# Appendix — Baker v. Wade

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1022

## Text

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JAN 13 19%
No. 85- =

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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)

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85a

87a

120a

134a

138a

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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 “som

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1371%3A2. Public record. Not legal advice.