637 F.2d 898 (3rd Cir. 1980):

“. . . In short, under Mandel and Illinois State Board,

the precedential value of a summary disposition by the

Supreme Court is to be eonfined to the exact facts of the

case and to the precise question posed on the jurisdictional

Statement. Furthermore, indications that there have been

doctrinal developments since the summary action will

relieve a lower court from the duty to adhere to u summary

disposition” (637 F.2d at 904).

Both factors are present here. The jurisdictional statement

in Commonwealth's Attorney did present the same “right of

privacy” issue as this case,** but — since the Virginia statute

* As explained in Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42

L.Ed.2d 521 (1975):

“When we summarily affirm without an opinion . . . we affirm the

judgment but not necessarily the reasoning by which it was reached. An

unexplicated summary affirmance settles the issues for the parties, and

is not to be read as a renunciation by this Court of doctrine previously

announced in our opinions after full argument” (419 U.S. at 391-92, 95

S.Ct. at 540-41).

“The question presented in the Commonwealth's Attorney Jurisdictional

Statement was this:

“Whether Virginia Code § 18.1-212, as applied to sexual activity

between consenting adults in private. violates appellants’ constitutional

SO0a

proscribed all sodomy, both heterosexual and homosexual —

it did not present the “equal protection” claim involved in this

case (that § 21.06 invidiously discriminates against homosex-

uals by prohibiting sodomy by them, but not by heterosexu-

als).** Moreover, even as to the right of privacy issue, two

“doctrinal developments” have indicated that little, if any,

weight should be given to the summary affirmance in Common-

wealth’s Attorney: (i) the decision in Carey v. Population

Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 ( 1977);

and (ii) the denial of certiorari in New York v. Onofre, 51

N_Y.2d 476. 434 N.Y.S.2d 947, 415 N.F.2d 936 (1980), cert.

denied. 451 U.S. 987. 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981).

In Carey v. Population Services, decided less than 15 months

afier the summary affirmance in Commonwealth's Attorney,

the Supreme Court stated that:

the Court has not definitively answered the dif-

ficult question whether and ‘o what e?.tent the Constitution

prohibits state statutes regulating [private consensual sex-

ual] behavior among adults, . . . and we do not purport

to answer that question now” (431 U.S. 688 at n.5, 97

S.Ct. 2018 at n.5; 431 U.S. 694, n.17, 97 S.Ct. 2021,

a. 17);

Carey was a plurality decision. However, Justice Brennan

made this comment twice in the opinion — first in footnote 5

rights to privacy, to aue process of law, and to the equal protection of

the Jaws. under the First. Fourth, Fifth, Ninth and Fourteenth Amend-

ments to the Constitution.”

*Under the Virginia sodomy statute. homosexuals were not treated differ-

ently than married or unmarmied heterosexuals. Although the question presented

in Commonwealth's Attorney refers to “equal protection,” the Jurisdictional

Statement makes it clear that this merely referred to one of the several constitu-

tional sources of the “right of privacy” (see note 31), and that no separate

equal protection claim was involved.

Sla

of Part II (431 U.S. at 688. 97 S.Ct. at 2018), which was

joined by six Justices (Brennan, Stewart, Marshall, Blackmun,

Stevens and White): second in footnote 17 of Part IV (431

U.S. at 694, 97 S.Ct. at 2021), which was joined by four

Justices (Brennan, Stewart, Marshall, and Blackmun).* Thus.

six Justices in Carey agreed that the summary affirmance in

Commonwealth's Attorney did not definitively answer the dif-

ficult question of whether the right of privacy extends to private

sexual conduct between consenting adults.”

New York v. Onofre

Finally, the Supreme Court denied certiorari in a case whicn

— contrary to Commonwealth's Attorney — held that the right

of privacy did extend to private sexual conduct between adults:

New York v. Onofre, 434 N.Y.S.2d 947, 415 N.E.2d 936

“Justice White's concurring opinion stated that he did not regard Part III

of the majority opinion “as declaring unconstitutional any state law forbidding

sexual relations” (431 U.S. at 702, 97 S.Ct. at 2025).

“ This conclusion is supported by the dissent of Justice Rehnquist in Care

He disagreed, and could not “let pass without zomment,” the statements in

footnotes 5 and 17:

“While we have not ruled on every conceivable regulation affecting

such conduct the facial constitutional validity of criminal statutes prohibit-

ing certain consensual acts has been ‘definitively’ established. Doe v

Comm. awealth's Attorney, 425 U.S. 901 [96 S.Ct. 1489. 47 L.Ed.2d

751] (1976). See Hicks v. Miranda, 422 U-S. 332, 343-344 [95 S.Ct

928]. 2288-2289, 45 L.Ed.2d 223] (1975).” (431 US. 718 at n.2, 97

S.Ct. 2033 at n.2)

No one joined the Rehnquist dissent — and, despite his comrocits, six Justices

agreed that the Court “has not definitively answered the difficult question

whether and to what extent the Constitution prohibits state statutes regulating

such [private consensual sexual] behavior among adults” (431 U.S. 688 atn.5.

97 S.Ct. 2018 at n.5)

S2a

(N.Y. 1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68

L.Ed.2d 845 (1981).

The New York sodomy statute prohibited oral and anal sex

between homosexuals and between unmarried males and

females; it did not condemn sodomy between persons who

were married to each other. After reviewing the Supreme Court

decisions, the New York Court of Appeals held that the right

of privacy does extend to private sexual conduct between con-

senting adults and that the statute violated this right of the

defendants®’ (as well as their rights of equal protection):

‘. , Because the statutes are broad enough to reach

noncommercial, cloistered personal sexual conduct of

consenting adults and because it permits the same conduct

between persons married to each other without sanction,

we agree with defendar’s’ contentions that it violates both

their right of privacy and the right to equal protection of

the laws guaranteed them by the United States Constitu-

tion.

“In light of these decisions, protecting under the cloak

of the right of privacy individual decisions as to in-

dulgence in acts of sexual intimacy by unmarried persons

and as to satisfaction of sexual desires by resort to material

condemned as obscene by community standards when

“In Onofre, three cases were consolidated for decision. One involved anal

sodomy between two consenting homosexual! males at the defendant's home

(Onofre). one involved oral sodomy between two males in an automobile

(People v. Goss), and one involved oral sodomy between a female (Swear)

and a male in an automobile. Neithcr of the two incidents occurring in cars

took place “in public.” (434 N.Y.S.2d at 948, 949 n.2, 415 N.E.2d at 937,

938 n.2).

“ Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349: Carey

v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675: Stanieyv

v. Georgia, 394 U.S. 557. 89 S.Ct. 1243, 22 L.Ed.2d 542.

S3a

done in a cloistered setting, no rational basis appears for

excluding from the same protection decisions — such as

those made by defendants before us — to seek sexual

gratification from what at least once was commonly re-

garded as ‘deviant’ conduct, so long as the decisions are

voluntarily made by adults in a noncommercial, private

setting.” (434 N.Y.S.2d at 949, 951, 415 N.E.2d at 938,

940).

The Supreme Court's denial of certiorari in Onofre, 451 U.S.

987, 101 S.Ct. 2323, 68 L.Ed.2d 845 is of no precedential

value; it does not constitute a decision on the merits of the

constitutional questions. Rosenberg v. United States, 344 U.S.

889, 73 S.Ct. 134, 97 L.Ed. 687 (1952); Brown v. Allen, 344

U.S. 443, 492, 73 S.Ct. 397, 439, 97 L.Ed. 469 (1953).

However, the lower court decisions in Onofre and Common-

wealth’s Attorney are inconsistent: the constitutional right of

privacy extends to private sexual conduct between consenting

adults in New York, but it does not in Virginia.*” And, there

is no Supreme Court opinion that determines which approach

is constitutionally correct — and which answers “the difficult

question whether and to what extent the Constitution prohibits

State statutes regulating [private consensual sexual] behavior

among adults.” Carey v. Population Services, 431 U.S. at 688

n.5, 97 S.Ct. at 2018 n.5.

Therefore, despite the summary affirmance in Common-

wealth’s Attorney, the question of whether the Constitution

permits the use of a state statute (such as § 21.06) to prohibit

* Possibly the Supreme Court’s actions can be resolved by the fact that

Onofre involved an equa! protection claim, while Commonwealth's Attorney

did not (see note 44). If so, this would confirm this Court’s decision that

§ 21.06 violates the plaintiff's right to equal protection because it discriminates

against homosexuals by prohibiting sodomy by them, but not by heterosexuals.

S4a

private consensual homosexual conduct is a proper one for

consideration by this Court.~’

private homosexual conduct is protected

This Court agrees with the analysis of the right of privacy

by the dissenting opinion of Judge Merhige in Doe v. Common-

wealth’s Attorney, 403 F.Supp. 1199, and by the majority

opinion in New York v. Onofre, 51 N.Y .2d 476, 434.N.Y.S.2d

947, 415 N.E.2d 936.

Every individual has the right to be free from undue inter-

ference by the state in important and intimate personal matters.

Decisions concerning a person’s sexual needs or desires are

“in a field that by definition concerns the most intimate of

human activities and relationships.” Carey, 431 U.S. at 685,

97 S.Ct. at 2016. The right of two individuals to choose what

type of sexual conduct they will enjoy in private is just as

personal, just as important, just as sensitive — indeed, even

more so — than the decision by the same couple to engage in

sex using a contraceptive to prevent unwanted pregnancy.

Carey, 431 U.S. at 685, 687, 97 S.Ct. at 2016, 2017. “If the

right of privacy means anything, it is the right of the individual,

married or single. to be free of unwarranted government intru-

sion into matters fundamenially affecting a person” as the

decision to engage in private sexual conduct with another con-

senting adult. Eisenstadt, 405 U.S. at 453, 92S.Ct. at 1038.

This is true whether it is a husband and wife choosing to

engage in oral or anal sex in the privacy of their bedroom —

or whether it is an unmarried male and female privately engag-

“The same conclusion was reached in New York v. Onofre, 434 N.Y.S.2d

at 954, 415 N.E 2d at 943. However, Judge Porter reached a different conclu-

sion in Childers v. Dallas Police Dept., 513 F.Supp. 134 (N.D. Tex. 1981),

aff d without opinion, 669 F.2d 732 (Sth Cir. 1982). See the discussion of

Childers in Appendix A.

SSa

ing in extramarital sexual relations of their own choice.*' And,

it ts equally true as to a homosexual choosing to engage in

sodomy in private with a consenting adult of the same sex.~

The right of privacy, therefore, dces extend to private sexual

conduct between consenting aduits (whether heterosexual or

homosexual) — and any regulation of this fundamental right

must be justified by a compelling state interest.

The right of privacy is not, as defendants contend, “limited

to only two aspects of sexual behavior” — marital intimacy

(by virtue of Griswold v. Connecticut) and procreative choice

(by reason of Eisenstadt v. Baird). Indeed, Eisenstadt makes

it clear that the right of privacy in sexual matters 1s not limited

to married couples:

“If under Griswold the distribution of contraceptives to

married persons cannot be prohibited, a ban on distribution

to unmarried persons would be equally impermissible. It

is true that in Griswold the right of privacy in question

inhered in the marital relationship. Yet the marriage

couple is not an independent entity with a mind and heart

of its own, but an association of two individuals each

with a separate intellectual and emotional makeup. If the

right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally

‘Although these issues are not directly presented :n this case, it seems

obvious that the right of privacy would not extend to private homosexual

conduct if it did not extend to private heterosexual conduct.

“From the testimony of the plaintiff. Donald F. Baker, about his life --

the reluctant, painful recognition of his homosexuality; his disgust and self-

loathing and fear; his isolation and suffering; and the eventual reconciliation

of his “exclusive homosexuality” with his devout religicus beliefs and family

values — it is evident that Baker’s resulting decisions concerning his sexual

needs and desires are of the most personal, intimate and important concern

(just as they are for heterosexuals).

56a

affecting a person as the decision whether to bear or beget

a child. See Stanley v. Georgia, 394 U.S. 557 [89 S.Ct.

1243, 22 L.Ed.2d 542] (1969). . . .” (405 U.S. at 453,

92 S.Ct. at 1038).

Moreover, in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.

1243, 22 L.Ed.2d 542 (1969), the right of privacy invoived

neither “marital intimacy” or “procreative choice.” Thee, the

defendant possessed films and printed material which were

pornographic. As discussed in New York v. Onofre:

‘In Stanley the court found violative of the individual's

right to be free from governmental interference in making

important, protected decisions a statute which made crim-

inal the possession of obscene matter within the privacy

of the defendant’s home. Although the material itself was

entitled to no protection against government proscription

(Roth v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1

L.Ed.2d 1498]), the defendant’s choice to seek sexual

gratification by viewing it and the effectuation of that

choice within the bastion of his home, removed from the

public eye, was held to be blanketed by the constitutional

right of privacy.” (434 N.Y.S.2d at 950, 415 N.E.2d at

939).

See Doe v. Commonwealth’ s Attorney, 403 F.Supp. at 1204-05

(Merhige, J., dissenting). :

Under the Stanley and Eisenstadt extensions of the right of

privacy,” the plaintiff could possess and enjoy in private porno-

‘Contrary to defendants’ arguments, Stanley v. Georgia was not based

solely upon a first amendment right to receive information. As the Court stated:

“| Moreover, in the context of this case — a prosecution for mere

possession of printed or filmed matter in the privacy of a person’s own

S7a

graphic material — movies, videotapes, magazines, books,

etc. — which graphically depicts sexual activities by homosex-

uals. It seems ludicrous to attempt to draw some constitutional

distinction, as defendants do, between his right to “seek sexual

gratification by viewing” such obscene material, and his right

to seek sexual gratification with a consenting adult partner in

private.

The right of privacy does extend to private, voluntary, inti-

mate relationships — between husband and wife, between

unmarried males and females, between homosexuals.“ Ac-

home — that right takes on an added dimension. For also fundamental

is the right to be free, except in very limited circumstances, from unwanted

government intrusions into one’s privacy.” (394 U.S. at 564, 89 S.Ct.

at 1247).

However, there is no right of privacy “to watch obscene movies in places of

public accommodation.” Paris Adult Theater I v. Slaton, 413 U.S. 49, 67, 93

S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973).

“Other courts have reached the same conclusion, extending the right of

privacy to private sexual conduct between consenting adults. See State v.

Saunders, 75 N.J. 200, 381 A.2d 333 (1977); State v. Pilcher, 242 N.W.2d

348 (lowa 1976). Cf. Nemetz v. Immigration & Naturalization Service, 647

F.2d 432 (4th Cir. 1981); Lesbian Gay Freedom Day Committee, Inc. v.

Immigration & Naturalization Service, 541 F.Supp. 569 (N.D. Cal. 1982);

Gay Law Students Ass'n v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 156 Cal.

Rptr. 14, 595 P.2d 592 (1979); Commonwealth v. Bonadio, 490 Pa. 91, 415

A.2d 47 (1980) (sodomy statute declared constitutionally infirm on equal pro-

tection grounds, privacy issue not reached). See also Doe v. Commonwealth's

Attorney, 403 F.Supp. 1205 n.3 (Merhige, J., dissenting).

But some other courts have refused to do so, although some of these involve

the use of force or offenses with minors. See Lovisi v. Slayton, 539 F.2d 349

(4th Cir. 1975) (en banc}, cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50

L.Ed.2d 585 (1976); Wilson v. Swing, 463 F.Supp. 555 (M.D.N.C. 1978);

State v. Santos, 413 A.2d 58 (R.1. 1980); Neville v. State, 220 Md. 364, 430

A.2d 570 (1981); State v. Elliott, 89 N.M. 305, 551 P.2d 1352 (1976), later

appeal, State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977) (enforcing earlier

opinion); State v. McCoy, 337 So.2d 192 (La. 1976).

And, at least one court has recognized “that there is substantial academic

comment which argues that the choice to engage in homosexual action is a

S8a

cordingly, homosexual conduct in private between consenting

adults is protected by a fundamental right of privacy. Any

state restriction upon that right must be justified by some

compelling state interest.

no State interest

The right of privacy is not absolute. But any regulation ot

this fundamental right “may be justified only by a compelling

state interest and must be narrowly drawn to express only the

legitimate state interests at stake.” Dike v. School Board, 650

F.2d at 787.

Obviously, the state has a compelling interest in regulating

some types of sexual conduct — rape, indecent acts in public,

sex offenses involving minors, etc. New York v. Onofre, 434

N.Y.S.2d at 952. 415 N.E.2d at 941; Dee v. Commonwealth's

Attorney, 403 F.Supp. at 1204 (Merkige, J., dissenting). But

does the state have any interest in regulating private sexual

conduct between consenting adults — or in criminally prosecut-

ing homosexuals for private, consensual sodomy?

Basically, the defendants claim that the state's interests jus-

tifying the ban on homosexual conduct by § 21.06 are (i)

morality and decency, (ii) public health, (iii) welfare and

safety, and (iv) procreation.** However, the evidence presented

personal decision entitled, at least in some instances, to. full protection as an

aspect of the individual's right of privacy.” Beller v. Middendorf, 632 F.2d

788, 809 (9th Cir. 1980). See L. Tribe, American Constitutional Law § 15-13

(1978 and Supp. 1979); Gerety, Redefining Privacy, 12 Harv.C.R.-C.L.L.

Rev. 233, 280-81 (1977); Wilkinson & White, Constitutional Protection for

Personal Lifestyle, 62 Cornell L.Rev. 563 (1977).

** Somewhat different justifications were o.fered at various times by each

defendant:

Dalias County (through District Attorney Wade) claimed the “tradi-

tional police powers to provide for the security, welfare, safety, morals,

S9a

at trial did not support any of these claims. Instead, it estab-

lished that the state has no “compelling interest” to justify

§ 21.06 — and that, indeed, this statute is not even “rationally

related” to any “legitimate state interest.” Silva v. Vowell, 621

F.2d 640, 647 (Sth Cir. 1980).

The detendants did not produce a single witness, or any

other evidence, to support the alleged state interests of “mor-

ality and decency, welfare and safety, and procreation.” They

did present one witness who testified about the state’s supposed

interest in “public health” furthered by § 21.06. This was Dr.

James Grigson — who was not an expert in the field of homo-

sexuality but who testified that criminal sanctions against

homosexual conduct would promote the health of (i) children,

by fostering their growth and development, and (ii) homosex-

uals, by forcing them to seek psychiatric treatment and be

“cured.” These opinions are not based upon any independent

decency and other interests” (motion for summary judgment, p. 30). . . the

“safety, health, decency, morals, general welfare and to promote order in

society” (motion for summary judgment, p. 26). . . the “decency, welfare of

society. procreation, morals, and other self-evident state interests’ (Amd.

Response to Request for Admissions, © 4). . . the protection of “those within

[the state's] borders by proscribing homosexual conduct” (post-trial brief, p. 21)

_. the reinforcemeat “of normal growth and behavioral patterns” and the

inducement to “those homosexuals who now seek help to overcome their

tendencies” (post-trial brief, p. 21).

The City of Dallas (through City Attorney Holt) claimed “the preservation

of morality, the maintaining of a decent society, the promotion of mental

health” (proposed findings 6-8) . . . the “continued procreation of society and

protection of morals” (Amd. Response to Request for Admissions, © 4). . .

“upholding morality and decency” (pest-trial brief, p. 5)... the “health,

welfare and morals of individuals and of society” (pretrial order, p. 3). . .

the “positive effect upon the ability of children to foiin a ‘positive gender

identification’ and to reinforce societal norms of acceptable sexual behavior”

(post-trial brief, pp. 5-8).

The Stare of Texas (through its Attorney General) claimed only procreation:

“Should homosexual cenduct become too widespread, society would lose its

means of reproducing itself” (Response of The State of Texas, p. 3).

60a

research; they are contrary to the medical and psychiatric lit-

erature, to the opinions of most American psychiatrists today ,

and to the very credible evidence given by plaintiff's experts.

For these, and the other reasons discussed above, this Court

completely discounts Dr. Grigson’s testimony and opinions.

In addition to the lack of any expert testimony supporting

the claimed state interests, both District Attorney Wade and

City Attorney Holt were unable to explain how § 21.06 furth-

ered the supposed interests of morality or decency, the welfare

of society, procreation, or any other interest. Nor was there

any evidence that the Texas legislature had even considered

these alleged interests when it passed § 21.06 as part of the

general revision of the Penal Code in 1974. Therefore, under

the record in this case, the defendants have nothing to rely

upon but the assertion of general platitudes (morality, decency ,

etc.). This is totally inadequate to justify § 21.06, as shown

by Commonwealth's Attorney:

“The defendants, represented by the highest legal of-

ficer of the state, made no tender of any evidence which

even impliedly demonstrated that homosexuality causes

society and significant harm. No effort was made by the

defendants to establish either a rational basis or a compel-

ling state interest so as to justify the proscription of § 8.1-

212 of the Code of Virginia, presently under attack.

“On the basis of this record one can only conclude that

the sole basis of the proscription of homosexuality was

what the majority refers to as the promotion of morality

and decency. As salutary a legislative goal as this may

be, I can find no authority for intrusion by the state into

the private dwelling of a citizen. Stanley v. Georgia, 394

U.S. 557 [89 S.Ct. 1243, 22 L.Ed.2d 542] ... The

Supreme Court has made it clear that fundamental! rights

6la

of such an intimate facet of an individual's life as sex,

absent circumstances warranting intrusion by the state,

are to be respected. My brothers, I respectfully suggest,

have by today’s ruling misinterpreted the issue — the

issue centers not around morality or decency, but the

constitutional right of privacy.” (403 F.Supp. at 1205).

(Merhige, J., dissenting).

Moreover, the plaintiff's evidence establishes that there is

no compelling state interest served by § 21.06 — and that,

indeed, this statute’s condemnation of homosexua! conduct is

not even rationally related to a legitimate state interest. In

particular, this evidence (including the testimony of the ex-

perts, Dr. Marmor and Dr. Simon) established the following:

Homosexuals are not ill or mentally diseased. They are

not criminals. They have no propensity for crimes, those

involving sexual offenses or otherwise, any more than

heterosexuals. But over 700,000 individuals are “criini-

nals” in Texas today because of § 21.06.

Homosexuality is not a matter of choice. It is fixed at

a very early age. Only a small percentage of homosexuals

can be changed or “cured” by psychiatric treatment. The

numbers of homosexuals in society are not reduced by

criminal laws like § 21.06, nor would they be increased

if such laws did not exist.

Homosexuality is not communicable. The absence of

§ 21.06 would not lead to increased crime or violence or

other threats to public health or safety. This statute does

not further the “growth and development” of children and

it harms, rather than helps, the mental health of homosex-

uals. There is simply no rational connection between the

acts proscribed by § 21.06 and the claimed interests of

morality, decency, heaith, welfare, safety and procreation.

62a

Therefore, § 21.06 is not justified by any “compelling state

interest.” Moreover. its prohibition against private homosexual

conduct between consenting adults is not even rationally related

to any legitimate state interest. Accordingly, § 21.06 is uncon-

stitutional because it violates the plaintiff's fundamental right

of privacy.~

Equal Protection

Section 21.06 does not prohibit sodomy between consenting

adults of the opposite sex; only oral or anal sex between con-

senting adults of the same sex is illegal. Thus, om is face,

§ 21.06 discriminates against homosexuals by making acts

criminal when committed by them, but not by heterosexuals.

This violates the plaintiff's right to equal protection of the law

unless the discrimination between heterosexuals and homosex-

uals bears “some rational relationship to legitimate state pur-

poses.” San Antonio School District v. Rodriquez, 411 U.S.

1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973); Silva v.

Vowell, 621 F.2d 640, 647 (Sth Cir. 1980).

As discussed in the preceding section, the evidence in this

case established that none of the interests claimed by defendants

(morality and decency, public health, welfare and safety, and

procreation) were furthered by § 21.06 — and that this statute

is not “rationally related” to any “legitimate state interest.”

Indeed, the defendant Wade conceded this; he testified that he

knew of no rational basis for the discrimination in § 21.06

between homosexual sodomy and heterosexual sodomy:

“ The defendant Wade's argument that the plaintiff “waived” or “abandoned”

his right of privacy is absurd. The fact that the plaintiff was the subject of an

interview in a magazine article (Texas Monthly, p. 180; defendant Wade's

exh. |) is certainly not a consent to “unwarranted governmental intrusion” into

his personal and intimate decisions concerning private sexual conduct.

63a

“Q. Doesn't the statute, § 21.06, doesn’t it permit pri-

vate sodomy by heterosexuals but not homosexuals?

“A. I wouldn't even know that, but I'm taking your

word for it.

“Q. Assume it does.

“A. Yeah.

“Q. What rational basis is there for that classification,

if you known of any?

“A. I don’t know of any.”

Therefore, § 21.06 is invalid because it violates the plain-

tiffs right to equal protection. New York v. Onofre, 51 N.Y .2d

476, 434 N.Y.S.2d 947, 415 N.E.2d 936, held that a statute

which prohibited sodomy between unmarried persons (whether

heterosexual or homosexual), but not between married couples,

was unconstitutional:

“As to The Denial of defendants’ right to equal protec-

tron, Section 130.38 of the Penal Law on its face discrimi-

nates between married and unmarried persons, making

criminai when done by the latter what is innocent when

done by the former. With that distinction drawn, we look

to see whether there is, as a minimum, ‘some ground of

difference that rationally explains the different treatment

accorded married and unmarried persons’ under the statute

. . . Inour view, none has been demonstrated or identified

by the People . . . The statute therefore must fall as vio-

lative of the right to equal protection enjoyed by persons

not married to each other.” (434 N.Y.S.2d at 953, 415

N.E.2d at 942).

As discussed above (notes 44, 49), no equal protection claim was involved

in Doe v. Commonwealth s Attorney, 403 F.Supp. 1199, because the Virginia

statute condemned ail acts of sodomy, both homosexual and heterosexual.

Therefore, even if this Court is erroneous in its conclusion that the Supreme

64a

Accord: Commonwealth vy. Bonadio, 490 Pa. 91, 415 A.2d

47 (1980).

plaintiff s claims

The plaintiff claims that the “rational relationship” test is

too lenient. and that the state must show a “compelling state

interest” in order to justify the discrimination in § 21.06. Two

arguments are advanced:

(i) that § 21.06 discriminates on the basis of sex “in

that a male may commit sodomy with a female, but not

with a male, and a female may indulge in sodomy with

a male, but not with a female”.

(ii) that homosexuals constitute members of a “suspect

class” — and. like the previously recognized suspect

classes of race, religion, national origin, and alienage —

are entitled to the “compelling state interest” standard of

review under Frontiero v. Richardson, 411 U.S. 677 [93

S.Ct. 1764, 36 L.Ed.2d 583] (1973).

Alternatively. the plaintiff contends that this Court should

apply “the emerging intermediate level of review” which has

been approved by the Supreme Court in equal protection cases

involving discrimination on the basis of gender and illegiti-

macy.” Here, the plaintiff relies upon such cases as Mills v.

Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770

(1982) and Plyler v. Doe, ——— U.S. ———, 102 S.Ct.

2382, 72 L.Ed.2d 786 (1982).

Court’s summary affirmance in Commonwealth's Attorney does not preclude

4 determination that the right of privacy extends to private homosexuai conduct,

it certainly does nex affect the decision that § 21.06 violates the equal protection

rights of the plaiatiff and other homosexuals.

654

It is not necessary to reach these contentions.” This opinion

has concluded that the plaintiff's right of privacy is violated

because no “compelling state interest” justifies § 2] .06 — and

that there is a denial of equal protection because § 21.06 “bears

no rational relationship to any legitimate state interest.” Obvi-

ously, under either of the two equal proiection standards urged

by the plaintiff (“compelling state interest” or “intermediate

level of review”), this Court would conclude that there Is a

denial of equal protection by § 21.06.

public distaste

The defendants claim that “it is undisputed that homosexual

sodomy, far from being a proud and cherished tradition. 1s a

practice which has been abhoned in western civilization and

has long inspired an almost universal phobic response. Similar

statements are found in some of the cases involving Texas

sodomy statutes. See Appendix A; Dawson v. Vance, 329

F.Supp. 1320 (S.D. Tex. 1971).

These are overstatements. In several countries today.

homosexuality is not criminal; and it has been decriminalized.

without adverse effects, in some 21 states in this country.” But

“*If the issue were reached, this Court would hold that homosexuals are not

a “suspect class” for equal protection purposes — since the Supreme Court

has not even concluded yet that sex is a suspect class. Frontiero v. Richardson.

411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583. See Holloway v. Arthur

Andersen & Co., 566 F.2d 659 (9th Cir. 1977) (transsexuals are not a suspect

class). Cf. DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979)

(homosexuals not “class” within Title VII protection): Kirkpatrick v. Seligman

& Latz, Inc., 636 F.2d 1047, 1050 (Sth Cir. 1981).

* Dr. Judd Marmor, the plaintiff's expert. also testifted that “Ford and Beach

did a study cf 76 societies and found in almost two-thirds of them. homophobia

{an exaggerated fear of homosexuals among heterosexuals} did not exist and

some form of homosexuality was permitted. One-third of the societies they

studied did have the similar kind of restrictive attitudes towards overt homosex-

ual behavior that ours does.”

66a

even if there is widespread public distaste, this would not be

any “legitimate state interest” to rationalize a denial of equal

protection — nor would it be a “compelling state interest” to

justify a denial of the right of privacy. See United States v.

Moreno, 413 U.S. 528, 534-35, 93 S.Ct. 2821, 2825-26, 37

L.Ed.2d 782 (1973). As discussed in New York v. Onofre:

*_ . it has been deemed irrelevant by the United States

Supreme Court that the purchase and use of contraceptives

by unmarried persons would arouse moral indignation

among broad segments of our community or that the view-

ing of pornographic materials even within the privacy of

one’s home would not evoke general approbation

(Eisenstadt v. Baird, Stanley v. Georgia). We are not

unmindful of the sensibilities of many persons who are

deeply persuaded that consensual sodomy is evil and

should be prohibited. That is not the issue before us. .

The community and its members are entirely free to em-

ploy theological teaching, moral suasion, parental advice,

psychological and psychiatric counseling and cther non-

coercive means to condemn the practice of consensual

sodomy. The narrow question before us is whether the

Federal Constitution permits the use of the criminal law

for that purpose.” (434 N.Y.S.2d at 951 n.3, 415 N.E.2d

at 940 n.3).

Indeed, the Supreme Court has emphasized that cases involving

controversial sexual issues must be resolved “by constitutional

measurement, free of emotion and free of predilection” because

the Constitution is made for people of fundamental differing

views, and “the accident” of our finding certain opinions “novel

and even shocking ought not to conclude our judgment upon

the question” of constitutionality. Roe v. Wade, 410 U.S. at

116-17, 93 S.Ct. at 708-09, quoting the “now-vindicated dis-

67a

sent’ of Justice Holmes in Lochner v. New York, 198 U.S.

45, 76, 25 S.Ct. 539. 547, 49 L.Ed. 937 (1905).

Additional Matters

Several other matters raised by the parties must be addressed

to show their consideration — and rejection — by this Court.

establishment of religion

The plaintiff's claim that § 21.06 violated the establishment

clause of the first amendment was a second-line attack upon

this statute. The evidence did not establish any such constitu-

tional violation.

To the contrary, the testimony of the plaintiff's expert in

religion (Dr. Furnish) was that private consensual homosexual

conduct was not condemned by the bible, although he conceded

other scholars disagreed with his opinions (see note 12). The

plaintiff claims that, despite this disagreement among biblical

scholars, “it is clear that Bibiical law has been advanced as a

reason for the enactment of this and similar laws.’ However,

as discussed above, it is impossible to ascribe any intent to

the legislature in its enactment of § 21.06. See Appendix A.

Therefore, § 21.06 does not violate the establishment clause

because there was no proof that “the principal or primary effect

of this statute was to advance or inhibit religion.” Harris v.

McRae, 448 U.S. 297, 318-20, 100 S.Ct. 2671, 2688-89, 65

L.Ed.2d 784 (1980).

abstention

The defendants claim that this Court should “abstain, in

order to permit the state courts, or its legislature, to consider

this most sensitive matter of state law based on grounds of

comity and federalism.”

68a

This claim is baseless.” Neither Younger abstention nor

Pullman abstention is appropriate.°' See Red-Bluff Drive-in,

Inc. v. Vance, 648 F.2d 1020, 1032 (Sth Cir. 1981). There

are no charges pending against plaintiff under § 21.06

(Younger). And, there is no “unsettled question of state law”

which might dispose of the case without the need for constitu-

tional adjudication (Pullman). It is clear that the only thing

prohibited by § 21.06 is private, consensual homosexual con-

duct — and that, for the reasons discussed, it violates the

plaintiff's right of privacy and his right to equal protection of

the law.

standing

The defendants claim that, since the plaintiff faces no

“genuine” or “real” or “credible” threat of prosecution, this

action should be dismissed for lack of standing. They base

this argument upon the fact that the plaintiff has never been

arrested or threatened with prosecution under § 21.06 — and

the fact that there is “no evidence that any person was ever

prosecuted anywhere in Texas for consensual adult homosexual

conduct in a private residence.”

This contention, too, is erroneous. The plaintiff does have

standing to attack the constitutionality of § 21.06. He faces a

direct harm in the form of threatened prosecution since it is

stipulated that both defendants “would prosecute the plaintiff

and other homosexuals under [§ 21.06] if provable violations

of the law come to their attention.”

It is really a request that the plaintiff be denied relief. There is little

likelihood that the Texas legislature will repeal § 21.06 (see Appendix A),

and the state courts would certainly uphold the constitutionality of this statute.

See Appendix A; Torme v. State, 525 S.W.2d 9, 11 (Tex. Cr. App. 1975).

*' Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971);

Railroad Comm. of Texas v. Pullman, 3\2 U.S. 496, 61 S.Ct. 643, 85 L.Ed.

971 (1941).

69a

It is not necessary for the plaintiff to expose himself to

actual arrest and prosecution in order to challenge § 21.06.

Babbitt v. United Farmworkers, 442 U.S. 289, 99 S.Ct. 2301,

60 L.Ed.2d 895 (1979); Steffel v. Thompson, 415 U.S. 452,

94 S.Ct. 1209, 39 L.Ed.2d S05 (1974): High OC! Times, inc.

v. Busbee, 621 F.2d 135 (Sth Cir. 1980). As stated in Babbitt:

“When contesting the constitutionality of a criminal

Statute, “it is not necessary that [the plaintiff] first expose

himself to actual arrest or prosecution to be entitled to

challenge [the] statute that he claims deters the exercise

of his constitutional rights.’ Steffel v. Thompson, 415

U.S. 452, 459 [94 S.Ct. 1209, 1215, 39 L.Ed.2d 505]

(1974) .. .” (442 U.S. at 298, 99 S.Ct. at 2308).

Although there may be practical problems in obtaining convic-

tions under § 21.06 (see notes 5, 6), the threat of prosecution

is “credible” and “real.” For example, participants can be

prosecuted if a third person observes their acts of homosexual

sodomy. Moreover, § 21.06 can be — and has been — used

by the state if there is some doubt as to whether the conduct

occurred in a public place (see note 6). The state has certainly

not “disavowed any intention” of invoking the statute in either

of these instances. Babbitt, 442 U.S. at 302, 99 S.Ct. at 2311.”

In addition, it is clear that the plaintiff and other homosexuals

suffer other detriments from § 21.06 besides the threat of prose-

cution and a $200 fine. For example:

(i) Employers are reluctant to hire “criminals,” and the

testimony of a Dallas School Board member established

“It is not necessary to address the defendant Wade’s baseless, but

imaginative, argument that there is no standing because § 21.06 “may

not ever be enforced against the plaintiff because of a myriad of cir-

cumstances under his control, e.g., a change in preference for sexual

partners, a surgical sex change, or a physical inability to locate a suitable

male sexual partner.”

70a

that prosecution, or even suspicion, of a violation of

§ 21.06 would have resulted in the termination of plain-

tiff's employment as a school teacher (see note 9).

(ii) The plaintiffs experts testified that severe anxieties

are caused by threat of criminal punishment of homosex-

ual conduct, and that this emotional distress could result

in mental disorders. The plaintiff's testimony confirms

this.

(iii) As reflected in reported cases, § 21.06 has been

the basis (at least in part) for denial of probation in criminal

cases, the alleged harassment of patrons of known

homosexual bars, the refusal of employment, and the

denial of citizenship to aliens.**

Accordingly, the plaintiff does have standing to attack the

constitutionality of § 21.06, which makes him a “criminal.”

Conclusion

Homosexuality is an emotional and controversial issue in

our society. It causes fear and disgust among many people.

This may well result in condemnation of this decision — but,

if so, the critics should at least have a clear understanding that

this decision has little effect upon the general public.

At issue is a statute which is not enforced by criminal prose-

cutions; and, even if it were, the only punishment is a fine of

$200 or less. But this statute, § 21.06, makes criminals out

of more than 700,000 individuals in Texas who are homosex-

uals, although they did not choose to be, and who engage in

sia sexual conduct with other a adults. This is

** See pemnre A, ‘tenia Torme v. State indians Cyr v. Walls

(alleged harassment), Childers v. Dallas Police Dept. (refusal of employment),

and Longstaff v. Immigration & Naturalization Service, 538 F.Supp. 589(N.D.

Tex. 1982) (citizenship).

Tla

prohibited by the constitutional right of privacy (as well as

equal protection of the law) — because, if it were not, ihe

state would have the same power to intrude into the private

lives and bedrooms of heterosexuals, and regulate the intimate

sexual relationships of married couples and single males and

females.

Of course, this decision does not mean that the Constitution

shields all types of homosexual conduct or that it “unqualifiedly

sanctions personal whim.” Doe v. Commonwealth's Attorney,

403 F.Supp. at 1204-05 (Merhige, J., dissenting). There is no

constitutional protection if force is used, or if a minor is in-

volved, or if the sexual conduct takes place in public, and this

is true whether heterosexuals or homosexuals are involved.”

Homosexuals, like heterosexuals, are still subject to prosecu-

tion — just as they have been for years, under Texas Penal

Code provisions not involved in this case — for (i) rape and

sexual abuse by force, §§ 21.02 and 21.04, (ii) sexual offenses

involving children, §§ 21.09-21.11, and (iii) sexual conduct

or indecent exposure in a public place, §§ 21.07 and 21.08.

See Appendix A.

Nor does this decision mean that all consensual activities

in private are constitutionally protected, or that an individual

has an absolute right to do whatever he pleases in his own

home. Obviously, the right of privacy does not apply to private

conduct harmful to the individual participants or to society,

such as the use of harmful drugs. See New York v. Onofre,

434 N.Y.S.2d at 952-53, 415 N E.2d at 941-42.

“Absent is the factor of commercialization with the attendant evils com-

monly attached to the retailing of sexual pleasures; absent the elements of force

or of involvement of minors which might constitute compulsior of unwilling

participants or of those too young to make an informed choice; and absent too

intrusion on the sensibilities of members of the public, many of whom would

be offended by being exposed to the intimacies of others.” New York v. Onofre.

434 N.Y.S.2d at 952, 415 N.E.2d at 941.

72a

But, for the reasons discussed above, the right of pri-

vacy does extend to private sexual conduct between con-

senting adults — whether husband and wife, unmarried

males and females. or homosexuals — and the right of

equal protection condemns a state statute which (like

§ 21.06) prohibits homosexual sodomy, but not

heterosexual sodomy, without any rational basis.

APPENDIX A — THE TEXAS SODOMY LAWS

1. Article 342

There have been three sodomy statutes in Texas. The

first, Article 342 of the Texas Penal code, was adopted

in 1860 (four years after the initial criminal code had

been enacted in 1856). It provided:

“Whoever commits with mankind or beast the abomin-

able and detestable crime against nature shall be confined

in the penitentiary for not less than five nor more than

fifteen years.”

Since sodomy was not defined — indeed, “the charge was

too horrible to contemplate and too revolting to discuss,” Har-

vey v. State, 5S Tex.Cr.R. 199, 115 S.W. 1193 (1909) —

Texas courts “looked to the common law for the elements of

[this] crime,” and surprisingly held that this statute did not

condemn oral sex, but only anal sodomy and bestiality. Pruett

v. State, 463 S.W 2d 191 (Tex.Cr.App. 1970). Prindle v.

State, 31 Tex. Cr. R. 551, 21 S.W. 360 (1893) held:

*. . “Sodomy, which is the abominable and detestable

crime against nature known to the common law, Is, by

article 342 of the Penal Code made an offense’ in this state;

73a

and, being undefined, we must jook to the common law

for the elements of this crime. Ex parte Bergen, 14 Tex.

App. 52. ‘To constitute this offense, the act must be in

that part where sodomy is usually committed. The act in

a child’s mouth does not constitute the offense.’ | Russ.

Crime, p. 937; Rex v. Jacobs, Russ. & R. 331. ...

However vile and detestable the act [of oral sex] proved

may be, and is, it can constitute no offense, because not

contemplated by the statute, and is not embraced in the

crime of sodomy.” (21 S.W. at 361).

Thus, for a period of 83 years in Texas, oral sodomy was not

illegal — whether committed by man and wife, by unmarried

male and female, or by homosexuals. '

2. Article 524

In 1943, the sodomy statute was amended to prohibit all

oral or anal sex, even between persons who were married.

Article 524 of the Texas Penal Code then provided:

“Whoever has carnal copulation with a beast, or in an

opening of the body, except sexual parts, with another

human being, or whoever shall use his mouth on the

sexual parts of another human being for the purpose of

having carnal copulation, or who shall voluntarily permit

In 1925, Article 342 and other statutes were inadvertently omitted from

the enrolled bill containing the Revised Penal Code of 1925. In Ex parte

Copeland, 91 S.W.2d 709 (Tex. Cr. App. 1936), Judge Christian held that

this did not repeal the sodomy laws:

“To impute to the Legislature the intent io repeal the statutes defining

incest, bigamy, seduction, adultery, and fornication is to lay at its door

the charge of ignoring the moral sense of the people of this state and

striking down some of the strongest safeguards of the home. That such

was not the Jegislative intent is apparent from the enrelled bill.”

74a

the use of his own sexual parts in a lewd or lascivious

manner by any minor, shall be guilty of sodomy, and

upon conviction thereof shall be deemed guilty of a felony,

and shall be confined in the penitentiary not less than two

>

(2) nor more than fifteen (15) years.””

For the next 31 years, it would be a felony for anyone in Texas

—— married couples, single males and females, male homosex-

uals or lesbians — to engage in oral or anal sodomy even in

private with another consenting adult.*

Although sodomy had been “too horrible to contemplate

and too revolting to discuss” in 1909, Harvey v. State, 55

Tex. Cr. R. 199, 115 S.W. 1193, times had changed by 1971,

and Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1971),

dism’d for want of substantial federal question, 402 U.S. 902,

91 S.Ct. 1379, 28 L.Ed.2d 643 (1971), gave this comprehen-

sive definition:

‘In its broadest meaning, sodomy is the carnal copula-

tion by human beings with each other against nature, or

with a beast, in which sense it includes the crime against

nature, bestiality (copulation between a human being and

a brute of the opposite sex); buggery (carnal copulation

of a man with beast); cunnilingus (the sex perversion com-

> Although “sodomy” could be accomplished “only through the anus and not

through the mouth,” Prindle v. State, 31 Tex. Cr. R. 551, 21 S.W. 360,

“carnal copulation” was construed to cover both oral and anal sex. Furstonburg

v. State, 148 Tex. Cr. R. 638, 190 S.W.2d 362 (1945).

‘“There are cases which say that it is conceivable that a husband and wife

would be convicted of sodomy even though the proof established consent, and

that it is the unnatural and prohibited ways of satisfying sexual desires that

the statute is designed to prevent. ‘Thus husband and wife, if violating this

statute, could undoubtedly be punished, whereas the normal sexual act would

not only be legal but perhaps entirely proper’” Pruett v. State, 463 S.W.2d

at 193, quoting State v. Nelson, 199 Minn. 86, 271 N.W. 114 (i937).

75a

mitted with the mouth and the female sexual organ); and

fellatio (an offense committed with the male organ and

the mouth). In its narrower sense, sodomy is the carnal

copulation between two human beings per anus, or by a

human being in any manner with a beast. 81 C.J.S.

Sodomy § 1(a), 367.” (463 S.W.2d at 195).*

Article 524 was declared unconstitutional in Buchanan v.

Batchelor, 308 F.Supp. 729 (N.D.tex. 1970), reversed on

other grounds, 401 U.S. 989, 91 S.Ct. 1222, 28 L.Ed.2d 526

(1971), by a three-judge panel because the statute prohibited

the private, consensual acts of married couples, and thus vio-

lated their constitutional right of privacy. However, the Texas

Court of Criminal Appeals refused to follow this decision —-

which was remanded to the district court for a determination

of whether Younger abstention was proper (401 U.S. 37, 91

S.Ct. 746, 27 L.Ed.2d 669) — and continued to uphold the

constitutionality of Article 524. Pruett v. State, 463 S.W.2d

191 (Tex.Cr.App. 1971), dism’d for want of substantial federal

question, 402 U.S. 902,91 S.Ct. 1379, 28 L.Ed.2d 643 (1971);

Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App. 1971),

cert. denied, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804

(1971).

Another federal district court in Texas also refused to follow

the Buchanan decision. In Dawson v. Vance, 329 F.Supp.

1320 (S.D.Tex. 1971), the case was dismissed — on Younger

abstention grounds as to the homosexual plaintiff seeking to

enjoin pending sodomy charges in the state court; on “no case

or controversy” grounds as to the married couple who inter-

vened, but who had not been threatened with prosecution under

*In 1980, a Texas Monthly artic'e described it more succinctly: “a sexual

technique that sounded both anaton cally exacting and excruciatingly painful.”

Texas Monthly, p. 109 (defendami ‘Wade's exh. 1).

76a

Article 524.5 However, the court left no doubt that it would

not extend the right of privacy to private consensual acts of

sodomy:

“The state statute in question, Article 524, Texas Penal

Code, forbids and condemns the practice of sodomy.

Sodomy is an act upon or concerning the physical being

of a person. It is an act of immemorial anathema both at

common law, wherein it was punishable by death, 81

C.J.S. Sodomy § 1, p. 370, and in ancient times. Genesis

19: 1-29. Itis clearly an offense involving moral turpitude

whether defined by common law or by statute. The prac-

tice is inherently inimical to the general integrity of the

human person. This is a postulate not of dogma but of

common knowledge. It warrants the dignity of judicial

knowledge. The primary authority and responsibility of

the several states to forbid and control otherwise natural

libidinal vice could scarcely be questioned. Their primary

power over aberrational libidinal vice is no less sure.

Sodomy is, therefore, in the general sense a crime the

control of which is clearly within the reserved and police

powers of the several states. . . .” (329 F.Supp. at 1322)

(emphasis added).

3. Section 21.06

In January of 1974, a new penal code was enacted — the

first comprehensive reform of the state’s criminal laws since

‘The court even seemed to have some doubt as to whether the marned

couple had committed sodomy: in their petition, they “purport to admit to acts

of sodomy committed within their alleged marital union. These allegations in

the form of admissions are conclusionary in nature” (329 F.Supp. at 1323).

But see Quinonez v. National Ass'n of Securities Dealers, Inc., 540 F.2d 824

(Sth Cir. ‘976).

77a

the initiai code had been enacted in 1856. As part of this

general reform, the laws concerning sexual offenses were sub-

stantially revised. Fornication, adultery, and seduction on

promise of marriage were no longer crimes. And, all penalties

for sodomy between consenting adults of the opposite sex in

private were repealed — so, for the past 8 years in Texas,

only homosexuals have been prohibited from engaging in pri-

vate, consensual sodomy.°

Article 524 (Sodomy) was replaced with § 21.06 (Homosex-

ual Conduct), which condemned only oral or anal sex between

consenting adults of the same sex:

“A person commits an offense if he [or she] engages

in deviate sexual intercourse with another individual of

the same sex.

“*Deviate sexual intercourse’ means any contact be-

tween any part of the genitals of one person and the mouth

or anus of another person.”

Punishment was drastically reduced, from a felony (2-15 years

imprisonment) to a Class C misdemeanor (fine not to exceed

$200). Searcy and Patterson, Practice Commeniaries to Chap-

ter 21 — Sexual Offenses, Texas Penal Code Ann. §§ 21.01-

21.12 (Vernon 1974).,

* The plaintiff's requests for admissions asked the defendants to concede that

§ 21.06 “prohibits a male from engaging in ‘deviate sexual intercourse’ with

another male, but does not prevent such conduct if performed with a female.”

The response, with an unfortunate but Classic Typo:

“Section 21.06 proscribes a mole engaging in ‘deviate sexual inter-

course’ with another mole and likewise proscribes a female engaging in

“deviate sexual intercourse’ with another female. The definition of ‘de-

viate sexual intercourse’ is not limited to conduct between persons of

the same sex.”

See et cetera, “Somewhat Great Moments in the Law,” Dallas Bar Headnotes

(July 1982).

q

;

.

:

78a

No legislative history is available to assist this Court in

determining the intent of the legislature in passing § 21.06 —

i.e., why penalties for oral and anal sodomy between males

and females were repealed, but those against private and con-

sensual homosexual conduct were retained. The Court asked

the parties to supply legislative history, and the defendant

Wede furnished this information:

“The Attorney General’s Office in Austin assisted in

responding to the Court’s request and advised that no

readily available data exists as to the legislative history

of Section 21.06. It was explained that the state procedure,

unlike the procedure attending Acts of Congress, does

not involve either the preparation or filing of a ‘legislative

history’ as to any bill. Neither the committee debates nor

reports are recorded. A bill [is} usually referred to the

Legislature with a one-page report of transmittal.

“Tapes of the 1974 Penal Code revision are on file in

Austin, but are flawed by the absence of an index, by

the sheer quantum and by the belief by the staff at the

state library having custody thereof that the likelihood of

locating any such legislative history as to Section 21.06

is remote, at best. The University of Texas Law School

Library has a good many of the papers prepared incident

to the Penal Code, but this option has the same flaws

associated with the tapes, coupled with the uncertainty

that these papers could be imputed to the Legislature as

its declaration of interest.” (Defendant Wade’s post-trial

brief, p. 23.)

A similar description of the lack of legislative history for

§ 21.06 appears in Von Beigel, The Criminalization of Private

Homosexual Acts: A Jurisprudential Case Study of a Decision

by the Texas Bar Penal code Revision Committee, 6 Human

79a

Rights 23 (1977). However, this article also states that, al-

though the author had not examined the available tape record-

ings at any great length “other research indicates that the Penal

Code Revision Subcommittee of the House Committee on

Criminal Jurisprudence did seriously consider the decriminali-

zation of the private homosexual acts of consenting adults, but

decided to support § 21.06 as proposed, fearing a backlash

effect against the entire Penal Code should such acts be de-

criminalized.”

Actualiy, the legislature did not prohibit a// homosexual

conduct by § 21.06. That statute condemned only contact be-

tween the genitals of one person and the mouth or anus of

another of the same sex. Thus, § 21.06 does not prohibit

homosexuals from kissing, hugging, or sexually stimulating

their partners with hands and fingers. Nor did § 21.06 condemn

the use of any artificial device — such as a vibrator or dildo

— until amended in 1981 to prohibit “the penetration of the

genitals or the anus of another with an object.” Texas Penal

Code Ann. § 21.06 (Vernon Supp. 1982).

The revised penal code does prohibit both heterosexual and

homosexual rape, § 21.02 (Rape) and § 21.04 (Sexual Abuse)

... sexual conduct in public by both homosexuals and

heterosexuals, § 21.07 (Public Lewdness) and § 21.08 (Inde-

cent Exposure) . . . and both heterosexual and homosexual

offenses involving children, § 21.09 (Rape of a Child), § 21.10

(Sexual Abuse of a Child), and § 21.11 (Indecency with a

Child). However, the code does contain some puzzling incon-

sistencies:

(i) Acts involving “contact between the person’s mouth

or genitals and the anus or genitals of an animal or fowl”

are prohibited only if they occur “in a public place,

§ 21.07 (Public Lewdness). No section condemns such

conduct in private. Thus, one may engage in private sexual

ne ee

80a

acts of bestiality — but not in private oral or anal sex

with a consenting adult of the same sex, § 21.06

(Homosexual! Conduct).

(ii) It is a defense to the statutory rape of a child under

17 if the defendant is “not more than two years older than

the victim,” but there was no such defense to indecency

with a child (§ 21.11) until this was added by amendment

in 1981. Thus, for a period of seven years after 1974, a

17-year-old boy could have been prosecuted as a felon

“for fondling a 16-year-old girl at her invitation in private,

but not for engaging in sexual intercourse with her.” Tex.

Penal Code Ann. § 21.11 (Practice Commentary) (Vernon

1974 and Supp. 1982).

In the 1975 session of the Texas legislature, a bill was

introduced to repeai § 21.06. It was defeated in the House of

Representatives by a vote of 112-16.’ Unsuccessful efforts

were also made to repeal § 21.06 in the 1977 and 1979 sessions,

but no attempt was made in 1981. The plaintiff, Donald Baker,

participated in the 1979 effort, but the bill “did not even get

out of committee.” He testified that, in his opinion, any atiempt

to repeal § 21.06 in 1983 would fail because most legislators

do not want to commit “political suicide by voting for queers.”

Although there has been no constitutional attack upon

§ 21.06, it has been involved in several reported cases. Two

were state cases. Three were decisions by other federal judges

in this district; none of these involved a direct chalienge to the

The plaintiff, by Motion to Reopen the Evidence and Take Judicial Notice

of Legislative History, asked this Court to take judicial notice of “an approx-

imate transcript” of the hearing held on this 1975 bill. This “approximate

transcript” indicates that some legislators found the bill and homosexuals dis-

tasteful. However, except for the vote on the bill, this Court has refused to

take judicial notice because the “approximate transcript” is merely a copy of

unofficial notes taken by some unidentified person.

Sla

constitutionality of § 21.06, although one judge reached a

different conclusion about the effect of the summary affirmance

by the Supreme Court in Doe v. Commonwealth’s Attorney.

In Torme v. State, 525 S.W.2d 9 (Tex. Crim. App. 1975),

the defendant’s parole was revoked because of an act of

homosexual rape, but the court also noted that the evidence

ciearly reflected a violation of § 21.06. And, in Head v. New-

ton, 596 S.W.2d 209 (Tex. Civ. App. — Houston 1980), the

court held it was still “slanderous per se’ to call someone a

“queer,” because “it imputes the crime of sodomy” under

§ 21.06.

Cyr v. Walls, 439 F.Supp. 697 (N.D. Tex. 1977) involved

a Class action brought “on behalf of all gay persons in the City

of Fort Worth” to enjoin alleged surveillance and harassment

by city police. In deciding the class issues, Judge Mahon stated

in dicta that “there can be no doubt that such state sodomy

and homosexuality laws [like § 21.06] are constitutional,” cit-

ing Doe v. Commonwealth’ s Attorney, 403 F.Supp. 1199 (439

F.Supp. at 701). However, it was not necessary for Judge

Mahon to analyze or decide this issue —— because, as he em-

phasized, the plainttffs were not seeking relief from any con-

duct condemned py § 21.06, but for protection from alleged

police harassment while they were “engaged in lawful activities

of peaceful assembly and association.” Judge Mahon did not

decide the merits of these claims, but certified classes limited

to those persons who were in attendance at regularly scheduled

meetings of a gay rights organization, the services of a gay

church, and certain named gay bars.

In re Longstaff, 538 F.Supp. 589 (N.D. Tex. 1982), appeal

pending, involved a naturalization petition. Judge Estes held

that the plaintiff, an admitted homosexual, had not been “law-

fully admitted to the United States,” 8 U.S.C. § 1427(a),

because he had committed sodomy in England and, therefore,

82a

was a “psychopathic personality.”* Judge Estes also held that

the plaintiff had not sustained the burden of proving his “good

moral character” as required by 8 U.S.C. § 1427(e) because,

among other reasons, he had engaged in violations of § 21.06,

the Texas sodomy statute. Judge Estes recognized that this

decision was inconsistent with Nemetz v. Immigration &

Naturalization Service, 647 F.2d 432 (4th Cir. 1981) — but,

more importantly, he was not faced with any direct constitu-

tional attack upon the validity of § 21.06, as in this case.

Finally, in Childers v. Dallas Police Department, 513

F.Supp. 134 (N.D. Tex. 1981), affirmed without opinion, 669

F.2d 732 (Sth Cir. 1982), a homosexual brought suit because

he was not hired by the Dallas Police Department.’ He raised

a number of claims; among these was the assertion that the

right of privacy extended to private homosexual conduct and

that Police Department’s refusal to hire him violated this right.

But Judge Porter nade it clear that he was not faced with any

challenge to the constitutionality of § 21.06. He emphasized

that “this is not a case where such solicitude [for the nght of

privacy] is appropriate. The situation here is not one where

the State is seeking to use its criminal processes to coerce per-

“But see Lesbian/Gay Freedom Day Committee, Inc. v. Immigration &

Naturalization Service, 541 F.Supp. 569 (N.D. Cai. 1982), which — based

upon “the preponderance of medica! evidence that homosexuality is not a

mental disease, disorder or psychopathic personality trait” — held that (i) the

INS policy of per se exclusion of homosexual aliens from entry into the United

States violates the first amendment, and (ii) that any exclusion of a homosexual

alien from entry based upon his “sexual deviation” must be accompanied by

medical certification that he is afflicted “with excludable physical or mental

defect.”

* The Code of Conduct of the Dallas Police Department “makes any violation

of federal or state statutes a ground for discharge or disciplinary action,”

p

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