Litigators Making a Difference
United States Court of Appeals
for the First Circuit: Commonwealth
of Massachusetts,
Plaintiff, Appellee, v. United States
Department of Health and Human
Services, et Al.,
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
Case: 10-2204
Document: 00116385384
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Date Filed: 05/31/2012
Entry ID: 5645268
United States Court of Appeals
For the First Circuit
No. 10-2204
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff, Appellee,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
Defendants, Appellants.
________________________
Nos. 10-2207 & 10-2214
DEAN HARA,
Plaintiff, Appellee/Cross-Appellant,
NANCY GILL, ET AL.,
Plaintiffs, Appellees,
KEITH TONEY, ET AL.,
Plaintiffs,
v.
OFFICE OF PERSONNEL MANAGEMENT, ET AL.,
Defendants, Appellants/Cross-Appellees,
HILARY RODHAM CLINTON,
in her official capacity as United States Secretary of State,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Entry ID: 5645268
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Paul D. Clement with whom H. Christopher Bartolomucci, Conor
B. Dugan, Nicholas J. Nelson, Bancroft PLLC, Kerry W. Kircher,
General Counsel, Office of General Counsel, U.S. House of
Representatives, Christine Davenport, Sr., Assistant Counsel,
Katherine E. McCarron, Assistant Counsel, William Pittard,
Assistant Counsel, and Kirsten W. Konar, Assistant Counsel, were on
brief for intervenor-appellant, the Bipartisan Legal Advisory Group
of the U.S. House of Representatives.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Department of Justice, with whom Tony West, Assistant
Attorney General, Carmen M. Ortiz, United States Attorney, Robert
E. Kopp, Michael Jay Singer, August E. Flentje and Benjamin S.
Kingsley, Appellate Staff, Civil Division, Department of Justice,
were on brief for the federal defendants.
Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F.
Moses, U.S. Conference of Catholic Bishops, Von G. Keetch,
Alexander Dushku, R. Shawn Gunnarson, Kirton & McConkie and Carl H.
Esbeck, Legal Counsel, Office of Governmental Affairs, National
Association of Evangelicals, on brief for U.S. Conference of
Catholic Bishops; National Association of Evangelicals; The Church
of Jesus Christ of Latter-day Saints; The Ethics and Religious
Liberty Commission of the Southern Baptist Convention; The Lutheran
Church-Missouri Synod; The Union of Orthodox Jewish Congregations
of America; The Massachusetts Catholic Conference; The Brethren in
Christ Church; The Christian and Missionary Alliance; The
Conservative Congregational Christian Conference; The Evangelical
Free Church of America; The Evangelical Presbyterian Church; The
International Church of the Foursquare Gospel; The International
Pentecostal Holiness Church; The Missionary Church; Open Bible
Churches [USA]; The United Brethren in Christ Church; The Wesleyan
Church, Amici Curiae.
John Anthony Simmons, Sr. and David Ramos on brief for
American College of Pediatricians, Amicus Curiae.
Lawrence J. Joseph on brief for Eagle Forum Education & Legal
Defense Fund, Amicus Curiae.
Paul Benjamin Linton, Special Counsel, Thomas More Society,
Thomas Brejcha, President & Chief Counsel, Thomas More Society, and
Christopher M. Gacek, Family Research Council, on brief for the
Family Research Council, Amicus Curiae.
Kristen K. Waggoner and Ellis, Li & McKinstry PLLC on brief
for Robert P. George, Sherif Girfis, and Ryan T. Anderson, Amici
Curiae.
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David Austin R. Nimocks, Brian W. Raum, Dale Schowengerdt and
Holly L. Carmichael, Alliance Defense Fund, on brief for
Representative Lamar Smith, Amicus Curiae.
Mary E. McAlister, Stephen M. Crampton, Rena M. Lindevaldsen,
Mathew D. Staver and Anita L. Staver, Liberty Counsel, on brief for
Liberty Counsel, Amicus Curiae.
Thomas M. Fisher, Solicitor General, Office of the Indiana
Attorney General, Gregory F. Zoeller, Attorney General, Office of
the Indiana Attorney General, Bill Schuette, Attorney General,
State of Michigan, Mark L. Shurtleff, Attorney General, State of
Utah, John W. Suthers, Attorney General, State of Colorado, and
Alan Wilson, Attorney General, State of South Carolina, on brief
for the States of Indiana, Colorado, Michigan, South Carolina, and
Utah, Amici Curiae.
John A. Eidsmoe, Roy S. Moore and Benjamin D. DuPré,
Foundation for Moral Law, on brief for Foundation for Moral Law,
Amicus Curiae.
George I. Goverman on brief pro se, Amicus Curiae.
Russell D. Raskin, Raskin & Berman, Abba Cohen and Mordechai
Biser, Agudath Israel of America, on brief for Agudath Israel of
America, Amicus Curiae.
William C. Duncan, Marriage Law Foundation, and Joshua K.
Baker, National Organization for Marriage, on brief for National
Organization for Marriage, Amicus Curiae.
Steven W. Fitschen and Douglas E. Myers on brief for the
National Legal Foundation, Amicus Curiae.
Stephen C. Whiting and The Whiting Law Firm on brief for
Massachusetts Family Institute, Amicus Curiae.
Kevin T. Snider, Pacific Justice Institute, on brief for
Pacific Justice Institute, Amicus Curiae.
Eric C. Bohnet on brief for Concerned Women for America,
Amicus Curiae.
Gary G. Kreep on brief for National Association for Research
& Therapy of Homosexuality (NARTH), Amicus Curiae.
Mary L. Bonauto with whom Gary D. Buseck, Vickie L. Henry,
Janson Wu, Gay & Lesbian Advocates & Defenders, Paul M. Smith, Luke
C. Platzer, Matthew J. Dunne, Melissa A. Cox, Jenner & Block LLP,
Claire Laporte, Ara B. Gershengorn, Matthew E. Miller, Amy Senier,
Catherine Deneke, Foley Hoag LLP, David J. Nagle, Richard L. Jones,
and Sullivan & Worcester LLP were on brief for plaintiffs,
appellees Nancy Gill, et al., and plaintiff, appellee, crossappellant Dean Hara.
Maura T. Healey, Assistant Attorney General, with whom Martha
Coakley, Attorney General, Jonathan B. Miller, Assistant Attorney
General, Christopher K. Barry-Smith, Assistant Attorney General,
Mark C. Fleming, Felicia H. Ellsworth, Brian J. Boyle Jr., Alan E.
Schoenfeld and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief for plaintiff, appellee Commonwealth of Massachusetts.
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William F. Sheehan, Goodwin Procter LLP and Nathalie F.P.
Gilfoyle, American Psychological Association, on brief for the
American Psychological Association, the Massachusetts Psychological
Association, the American Psychiatric Association, the National
Association of Social Workers and its Massachusetts Chapter, the
American Medical Association, and the American Academy of
Pediatrics, Amici Curiae.
Clifford H. Ruprecht, Catherine R. Connors, Frank H. Bishop
and Pierce Atwood LLP on brief for historians Peter W. Bardaglio,
Norma Basch, George Chauncey, Stephanie Coontz, Nancy F. Cott, Toby
L. Ditz, Ariela Dubler, Laura F. Edwards, Estelle B. Freedman,
Sarah Barringer Gordon, Michael Grossberg, Hendrik Hartog, Ellen
Herman, Martha Hodes, Linda K. Kerber, Alice Kessler-Harris, Elaine
Tyler May, Steven Mintz, Elizabeth H. Pleck, Carole Shammas, Mary
L. Shanley, Amy Dru Stanley and Barbara Young Welke, Amici Curiae.
Patricia A. Peard, Ronald W. Schneider, Jr., Bernstein Shur
and Katharine K. Baker, Professor of Law, Chicago-Kent College of
Law, on brief for Family Law Professors, Amici Curiae.
William L. Chapman, Emily Gray Rice, Orr & Reno, P.A., Joan
Heifetz Hollinger, Lecturer-in-Residence, Child Advocacy Program,
University of CA, Berkeley School of Law, Courtney Joslin, Acting
Professor, UC Davis School of Law, and Katharine Silbaugh,
Professor of Law and Law Alumni Scholar, on brief for Family and
Child Welfare Law Professors, Amici Curiae.
Robert G. Young, Daryl J. Lapp, Edwards Wildman Palmer LLP,
James D. Esseks, Joshua A. Block, American Civil Liberties Union
Foundation, Shannon Minter, Christopher F. Stoll, National Center
for Lesbian Rights, Jon W. Davidson, and Peter Renn, Lambda Legal,
on brief for 31 Bar Associations, Public-Interest Organizations and
Legal Service Organizations, Amici Curiae.
Mirian R. Nemetz, Kathleen Connery Dawe, Michael B. Kimberly,
Mayer Brown LLP, and Heather C. Sawyer, Minority Counsel, Committee
on the Judiciary, Ranking Members John Conyers, Jr. and Jerrold
Nadler, on brief for Members of the U.S. House of RepresentativesIncluding Objecting Members of the Bipartisan Legal Advisory Group,
Representatives Nancy Pelosi and Steny H. Hoyer, Amici Curiae.
Alan B. Morrison, George Washington Law School, Anne L.
Weismann, Melanie Sloan, Citizens for Responsibility and Ethics in
Washington, on brief for Citizens for Responsibility and Ethics in
Washington, Amicus Curiae.
Sabin Willett, Beth I.Z. Boland and Bingham McCutchen LLP on
brief for 70 Business, Professional and Municipal Employers, and
Professional,
Trade,
and
Civic
Organizations
Representing
Employers, Amici Curiae.
Jacob C. Cohn, Jeffrey I. Pasek and Cozen O'Connor on brief
for the Jewish Social Policy Action Network, Amicus Curiae.
James L. Linsey, Cohen, Weiss and Simon LLP, National
Association of Letter Carriers, Judith A. Scott, General Counsel,
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Nicole G. Berner, Associate General Counsel, Laurel R. Webb,
Assistant General Counsel, Service Employees International Union,
David Borer, General Counsel, Leisha A. Self, Staff Counsel,
American Federation of Government Employees, John C. Dempsey,
General Counsel, American Federation of State, County and Municipal
Employeees, David Strom, General Counsel, American Federation of
Teachers, Thomas R. Carpenter, General Counsel, American Federation
of Television and Radio Artists, Edward J. Gilmartin, General
Counsel, Association of Flight Attendants, Alan S. Gordon, General
Counsel, Deborah Allton-Maher, Eastern Counsel, American Guild of
Musical Artists, Patrick J. Szymanski, General Counsel, Change to
Win, Mary K. O'Melveny, General Counsel, Communications Workers of
America, National Education Association, Duncan Crabtree-Ireland,
General Counsel, Danielle S. Van Lier, Assistant General Counsel,
Screen Actors Guild, David Rosen, General Counsel, Transport
Workers Union of America, Michael Nicholson, General Counsel,
International Union, UAW, Nick Clark, General Counsel, United Food
and Commercial Workers International Union, American Federation of
Musicians, Clinton J. Miller III, General Counsel, Erika A. Diehl,
Assistant General Counsel, United Transportation Union, Richard J.
Brean, General Counsel, United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, and Bradley T. Raymond, General Counsel,
International Brotherhood of Teamsters, on brief for Labor
Organizations, Amici Curiae.
Harvey J. Wolkoff, Jessica M. Lindemann, Russell P. Plato,
Samuel P. Bickett, Ropes & Gray LLP, Robert O. Trestan, Steven C.
Sheinberg, Steven M. Freeman, Deborah Bensinger, Anti-Defamation
League, on brief for Anti-Defamation League, Andover Newton
Theological School, California Council of Churches, California
Faith for Equality, Central Conference of American Rabbis, General
Synod of the United Church of Christ, Hadassah, the Women's Zionist
Organization of America, Hindu American Foundation, Interfaith
Alliance Foundation, Japanese American Citizens League, Jewish
Alliance for Law & Social Action, Jewish Reconstructionist
Federation, MA Conference of the United Church of Christ, National
Council of Jewish Women, People for the American Way Foundation,
Society for Humanistic Judaism, Union for Reform Judaism, Unitarian
Universalist Association, Unitarian Universalist Legislative
Ministry
California,
the
Unitarian
Universalist
Ministers
Association, the Universal Fellowship of Metropolitan Community
Churches, and Women of Reform Judaism, Amici Curiae.
May 31, 2012
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BOUDIN,
Circuit
Page: 6
Judge.
Date Filed: 05/31/2012
These
appeals
Entry ID: 5645268
present
constitutional challenges to section 3 of the Defense of Marriage
Act ("DOMA"), 1 U.S.C. § 7, which denies federal economic and other
benefits to same-sex couples lawfully married in Massachusetts and
to surviving spouses from couples thus married.
Rather than
challenging the right of states to define marriage as they see fit,
the appeals contest the right of Congress to undercut the choices
made by same-sex couples and by individual states in deciding who
can be married to whom.
In 1993, the Hawaii Supreme Court held that it might
violate the Hawaii constitution to deny marriage licenses to samesex couples.
Baehr v. Lewin, 852 P.2d 44, 48, 68 (Haw. 1993).
Although Hawaii then empowered its legislature to block such a
ruling, Haw. Const. art. I, § 23--which it did, Act of June 22,
1994, 1994 Haw. Sess. Laws 526 (H.B. 2312) (codified at Haw. Rev.
Stat. § 572-1)--the Hawaii decision was followed by legalization of
same-sex marriage in a small minority of states, some by statute
and a few by judicial decision;1 many more states responded by
banning same-sex marriage by statute or constitutional amendment.2
1
E.g., Marriage Equality Act, 2011 N.Y. Sess. Laws. ch. 95 (A.
8354) (McKinney) (codified at N.Y. Dom. Rel. Law § 10-a); Act of
Feb. 13, 2012, 2012 Wash. Legis. Serv. ch. 3 (S.S.B. 6239) (West);
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Goodridge v. Dep't of
Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
2
E.g., Tex. Const. art. 1, § 32; Va Const. art. I, § 15-A; Act
of May 24, 1996, 1996 Ill. Legis. Serv. P.A. 89-459 (S.B. 1140)
(West) (codified at 750 Ill. Comp. Stat. 5/212(a)(5)); Act of May
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Congress reacted with the same alarm as many state
legislatures.
Within three years after the Hawaii decision, DOMA
was enacted with strong majorities in both Houses and signed into
law by President Clinton.
addendum
to
this
The entire statute, reprinted in an
decision,
must--having
only
two
operative
paragraphs--be one of the shortest major enactments in recent
history.
Section 3 of DOMA, 1 U.S.C. § 7, defines "marriage" for
purposes of federal law:
In determining the meaning of any Act of
Congress, or of any ruling, regulation, or
interpretation of the various administrative
bureaus and agencies of the United States, the
word "marriage" means only a legal union
between one man and one woman as husband and
wife, and the word "spouse" refers only to a
person of the opposite sex who is a husband or
a wife.
Section 2, which is not at issue here, absolves states from
recognizing
same-sex
marriages
solemnized
in
other
states.
DOMA does not formally invalidate same-sex marriages in
states that permit them, but its adverse consequences for such a
choice are considerable.
Notably, it prevents same-sex married
couples from filing joint federal tax returns, which can lessen tax
burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving
spouse of a same-sex marriage from collecting Social Security
survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves
13, 1997, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265) (West)
(codified at Ind. Code § 31-11-1-1).
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federal employees unable to share their health insurance and
certain other medical benefits with same-sex spouses.
DOMA affects a thousand or more generic cross-references
to marriage in myriad federal laws.
In most cases, the changes
operate to the disadvantage of same-sex married couples in the half
dozen or so states that permit same-sex marriage.
The number of
couples thus affected is estimated at more than 100,000.3
DOMA
has
potentially
serious
adverse
consequences,
Further,
hereafter
described, for states that choose to legalize same-sex marriage.
In Gill v. OPM, No. 10-2207, seven same-sex couples
married in Massachusetts and three surviving spouses of such
marriages
brought
suit
in
federal
district
court
to
enjoin
pertinent federal agencies and officials from enforcing DOMA to
deprive the couples of federal benefits available to opposite-sex
married couples in Massachusetts.
The Commonwealth brought a
companion case, Massachusetts v. DHHS, No. 10-2204, concerned that
DOMA will revoke federal funding for programs tied to DOMA's
opposite-sex marriage definition--such as Massachusetts' state
Medicaid program and veterans' cemeteries.
3
U.S. Census Bureau, Census Bureau Releases Estimates of
Same-Sex
Married
Couples
(Sept.
27,
2011),
http://www.census.gov/newsroom/releases/archives/2010_census/cb11
-cn181.html; U.S. Census Bureau, Same-Sex Unmarried Partner or
Spouse Households by Sex of Householder by Presence of Own
Children: 2010 Census and 2010 American Community Survey,
http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls (last
visited May 22, 2012).
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By
combining
the
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Date Filed: 05/31/2012
income
of
individuals
Entry ID: 5645268
in
same-sex
marriages, Massachusetts' Medicaid program is noncompliant with
DOMA, and the Department of Health and Human Services, through its
Centers for Medicare and Medicaid Services, has discretion to
rescind Medicaid funding to noncomplying states. Burying a veteran
with
his
or
her
same-sex
spouse
removes
federal
"veterans'
cemetery" status and gives the Department of Veterans' Affairs
discretion to recapture all federal funding for the cemetery.
The Department of Justice defended DOMA in the district
court
but,
on
July
8,
2010,
that
court
found
section
3
unconstitutional under the Equal Protection Clause. Gill v. Office
of Pers. Mgmt., 699 F. Supp. 2d 374, 397 (D. Mass. 2010). In the
companion case, the district court accepted the Commonwealth's
argument that section 3 violated the Spending Clause and the Tenth
Amendment.
Massachusetts v. U.S. Dep't of Health & Human Servs.,
698 F. Supp. 2d 234, 249, 253 (D. Mass. 2010).
The
district
court's
judgment
declared
section
3
unconstitutional and enjoined the federal officials and agencies
from enforcing section 3, but the court stayed injunctive relief
pending appeals.
The judgment included specific remedies ordered
for the named plaintiffs in relation to tax, social security and
like claims.
With one qualification--discussed separately below--
the federal defendants have throughout focused solely upon the
district court's premise that DOMA is unconstitutional.
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The Justice Department filed a brief in this court
defending DOMA against all constitutional claims.
Thereafter,
altering its position, the Justice Department filed a revised brief
arguing that the equal protection claim should be assessed under a
"heightened scrutiny" standard and that DOMA failed under that
standard.
It opposed the separate Spending Clause and Tenth
Amendment claims pressed by the Commonwealth.
The Gill plaintiffs
defend the district court judgment on all three grounds.
A delay in proceedings followed the Justice Department's
about face while defense of the statute passed to a group of
Republican leaders of the House of Representatives--the Bipartisan
Legal Advisory Group ("the Legal Group")--who retained counsel and
intervened in the appeal to support section 3.
A large number of
amicus briefs have been filed on both sides of the dispute, some on
both sides proving very helpful to the court.
On appeal from a grant of summary judgment, our review is
de novo, Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011), and
the issues presented are themselves legal in character, even though
informed by background information as to legislative purpose and
"legislative facts" bearing upon the rationality or adequacy of
distinctions drawn by statutes. E.g., FCC v. Beach Commc'ns, Inc.,
508 U.S. 307, 314-20 (1993).
Such information is normally noticed
by courts with the assistance of briefs, records and common
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Daggett v. Comm'n on Governmental Ethics & Election
Practices, 172 F.3d 104, 112 (1st Cir. 1999).
This case is difficult because it couples issues of equal
protection and federalism with the need to assess the rationale for
a congressional statute passed with minimal hearings and lacking in
formal findings.
In addition, Supreme Court precedent offers some
help to each side, but the rationale in several cases is open to
interpretation.
We have done our best to discern the direction of
these precedents, but only the Supreme Court can finally decide
this unique case.
Although our decision discusses equal protection and
federalism
concerns
precedents
under
separately,
both
heads
it
concludes
combine--not
to
that
create
governing
some
new
category of "heightened scrutiny" for DOMA under a prescribed
algorithm, but rather to require a closer than usual review based
in part on discrepant impact among married couples and in part on
the importance of state interests in regulating marriage.
Our
decision then tests the rationales offered for DOMA, taking account
of Supreme Court precedent limiting which rationales can be counted
and of the force of certain rationales.
Equal Protection.
The Legal Group says that any equal
protection challenge to DOMA is foreclosed at the outset by Baker
v. Nelson, 409 U.S. 810 (1972).
There, a central claim made was
that a state's refusal to recognize same-sex marriage violated
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Minnesota had, like DOMA,
defined marriage as a union of persons of the opposite sex, and the
state supreme court had upheld the statute. On appeal, the Supreme
Court
dismissed
question.
summarily
for
want
of
a
substantial
federal
Id.
Baker is precedent binding on us unless repudiated by
subsequent Supreme Court precedent. Hicks v. Miranda, 422 U.S. 332,
344 (1975).
Following Baker, "gay rights" claims prevailed in
several well known decisions, Lawrence v. Texas, 539 U.S. 558
(2003), and Romer
v. Evans, 517 U.S.620 (1996),4 but
neither
mandates that the Constitution requires states to permit same-sex
marriages.
A Supreme Court summary dismissal "prevent[s] lower
courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions."
Bradley, 432 U.S. 173, 176 (1977) (per curiam).
Mandel v.
Baker does not
resolve our own case but it does limit the arguments to ones that
do not presume or rest on a constitutional right to same-sex
marriage.
4
Lawrence struck down Texas' statute forbidding homosexual
sodomy and Romer overturned a Colorado constitutional amendment
that curtailed the right of communities to enact laws to prevent
discrimination against gays and lesbians. Although Lawrence rested
on substantive due process precedent and not equal protection,
precedents under the two rubrics use somewhat related tests as to
levels of scrutiny--applied to liberty interests under the former
and discrimination claims under the latter. Lawrence, 539 U.S. at
575-76, 578; Romer, 517 U.S. at 632, 635.
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Central
to
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this
appeal
governing equal protection analysis.
Date Filed: 05/31/2012
is
Supreme
Court
Entry ID: 5645268
case
law
The Gill plaintiffs say that
DOMA fails under the so-called rational basis test, traditionally
used in cases not involving "suspect" classifications.
The federal
defendants said that DOMA would survive such rational basis scrutiny
but now urge, instead, that DOMA fails under so-called intermediate
scrutiny.
In our view, these competing formulas are inadequate
fully to describe governing precedent.
Certain
suspect
classifications--race,
alienage
and
national origin--require what the Court calls strict scrutiny, which
entails
both
tailoring.
(1995).
and
must
a
compelling
interest
and
narrow
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
Gender-based classifications invoke intermediate scrutiny
be
substantially
governmental objective.5
basis
governmental
review
as
related
to
achieving
an
important
Both are far more demanding than rational
conventionally
applied
in
routine
matters
of
commercial, tax and like regulation.
Equal protection claims tested by this rational basis
standard, famously called by Justice Holmes the "last resort of
constitutional argument,"
rarely succeed.
Buck v. Bell, 274 U.S. 200, 208 (1927),
Courts accept as adequate any plausible factual
5
United States v. Virginia (VMI), 518 U.S. 515, 532-33 (1996);
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982);
Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson,
411 U.S. 677, 682 (1973) (plurality opinion).
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basis, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
487-88 (1955), without regard to Congress' actual motives.
Commc'ns, 508 U.S. at 314.
Beach
Means need not be narrowly drawn to
meet--or even be entirely consistent with--the stated legislative
ends.
Lee Optical, 348 U.S. at 487-88.
Under such a rational basis standard, the Gill plaintiffs
cannot prevail. Consider only one of the several justifications for
DOMA
offered
by
Congress
itself,
namely,
that
broadening
the
definition of marriage will reduce tax revenues and increase social
security payments. This is the converse of the very advantages that
the Gill plaintiffs are seeking, and Congress could rationally have
believed that DOMA would reduce costs, even if newer studies of the
actual economic effects of DOMA suggest that it may in fact raise
costs for the federal government.
The federal defendants conceded that rational basis
review leaves DOMA intact but now urge this court to employ the socalled intermediate scrutiny test used by Supreme Court for gender
discrimination.
Some similarity exists between the two situations
along with some differences, compare Frontiero v. Richardson, 411
U.S. 677, 682-88 (1973) (plurality opinion) (describing criteria for
categorization).
But extending intermediate scrutiny to sexual
preference classifications is not a step open to us.
First, this court in Cook v. Gates, 528 F.3d 42 (1st Cir.
2008), cert. denied, 129 S. Ct. 2763 (2009), has already declined
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to create a major new category of "suspect classification" for
statutes distinguishing based on sexual preference.
Cook rejected
an equal protection challenge to the now-superceded "Don't Ask,
Don't Tell" policy adopted by Congress for the military, pointing
out that Romer itself avoided the suspect classification label.
Cook, 528 F.3d at 61-62.
This binds the panel.
San Juan Cable LLC
v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010).
Second, to create such a new suspect classification for
same-sex relationships would have far-reaching implications--in
particular, by implying an overruling of Baker, which we are neither
empowered to do nor willing to predict.
Nothing indicates that the
Supreme Court is about to adopt this new suspect classification when
it conspicuously failed to do so in Romer--a case that could readily
have been disposed by such a demarche.
That such a classification
could overturn marriage laws in a huge majority of individual states
underscores the implications.
However, that is not the end of the matter.
Without
relying on suspect classifications, Supreme Court equal protection
decisions have both intensified scrutiny of purported justifications
where minorities are subject to discrepant treatment and have
limited the permissible justifications.
And (as we later explain),
in areas where state regulation has traditionally governed, the
Court
may
require
that
the
federal
government
intervention be shown with special clarity.
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interest
in
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In a set of equal protection decisions, the Supreme Court
has now several times struck down state or local enactments without
invoking any suspect classification.
In each, the protesting group
was historically disadvantaged or unpopular, and the statutory
justification seemed thin, unsupported or impermissible.
It is
these decisions--not classic rational basis review--that the Gill
plaintiffs and the Justice Department most usefully invoke in their
briefs (while seeking to absorb them into different and more rigid
categorical rubrics).
The oldest of the decisions, U.S. Dept. of Agric. v.
Moreno, 413 U.S. 528 (1973), invalidated Congress' decision to
exclude from the food stamp program households containing unrelated
individuals.
Disregarding
purported
justifications
that
such
households were more likely to under-report income and to evade
detection,
the
Court
closely
scrutinized
the
legislation's
fit--finding both that the rule disqualified many otherwise-eligible
and particularly needy households, and a "bare congressional desire
to harm a politically unpopular group."
Id. at 534, 537-38.
The second, City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985), overturned a local ordinance as applied to the
denial of a special permit for operating a group home for the
mentally disabled.
The Court found unconvincing interests like
protecting the inhabitants against the risk of flooding, given that
nursing or convalescent homes were allowed without a permit; mental
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disability
too
had
population
density.
no
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connection
All
that
to
alleged
remained
were
Entry ID: 5645268
concerns
"mere
about
negative
attitudes, or fear, unsubstantiated by factors which are properly
cognizable in a zoning proceeding."
Id. at 448.
Finally, in Romer v. Evans, 517 U.S. 620 (1996), the
Court struck down a provision in Colorado's constitution prohibiting
regulation to protect homosexuals from discrimination.
The Court,
calling "unprecedented" the "disqualification of a class of persons
from the right to seek specific protection from the law," deemed the
provision a "status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate
state interests."
Id. at 632-33, 635.
These three decisions did not adopt some new category of
suspect classification or employ rational basis review in its
minimalist form; instead, the Court rested on the case-specific
nature of the discrepant treatment, the burden imposed, and the
infirmities of the justifications offered.
Several Justices have
remarked on this--both favorably, City of Cleburne, 473 U.S. at 45155 (1985) (Stevens, J., concurring), and unfavorably, United States
v.
Virginia
(VMI),
518
U.S.
515,
567
(1996)
(Scalia,
J.,
dissenting).
Circuit courts, citing these same cases, have similarly
concluded that equal protection assessments are sensitive to the
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circumstances of the case and not dependent entirely on abstract
categorizations.6
As one distinguished judge observed:
Judges and commentators have noted that the
usually deferential "rational basis" test has
been applied with greater rigor in some
contexts, particularly those in which courts
have had reason to be concerned about possible
discrimination.
United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995) (Calabresi,
J., concurring) (citing City of Cleburne as an example).
There is
nothing remarkable about this: categories are often approximations
and are themselves constructed by weighing of underlying elements.
All three of the cited cases--Moreno, City of Cleburne
and Romer--stressed the historic patterns of disadvantage suffered
by the group adversely affected by the statute.
As with the women,
the poor and the mentally impaired, gays and lesbians have long been
the subject of discrimination.
Lawrence, 539 U.S. at 571.
The
Court has in these cases undertaken a more careful assessment of the
justifications than the light scrutiny offered by conventional
rational basis review.
As for burden, the combined effect of DOMA's restrictions
on
federal
benefits
will
not
prevent
same-sex
marriage
where
permitted under state law; but it will penalize those couples by
limiting tax and social security benefits to opposite-sex couples
6
E.g., Ramos v. Town of Vernon, 353 F.3d 171, 175 (2d Cir.
2003); Milner v. Apfel, 148 F.3d 812, 816 (7th Cir.), cert. denied,
525 U.S. 1024 (1998); Price v. Tanner, 855 F.2d 820, 829 n.4 (11th
Cir. 1988), cert. denied, 489 U.S. 1081 (1989).
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in their own and all other states. For those married same-sex
couples of which one partner is in federal service, the other cannot
take advantage of medical care and other benefits available to
opposite-sex partners in Massachusetts and everywhere else in the
country.
These burdens are comparable to those the Court found
substantial in Moreno, City of Cleburne, and Romer.
Moreno, like
this case, involved meaningful economic benefits; City of Cleburne
involved the opportunity to secure housing; Romer, the chance to
secure equal protection of the laws on the same terms as other
groups.
Loss of survivor's social security, spouse-based medical
care and tax benefits are major detriments on any reckoning;
provision for retirement and medical care are, in practice, the main
components of the social safety net for vast numbers of Americans.
Accordingly, we conclude that the extreme deference
accorded to ordinary economic legislation in cases like Lee Optical
would not be extended to DOMA by the Supreme Court; and without
insisting on "compelling" or "important" justifications or "narrow
tailoring," the Court would scrutinize with care the purported bases
for the legislation.
element
absent
Before providing such scrutiny, a separate
in
Moreno,
City
of
Cleburne,
and
plaintiffs
and
Romer--federalism--must be considered.
Federalism.
In
assailing
DOMA,
the
especially the Commonwealth rely directly on limitations attributed
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to the Spending Clause of the Constitution and the Tenth Amendment;
the Justice Department, along with the Legal Group, rejects those
claims.
In our view, neither the Tenth Amendment nor the Spending
Clause invalidates DOMA; but Supreme Court precedent relating to
federalism-based challenges to federal laws reinforce the need for
closer than usual scrutiny of DOMA's justifications and diminish
somewhat the deference ordinarily accorded.
It is true that DOMA intrudes extensively into a realm
that has from the start of the nation been primarily confided to
state
regulation--domestic
relations
and
the
definition
and
incidents of lawful marriage--which is a leading instance of the
states' exercise of their broad police-power authority over morality
and culture.
As the Supreme Court observed long ago,
[t]he whole subject of the domestic relations
of husband and wife, parent and child, belongs
to the laws of the States and not to the laws
of the United States.
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting In re
Burrus, 136 U.S. 586, 593-94 (1890)); see also Loving v. Virginia,
388 U.S. 1, 7 (1967) (marriage).
Consonantly, Congress has never purported to lay down a
general code defining marriage or purporting to bind to the states
to such a regime.
anti-fraud
Rather, in individual situations--such as the
criteria
in
immigration
law,
8
U.S.C.
§ 1186a(b)(1)(A)(i)--Congress has provided its own definitions
limited to the particular program or personnel involved.
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precedent exists for DOMA's sweeping general "federal" definition
of marriage for all federal statutes and programs.
Nevertheless, Congress surely has an interest in who
counts as married. The statutes and programs that section 3 governs
are federal regimes such as social security, the Internal Revenue
Code and medical insurance for federal workers; and their benefit
structure requires deciding who is married to whom.
That Congress
has traditionally looked to state law to determine the answer does
not mean that the Tenth Amendment or Spending Clause require it to
do so.
Supreme Court interpretations of the Tenth Amendment have
varied over the years but those in force today have struck down
statutes only where Congress sought to commandeer state governments
or otherwise directly dictate the internal operations of state
government.
Printz v. United States, 521 U.S. 898, 935 (1997); New
York v. United States, 505 U.S. 144, 188 (1992).
Whatever its
spin-off effects, section 3 governs only federal programs and
funding, and does not share these two vices of commandeering or
direct command.
Neither
does
DOMA
run
afoul
of
the
"germaneness"
requirement that conditions on federal funds must be related to
federal purposes.
(1987).
South Dakota v. Dole, 483 U.S. 203, 207-08
The requirement is not implicated where, as here, Congress
merely defines the terms of the federal benefit.
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In Dole, the
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Supreme Court upheld a condition by which federal funds for highway
construction depended on a state's adoption of a minimum drinking
age for all driving on state roadways.
483 U.S. at 205.
DOMA
merely limits the use of federal funds to prescribed purposes.
However, the denial of federal benefits to same-sex
couples lawfully married does burden the choice of states like
Massachusetts to regulate the rules and incidents of marriage;
notably, the Commonwealth stands both to assume new administrative
burdens and to lose funding for Medicaid or veterans' cemeteries
solely on account of its same-sex marriage laws. These consequences
do not violate the Tenth Amendment or Spending Clause, but Congress'
effort to put a thumb on the scales and influence a state's decision
as to how to shape its own marriage laws does bear on how the
justifications are assessed.
In United States v. Morrison, 529 U.S. 598 (2000), and
United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court
scrutinized with special care federal statutes intruding on matters
customarily
within
state
control.
The
lack
of
adequate
and
persuasive findings led the Court in both cases to invalidate the
statutes under the Commerce Clause even though nothing more than
rational basis review is normally afforded in such cases.
The Supreme Court has made somewhat similar statements
about
the
need
for
scrutiny
when
examining
federal
intruding on regulation of state election processes.
-22-
statutes
Nw. Austin
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Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2511 (2009);7
cf. City of Boerne v. Flores, 521 U.S. 507, 534 (1997) (calling RFRA
a "considerable congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the health and
welfare of their citizens").
True,
these
federalism
cases
examined
the
reach
of
federal power under the Commerce Clause and other sources of
constitutional authority not invoked here; but a statute that
violates equal protection is likewise beyond the power of Congress.
See Moreno, 413 U.S. at 541 (Douglas, J., concurring).
Given that
DOMA intrudes broadly into an area of traditional state regulation,
a closer examination of the justifications that would prevent DOMA
from violating equal protection (and thus from exceeding federal
authority) is uniquely reinforced by federalism concerns.
DOMA's Rationales.
Despite its ramifying application
throughout the U.S. Code, only one day of hearings was held on DOMA,
Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm.
7
The majority, focusing on the related issue of fit, said that
"a departure from the fundamental principle of equal sovereignty
[between states] requires a showing that a statute's disparate
geographic coverage is sufficiently related to the problem that it
targets." Nw. Austin, 129 S. Ct. at 2512. Justice Thomas went a
step further, stating "because States still retain sovereign
authority over their election systems, any measure enacted in
furtherance of the Fifteenth Amendment must be closely examined to
ensure that its encroachment on state authority in this area is
limited to the appropriate enforcement of this ban on
discrimination." Id. at 2520 (Thomas, J., concurring in part and
dissenting in part).
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on the Constitution of the H. Comm. on the Judiciary, 104th Cong.
(1996) ("Hearing"), and none of the testimony concerned DOMA's
effects on the numerous federal programs at issue.
Some of the
odder consequences of DOMA testify to the speed with which it was
adopted.8
The statute, only a few paragraphs in length, is devoid
of the express prefatory findings commonly made in major federal
laws.
E.g., 15 U.S.C. § 80a-1; 16 U.S.C. § 1531; 20 U.S.C. § 1400;
21 U.S.C. § 801; 29 U.S.C. § 151; id. § 1001; 42 U.S.C. § 7401.
Accordingly, in discerning and assessing Congress' basis for DOMA
our main resort is the House Committee report and, in lesser
measure, to variations of its themes advanced in the briefs before
us.
The committee report stated:
[T]he Committee briefly discusses four of the
governmental interests advanced by this
legislation: (1) defending and nurturing the
institution of traditional, heterosexual
marriage; (2) defending traditional notions of
morality; (3) protecting state sovereignty and
democratic self-governance; and (4) preserving
scarce government resources.
8
For example, DOMA's definition of marriage arguably
undermines
both
federal
ethics
laws,
5
U.S.C.
app.
§§ 102(e)(1)(A)-(D), 501(c), and abuse reporting requirements in
the military, 10 U.S.C. § 1787(a), insofar as it facially excludes
same-sex married couples from their strictures. Other curiosities
likely unintended are possible impacts on anti-nepotism provisions,
5 U.S.C. §§ 3110(a)(3), (b), 2302(b)(7); judicial recusals, 28
U.S.C. § 455(b)(4), restrictions on receipt of gifts, 2 U.S.C.
§ 31-2(a), and on travel reimbursement, 31 U.S.C. § 1353(a); and
the crimes of bribery of federal officials, 18 U.S.C. § 208(a), and
threats to family members of federal officials, id. § 115.
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H.R. Rep. No. 104-664, at 12 (1996).
The penultimate reason listed above was not directed to
section 3--indeed, is antithetical to it--but was concerned solely
with section 2, which reserved a state's power not to recognize
same-sex marriages performed in other states.
Thus, we begin with
the others, reserving for separate consideration the claim strongly
pressed by the Gill plaintiffs that DOMA should be condemned because
its unacknowledged but alleged central motive was hostility to
homosexuality.
First, starting with the most concrete of the cited
reasons--"preserving scarce government resources"--it is said that
DOMA will save money for the federal government by limiting tax
savings and avoiding social security and other payments to spouses.
This may well be true, or at least might have been thought true;
more detailed recent analysis indicates that DOMA is more likely on
a net basis to cost the government money.9
But,
where
the
distinction
is
drawn
against
a
historically disadvantaged group and has no other basis, Supreme
Court precedent marks this as a reason undermining rather than
bolstering the distinction.
Plyler v. Doe, 457 U.S. 202, 227
(1982); Romer, 517 U.S. at 635.
The reason, derived from equal
9
Cong. Budget Office, The Potential Budgetary Impact of
Recognizing
Same-Sex
Marriages
(2004),
available
at
http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/55xx/doc5
559/06-21-samesexmarriage.pdf.
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protection analysis, is that such a group has historically been less
able to protect itself through the political process.
Plyler, 457
U.S. at 218 n.14; United States v. Carolene Prods. Co., 304 U.S.
144, 152 n.4 (1938).
A second rationale of a pragmatic character, advanced by
the
Legal
Group's
brief
and
several
others,
child-rearing in the context of stable marriage.10
is
to
support
The evidence as
to child rearing by same-sex couples is the subject of controversy,
but we need not enter the debate.
Whether or not children raised
by opposite-sex marriages are on average better served, DOMA cannot
preclude same-sex couples in Massachusetts from adopting children
or prevent a woman partner from giving birth to a child to be raised
by both partners.
Although the House Report is filled with encomia to
heterosexual
marriage,
DOMA
does
not
increase
benefits
to
opposite-sex couples--whose marriages may in any event be childless,
unstable or both--or explain how denying benefits to same-sex
couples will reinforce heterosexual marriage. Certainly, the denial
will not affect the gender choices of those seeking marriage.
This
is not merely a matter of poor fit of remedy to perceived problem,
10
The House Report refers obliquely to the importance of
heterosexual marriage in "encouraging responsible procreation and
child-rearing," H.R. Rep. No. 104-664, at 13, but the subcommittee
chair at the House hearing began by saying that "heterosexual
marriage provides the ideal structure within which to beget and
raise children." Hearing, supra, at 1 (opening statement of Rep.
Canady).
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Lee Optical, 348 U.S. at 487-88; City of Cleburne, 473 U.S. at
446-50, but a lack of any demonstrated connection between DOMA's
treatment of same-sex couples and its asserted goal of strengthening
the bonds and benefits to society of heterosexual marriage.
A third reason, moral disapproval of homosexuality, is
one of DOMA's stated justifications:
Civil laws that permit only heterosexual
marriage reflect and honor a collective moral
judgment about human sexuality. This judgment
entails
both
moral
disapproval
of
homosexuality, and a moral conviction that
heterosexuality
better
comports
with
traditional
(especially
Judeo-Christian)
morality.
H.R. Rep. No. 104-664, at 15-16 (emphasis added); see also, e.g.,
142
Cong.
Rec.
16,972
(1996)
(statement
of
Rep.
Coburn)
(homosexuality "morally wrong").
For generations, moral disapproval has been taken as an
adequate basis for legislation, although usually in choices made by
state legislators to whom general police power is entrusted.
But,
speaking directly of same-sex preferences, Lawrence ruled that moral
disapproval alone cannot justify legislation discriminating on this
basis.
539 U.S. at 577-78.
Moral judgments can hardly be avoided
in legislation, but Lawrence and Romer have undercut this basis.
Cf. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
Finally, it has been suggested by the Legal Group's brief
that, faced with a prospective change in state marriage laws,
Congress was entitled to "freeze" the situation and reflect.
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the statute was not framed as a temporary time-out; and it has no
expiration date, such as one that Congress included in the Voting
Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original
expiration date and later extensions); City of Boerne, 521 U.S. at
533.
The House Report's own arguments--moral, prudential and
fiscal--make clear that DOMA was not framed as a temporary measure.
Congress did emphasize a related concern, based on the
Hawaii Supreme Court's decision in Baehr, that state judges would
impose same-sex marriage on unwilling states.
104-664, at 5-6, 12, 16-17.
H.R. Rep. No.
But almost all states have readily
amended constitutions, as well as elected judges, and can protect
themselves against what their citizens may regard as overreaching.
The fear that Hawaii could impose same-sex marriage on sister states
through the Full Faith and Credit Clause, id. at 7-9, relates solely
to section 2 of DOMA, which is not before us.
We conclude, without resort to suspect classifications or
any impairment of Baker, that the rationales offered do not provide
adequate support for section 3 of DOMA.
Several of the reasons
given do not match the statute and several others are diminished by
specific holdings in Supreme Court decisions more or less directly
on point.
If we are right in thinking that disparate impact on
minority interests and federalism concerns both require somewhat
more in this case than almost automatic deference to Congress' will,
this statute fails that test.
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Invalidating
a
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federal
statute
is
an
Entry ID: 5645268
unwelcome
responsibility for federal judges; the elected Congress speaks for
the entire nation, its judgment and good faith being entitled to
utmost respect.
Gregg v. Georgia, 428 U.S. 153, 175 (1976)
(plurality opinion).
But a lower federal court such as ours must
follow its best understanding of governing precedent, knowing that
in large matters the Supreme Court will correct mis-readings (and
even if it approves the result will formulate its own explanation).
In reaching our judgment, we do not rely upon the charge
that
DOMA's
homosexuality.
hidden
but
dominant
purpose
was
hostility
to
The many legislators who supported DOMA acted from
a variety of motives, one central and expressed aim being to
preserve the heritage of marriage as traditionally defined over
centuries of Western civilization.
12, 16.
See H.R. Rep. No. 104-664, at
Preserving this institution is not the same as "mere moral
disapproval of an excluded group,"
Lawrence, 539 U.S. at 585
(O'Connor, J., concurring), and that is singularly so in this case
given the range of bipartisan support for the statute.
The opponents of section 3 point to selected comments
from a few individual legislators; but the motives of a small group
cannot taint a statute supported by large majorities in both Houses
and signed by President Clinton. Traditions are the glue that holds
society together, and many of our own traditions rest largely on
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belief and familiarity--not on benefits firmly provable in court.
The desire to retain them is strong and can be honestly held.
For 150 years, this desire to maintain tradition would
alone have been justification enough for almost any statute.
This
judicial deference has a distinguished lineage, including such
figures as Justice Holmes, the second Justice Harlan, and Judges
Learned Hand and Henry Friendly. But Supreme Court decisions in the
last fifty years call for closer scrutiny of government action
touching upon minority group interests and of federal action in
areas of traditional state concern.
To conclude, many Americans believe that marriage is the
union of a man and a woman, and most Americans live in states where
that is the law today.
One virtue of federalism is that it permits
this diversity of governance based on local choice, but this applies
as well to the states that have chosen to legalize same-sex
marriage.
of
Under current Supreme Court authority, Congress' denial
federal
benefits
to
same-sex
couples
lawfully
married
in
Massachusetts has not been adequately supported by any permissible
federal interest.
Hara's Health Benefits Claim.
A distinct, if much
narrower, issue is raised by Dean Hara, one of the Gill plaintiffs.
Although the district court ordered the relief Hara sought for
Social Security lump-sum death benefits, the district court found
that relief on his second claim for health coverage required a
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further determination on a precondition that is the subject of a
proceeding earlier brought by Hara and now pending in the Federal
Circuit.
Hara v. Office of Pers. Mgmt., No. 2009-3134 (Fed. Cir.
docketed Mar. 17, 2009).
Hara was married under Massachusetts law to a nowdeceased Congressman, and Hara has sought to be enrolled as a
surviving spouse for health benefits under the Congressman's Federal
Employees' Health Benefit Plan ("FEHBP").
For this, (1) Hara would
have to be an eligible "annuitant" under the annuity statute, and
(2) the Congressman had to have enrolled in the health benefit plan
for "self and family," which he had not done.
5 U.S.C. § 8341; 5
C.F.R. §§ 890.303(c), 890.302(a)(1).
Acting on an application by Hara for a survivor annuity
benefit, the Office of Personnel Management ("OPM") had previously
ruled that Hara was ineligible to receive an annuity both because
he was not a spouse under DOMA and because the Congressman had not
elected such coverage.
Such determinations as to annuities are
reviewed exclusively by the Merit Systems Protection Board ("MSPB"
or "Board") and then exclusively by the Federal Circuit.
5 U.S.C.
§§ 8347, 8341, 7703(b)(1); 28 U.S.C. 1295(a)(9).
On review, the Board upheld the denial of coverage solely
because of DOMA, finding the failure to elect coverage not to bar
annuitant status.
Hara sought further review in the Federal
Circuit, and that case has been stayed pending resolution of the
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DOMA issue in this circuit.
order staying proceedings).
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Entry ID: 5645268
Hara, No. 2009-3134 (Oct. 15, 2010
Thus, now--as at the time the district
court issued its judgment--a Board determination is in force that
Hara lacks annuitant status.
OPM has separately denied Hara's claim for FEHBP health
enrollment because of the Congressman's failure to elect "self and
family"
coverage.
Although
the
district
court
found
DOMA
unconstitutional, it refused to resolve Hara's health coverage claim
now because it still depends on Hara establishing eligibility for
annuitant status, which is at issue in his pending Federal Circuit
appeal.
Whether or not Hara lacked standing, the district court
showed prudence in deferring on this issue to the Federal Circuit.
Hara says in substance that the Federal Circuit has to
recognize his annuitant status because the Board has waived or
forfeited any objection based on the failure to elect spousal
survivor coverage; but the Department of Justice does not concede
the point, which the Federal Circuit presumably will resolve.
If
Hara prevails there, district court injunctive relief to secure his
health coverage is likely to be unnecessary, but our affirmance is
without prejudice to such a future request by Hara.
The judgment of the district court is affirmed for the
reasons
and
to
the
extent
stated
above.
Anticipating
that
certiorari will be sought and that Supreme Court review of DOMA is
highly likely, the mandate is stayed, maintaining the district
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court's stay of its injunctive judgment, pending further order of
this court. The parties will bear their own costs on these appeals.
It is so ordered.
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Case: 10-2204
Document: 00116385384
Page: 34
Date Filed: 05/31/2012
Entry ID: 5645268
ADDENDUM
SECTION. 1. SHORT TITLE.
This Act may be cited as the "Defense of Marriage Act".
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL.—Chapter 115 of title 28, United States
Code, is amended by adding after section 1738B the following:
"§ 1738C. Certain acts, records, and proceedings and the
effect thereof
"No State, territory, or possession of the United States,
or Indian tribe, shall be required to give effect to any public
act, record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of
the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim
arising from such relationship.".
(b) CLERICAL AMENDMENT.—The table of sections at the
beginning of chapter 115 of title 28, United States Code, is
amended
by inserting after the item relating to section 1738B the following
new item:
"1738C. Certain acts, records, and proceedings and the effect
thereof.".
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL.—Chapter 1 of title 1, United States Code,
is amended by adding at the end the following:
"§ 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the word
'marriage' means only a legal union between one man and one woman
as husband and wife, and the word 'spouse' refers only to a person
of the opposite sex who is a husband or a wife.".
-34-
Case: 10-2204
Document: 00116385384
Page: 35
Date Filed: 05/31/2012
Entry ID: 5645268
(b) CLERICAL AMENDMENT.—The table of sections at the
beginning of chapter 1 of title 1, United States Code, is amended
by inserting after the item relating to section 6 the following new
item:
"7.
Definition
of
'marriage'
-35-
and
'spouse'."
Litigators Making a Difference
Hirabayashi v. United States
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
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320 U.S. 81 (1943)
HIRABAYASHI
v.
UNITED STATES.
No. 870.
Supreme Court of United States.
Argued May 10, 11, 1943.
Decided June 21, 1943.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
82
*82 Messrs. Frank L. Walters and Harold Evans, with whom Messrs. Osmond K. Fraenkel, Arthur G. Barnett,
Edwin M. Borchard, Brien McMahon, and William Draper Lewis were on the brief (Mr. Alfred J. Schweppe
entered an appearance), for Hirabayashi.
Solicitor General Fahy, with whom Messrs. Edward J. Ennis, Arnold Raum, John L. Burling, and Leo Gitlin
were on the brief, for the United States.
83
Briefs of amici curiae were filed by Messrs. Arthur Garfield Hays, Osmond K. Fraenkel, and A.L. Wirin on
behalf *83 of the American Civil Liberties Union; by Mr. A.L. Wirin on behalf of the Japanese American
Citizens League; and by Mr. Jackson H. Ralston on behalf of the Northern California Branch of the American
Civil Liberties Union, — in support of Hirabayashi; and by Messrs. Robert W. Kenny, Attorney General of
California, I.H. Van Winkle, Attorney General of Oregon, Smith Troy, Attorney General of the State of
Washington, and Fred E. Lewis, Chief Assistant and Acting Attorney General of the State of Washington, on
behalf of those States, — urging affirmance.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of
Congress of March 21, 1942, 56 Stat. 173, which makes it a misdemeanor knowingly to disregard restrictions
made applicable by a military commander to persons in a military area prescribed by him as such, all as
authorized by an Executive Order of the President.
The questions for our decision are whether the particular restriction violated, namely that all persons of
Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00
p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation
by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between
citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.
84
The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had
on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense
Command, Fourth Army, failed to remain in his place of residence *84 in the designated military area between
the hours of 8:00 o'clock p.m. and 6:00 a.m. The first count charges that appellant, on May 11 and 12, 1942,
had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil
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Control Station within the designated area, it appearing that appellant's required presence there was a
preliminary step to the exclusion from that area of persons of Japanese ancestry.
By demurrer and plea in abatement, which the court overruled (46 F. Supp. 657), appellant asserted that the
indictment should be dismissed because he was an American citizen who had never been a subject of and
had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an
unconstitutional delegation of Congressional power. On the trial to a jury it appeared that appellant was born in
Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never
afterward returned to Japan; that he was educated in the Washington public schools and at the time of his
arrest was a senior in the University of Washington; that he had never been in Japan or had any association
with Japanese residing there.
The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12,
1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it
had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The
evidence also showed that for like reason he was away from his place of residence after 8:00 p.m. on May 9,
1942. The jury returned a verdict of guilty on both counts and appellant was sentenced to imprisonment for a
term of three months on each, the sentences to run concurrently.
85
On appeal the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired
instructions *85 for the decision of the case. See § 239 of the Judicial Code as amended, 28 U.S.C. § 346.
Acting under the authority conferred upon us by that section we ordered that the entire record be certified to
this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had
been brought here by appeal. Since the sentences of three months each imposed by the district court on the
two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect
to the first count if we find that the conviction on the second count, for violation of the curfew order, must be
sustained. Brooks v. United States, 267 U.S. 432, 441; Gorin v. United States, 312 U.S. 19, 33.
The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has
been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing
upon the authority of the military commander to make and execute the order, it becomes necessary to
consider in some detail the official action which preceded or accompanied the order and from which it derives
its purported authority.
On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress
declared war against Japan. 55 Stat. 795. On February 19, 1942, the President promulgated Executive Order
No. 9066. 7 Federal Register 1407. The Order recited that "the successful prosecution of the war requires
every possible protection against espionage and against sabotage to national-defense material, nationaldefense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533,
86
as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655."
By virtue of the authority vested *86 in him as President and as Commander in Chief of the Army and Navy,
the President purported to "authorize and direct the Secretary of War, and the Military Commanders whom he
may from time to time designate, whenever he or any designated Commander deems such action necessary
or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military
Commander may determine, from which any or all persons may be excluded, and with respect to which, the
right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War
or the appropriate Military Commander may impose in his discretion."
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On February 20, 1942, the Secretary of War designated Lt. General J.L. DeWitt as Military Commander of
the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the
duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public
Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the entire Pacific Coast "by its
geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations
with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of
sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such
enemy operations." It stated that "the present situation requires as a matter of military necessity the
establishment in the territory embraced by the Western Defense Command of Military Areas and Zones
thereof"; it specified and designated as military areas certain areas within the Western Defense Command;
87
and it declared that "such persons or classes of persons as the situation may require" would, by subsequent
proclamation, be excluded from certain of these *87 areas, but might be permitted to enter or remain in certain
others, under regulations and restrictions to be later prescribed. Among the military areas so designated by
Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all
the coastal region of the three Pacific Coast states, including the City of Seattle, Washington, where appellant
resided. Military Area No. 2, designated by the same proclamation, included those parts of the coastal states
and of Arizona not placed within Military Area No. 1.
Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like recitals and designated
further military areas and zones. It contained like provisions concerning the exclusion, by subsequent
proclamation, of certain persons or classes of persons from these areas, and the future promulgation of
regulations and restrictions applicable to persons remaining within them. 7 Federal Register 2405.
An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority,
in the Office for Emergency Management of the Executive Office of the President; it authorized the Director of
War Relocation Authority to formulate and effectuate a program for the removal, relocation, maintenance and
supervision of persons designated under Executive Order No. 9066, already referred to; and it conferred on
the Director authority to prescribe regulations necessary or desirable to promote the effective execution of
the program. 7 Federal Register 2165.
Congress, by the Act of March 21, 1942, provided: "That whoever shall enter, remain in, leave, or commit any
act in any military area or military zone prescribed, under the authority of an Executive order of the President,
by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the
88
restrictions applicable to any such area or zone or contrary *88 to the order of the Secretary of War or any
such military commander, shall, if it appears that he knew or should have known of the existence and extent of
the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon
conviction shall be liable" to fine or imprisonment, or both.
Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register
2543. After referring to the previous designation of military areas by Public Proclamations Nos. 1 and 2, it
recited that ". . . the present situation within these Military Areas and Zones requires as a matter of military
necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese
ancestry within said Military Areas and Zones . . ." It accordingly declared and established that from and after
March 27, 1942, "all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese
ancestry residing or being within the geographical limits of Military Area No. 1 . . . shall be within their place of
residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours
of curfew." It also imposed certain other restrictions on persons of Japanese ancestry, and provided that any
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person violating the regulations would be subject to the criminal penalties provided by the Act of Congress of
March 21, 1942.
Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant
to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory
of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7
Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese
89
ancestry, both alien and non-alien, be excluded from a specified portion of Military Area No. 1 in Seattle,
including appellant's place of residence, *89 and it required a member of each family, and each individual living
alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle.
Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the
necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited
all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders
should permit. 7 Federal Register 2601.
Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of
the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the
challenged Act of Congress purports to punish with criminal penalties disobedience of such an order. His
contentions are only that Congress unconstitutionally delegated its legislative power to the military
commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in
other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of
Japanese descent and those of other ancestry.
It will be evident from the legislative history that the Act of March 21, 1942, contemplated and authorized the
curfew order which we have before us. The bill which became the Act of March 21, 1942, was introduced in
the Senate on March 9th and in the House on March 10th at the request of the Secretary of War who, in
letters to the Chairman of the Senate Committee on Military Affairs and to the Speaker of the House, stated
90
explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order
No. 9066. This appears in the committee reports on the bill, which set out in full the Executive Order and the
Secretary's letter. 88 Cong. Rec. 2722, 2725; H.R. Rep. No. 1906, 77th Cong., *90 2d Sess.; S. Rep. No.
1171, 77th Cong., 2d Sess. And each of the committee reports expressly mentions curfew orders as one of
the types of restrictions which it was deemed desirable to enforce by criminal sanctions.
When the bill was under consideration, General DeWitt had published his Proclamation No. 1 of March 2,
1942, establishing Military Areas Nos. 1 and 2, and that Proclamation was before Congress. S. Rep. No.
1171, 77th Cong., 2d Sess., p. 2; see also 88 Cong. Rec. 2724. A letter of the Secretary to the Chairman of
the House Military Affairs Committee, of March 14, 1942, informed Congress that "General DeWitt is strongly
of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the
appropriate military commander to enforce curfews and other restrictions within military areas and zones"; and
that General DeWitt had "indicated that he was prepared to enforce certain restrictions at once for the
purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement
machinery had been set up." H.R. Rep. No. 1906, 77th Cong., 2d Sess., p. 3. See also letter of the Acting
Secretary of War to the Chairman of the Senate Military Affairs Committee, March 13, 1942, 88 Cong. Rec.
2725.
91
The Chairman of the Senate Military Affairs Committee explained on the floor of the Senate that the purpose
of the proposed legislation was to provide means of enforcement of curfew orders and other military orders
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made pursuant to Executive Order No. 9066. He read General DeWitt's Public Proclamation No. 1, and
statements from newspaper reports that "evacuation of the first Japanese aliens and American-born
Japanese" was about to begin. He also stated to the Senate that "reasons for suspected widespread fifthcolumn activity among Japanese" were to be found in the system of dual citizenship which Japan deemed
applicable to American-born *91 Japanese, and in the propaganda disseminated by Japanese consuls,
Buddhist priests and other leaders, among American-born children of Japanese. Such was stated to be the
explanation of the contemplated evacuation from the Pacific Coast area of persons of Japanese ancestry,
citizens as well as aliens. 88 Cong. Rec. 2722-26; see also pp. 2729-30. Congress also had before it the
Preliminary Report of a House Committee investigating national defense migration, of March 19, 1942, which
approved the provisions of Executive Order No. 9066, and which recommended the evacuation, from military
areas established under the Order, of all persons of Japanese ancestry, including citizens. H.R. Rep. No.
1911, 77th Cong., 2d Sess. The proposed legislation provided criminal sanctions for violation of orders, in
terms broad enough to include the curfew order now before us, and the legislative history demonstrates that
Congress was advised that curfew orders were among those intended, and was advised also that regulation
of citizen and alien Japanese alike was contemplated.
The conclusion is inescapable that Congress, by the Act of March 21, 1942, ratified and confirmed Executive
Order No. 9066. Prize Cases, 2 Black 635, 671; Hamilton v. Dillin, 21 Wall. 73, 96-97; United States v.
Heinszen & Co., 206 U.S. 370, 382-84; Tiaco v. Forbes, 228 U.S. 549, 556; Isbrandtsen-Moller Co. v. United
States, 300 U.S. 139, 146-48; Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 300-03; Mason Co. v. Tax
Comm'n, 302 U.S. 186, 208. And so far as it lawfully could, Congress authorized and implemented such
92
curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President.
The question then is not one of Congressional power to delegate to the President the promulgation of the
Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority
to impose the curfew *92 restriction here complained of. We must consider also whether, acting together,
Congress and the Executive could leave it to the designated military commander to appraise the relevant
conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place
were appropriate for the promulgation of the curfew order and whether the order itself was an appropriate
means of carrying out the Executive Order for the "protection against espionage and against sabotage" to
national defense materials, premises and utilities. For reasons presently to be stated, we conclude that it was
within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew
order for the period under consideration and that its promulgation by the military commander involved no
unlawful delegation of legislative power.
Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by
protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying
and confirming the Executive Order, were each an exercise of the power to wage war conferred on the
Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the
Constitution. See Ex parte Quirin, 317 U.S. 1, 25-26. We have no occasion to consider whether the
President, acting alone, could lawfully have made the curfew order in question, or have authorized others to
make it. For the President's action has the support of the Act of Congress, and we are immediately concerned
with the question whether it is within the constitutional power of the national government, through the joint
action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise
of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall.
93
2; Ex parte Quirin, supra. Appellant has been *93 tried and convicted in the civil courts and has been
subjected to penalties prescribed by Congress for the acts committed.
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The war power of the national government is "the power to wage war successfully." See Charles Evans
Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity
so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning
of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense,
including the protection of war materials and the members of the armed forces from injury and from the
dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States,
11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506-07; Selective Draft Law Cases, 245 U.S. 366;
McKinley v. United States, 249 U.S. 397; United States v. Macintosh, 283 U.S. 605, 622-23. Since the
Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes
and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and
discretion in determining the nature and extent of the threatened injury or danger and in the selection of the
means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat.
19, 29. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the
choice of means by those branches of the Government on which the Constitution has placed the responsibility
of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for
theirs.
94
The actions taken must be appraised in the light of the conditions with which the President and Congress
were confronted in the early months of 1942, many of which, *94 since disclosed, were then peculiarly within
the knowledge of the military authorities. On December 7, 1941, the Japanese air forces had attacked the
United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic
representatives were conducting negotiations with our State Department ostensibly for the peaceful
settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked
Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. On the following day their army invaded
Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On
December 24th and 25th they captured Wake Island and occupied Hong Kong. On January 2, 1942, Manila
fell, and on February 10th Singapore, Britain's great naval base in the East, was taken. On February 27th the
battle of the Java Sea resulted in a disastrous naval defeat to the United Nations. By the 9th of March
Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were
occupied; Bataan and Corregidor were under attack.
Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that
the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our
forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last
stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the
responsibility of our national defense had ample ground for concluding that they must face the danger of
invasion, take measures against it, and in making the choice of measures consider our internal situation,
cannot be doubted.
95
The challenged orders were defense measures for the avowed purpose of safeguarding the military area in
question, at a time of threatened air raids and invasion *95 by the Japanese forces, from the danger of
sabotage and espionage. As the curfew was made applicable to citizens residing in the area only if they were
of Japanese ancestry, our inquiry must be whether in the light of all the facts and circumstances there was
any substantial basis for the conclusion, in which Congress and the military commander united, that the
curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which
would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy
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invasion. The alternative which appellant insists must be accepted is for the military authorities to impose the
curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt
action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and
unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so
powerless and does not compel so hard a choice if those charged with the responsibility of our national
defense have reasonable ground for believing that the threat is real.
When the orders were promulgated there was a vast concentration, within Military Areas Nos. 1 and 2, of
installations and facilities for the production of military equipment, especially ships and airplanes. Important
Army and Navy bases were located in California and Washington. Approximately one-fourth of the total value
of the major aircraft contracts then let by Government procurement officers were to be performed in the State
of California. California ranked second, and Washington fifth, of all the states of the Union with respect to the
value of shipbuilding contracts to be performed.[1]
96
*96 In the critical days of March 1942, the danger to our war production by sabotage and espionage in this
area seems obvious. The German invasion of the Western European countries had given ample warning to
the world of the menace of the "fifth column." Espionage by persons in sympathy with the Japanese
Government had been found to have been particularly effective in the surprise attack on Pearl Harbor.[2] At a
time of threatened Japanese attack upon this country, the nature of our inhabitants' attachments to the
Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent
in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and
Washington at the time of the adoption of the military regulations. Of these approximately two-thirds are
citizens because born in the United States. Not only did the great majority of such persons reside within the
Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los
Angeles, all in Military Area No. 1.[3]
There is support for the view that social, economic and political conditions which have prevailed since the
close of the last century, when the Japanese began to come to this country in substantial numbers, have
intensified their solidarity and have in large measure prevented their assimilation as an integral part of the
97
white population.[4] In addition, large numbers of children of Japanese parentage *97 are sent to Japanese
language schools outside the regular hours of public schools in the locality. Some of these schools are
generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan.[5]
Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese
parentage have been sent to Japan for all or a part of their education.[6]
Congress and the Executive, including the military commander, could have attributed special significance, in
its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of
dual citizenship. Children born in the United States of Japanese alien parents, and especially those children
born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of
98
Japan.[7] No *98 official census of those whom Japan regards as having thus retained Japanese citizenship is
available, but there is ground for the belief that the number is large.[8]
The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the
country, are of mature years and occupy positions of influence in Japanese communities. The association of
influential Japanese residents with Japanese Consulates has been deemed a ready means for the
dissemination of propaganda and for the maintenance of the influence of the Japanese Government with the
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Japanese population in this country.[9]
As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific
Coast area, there has been relatively little social intercourse between them and the white population. The
restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of
Japanese extraction residing in the United States, have been sources of irritation and may well have tended
to increase their isolation, and in many instances their attachments to Japan and its institutions.
99
Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that
these conditions have encouraged the continued attachment of members of this group to Japan and Japanese
institutions. *99 These are only some of the many considerations which those charged with the responsibility
for the national defense could take into account in determining the nature and extent of the danger of
espionage and sabotage, in the event of invasion or air raid attack. The extent of that danger could be
definitely known only after the event and after it was too late to meet it. Whatever views we may entertain
regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the
judgment of the military authorities and of Congress that there were disloyal members of that population,
whose number and strength could not be precisely and quickly ascertained. We cannot say that the
war-making branches of the Government did not have ground for believing that in a critical hour such persons
could not readily be isolated and separately dealt with, and constituted a menace to the national defense and
safety, which demanded that prompt and adequate measures be taken to guard against it.
Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is
an obvious protection against the perpetration of sabotage most readily committed during the hours of
darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has
restricted the citizen's liberty. Like every military control of the population of a dangerous zone in war time, it
necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines
during a fire, or the confinement of people to their houses during an air raid alarm — neither of which could be
thought to be an infringement of constitutional right. Like them, the validity of the restraints of the curfew order
depends on all the conditions which obtain at the time the curfew is imposed and which support the order
imposing it.
100
*100 But appellant insists that the exercise of the power is inappropriate and unconstitutional because it
discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment
contains no equal protection clause and it restrains only such discriminatory legislation by Congress as
amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337-38, and cases cited.
Congress may hit at a particular danger where it is seen, without providing for others which are not so evident
or so urgent. Keokee Coke Co. v. Taylor, 234 U.S. 224, 227.
101
Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people
whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or
discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v.
Hopkins, 118 U.S. 356; Yu Cong Eng v. Trinidad, 271 U.S. 500; Hill v. Texas, 316 U.S. 400. We may assume
that these considerations would be controlling here were it not for the fact that the danger of espionage and
sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every
relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in
most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils
of war, Congress and the Executive are wholly precluded from taking into account those facts and
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circumstances which are relevant to measures for our national defense and for the successful prosecution of
the war, and which may in fact place citizens of one ancestry in a different category from others. "We must
never forget, that it is a constitution we are expounding," "a constitution intended to endure for ages to come,
and, consequently, to be adapted to the various crises of human *101 affairs." McCulloch v. Maryland, 4
Wheat. 316, 407, 415. The adoption by Government, in the crisis of war and of threatened invasion, of
measures for the public safety, based upon the recognition of facts and circumstances which indicate that a
group of one national extraction may menace that safety more than others, is not wholly beyond the limits of
the Constitution and is not to be condemned merely because in other and in most circumstances racial
distinctions are irrelevant. Cf. Clarke v. Deckebach, 274 U.S. 392, and cases cited.
Here the aim of Congress and the Executive was the protection against sabotage of war materials and
utilities in areas thought to be in danger of Japanase invasion and air attack. We have stated in detail facts
and circumstances with respect to the American citizens of Japanese ancestry residing on the Pacific Coast
which support the judgment of the war-waging branches of the Government that some restrictive measure was
urgent. We cannot say that these facts and circumstances, considered in the particular war setting, could
afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The
fact alone that attack on our shores was threatened by Japan rather than another enemy power set these
citizens apart from others who have no particular associations with Japan.
Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances
preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for
the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by experience,
102
that in time of war residents having ethnic affiliations with an invading enemy may be a greater source of
danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting
with its *102 authorization, have constitutional power to appraise the danger in the light of facts of public
notoriety. We need not now attempt to define the ultimate boundaries of the war power. We decide only the
issue as we have defined it — we decide only that the curfew order as applied, and at the time it was applied,
was within the boundaries of the war power. In this case it is enough that circumstances within the knowledge
of those charged with the responsibility for maintaining the national defense afforded a rational basis for the
decision which they made. Whether we would have made it is irrelevant.
What we have said also disposes of the contention that the curfew order involved an unlawful delegation by
Congress of its legislative power. The mandate of the Constitution that all legislative power granted "shall be
vested in Congress" has never been thought, even in the administration of civil affairs, to preclude Congress
from resorting to the aid of executive or administrative officers in determining by findings whether the facts
are such as to call for the application of previously adopted legislative standards or definitions of
Congressional policy.
The purpose of Executive Order No. 9066, and the standard which the President approved for the orders
authorized to be promulgated by the military commander — as disclosed by the preamble of the Executive
Order — was the protection of our war resources against espionage and sabotage. Public Proclamations
Nos. 1 and 2 by General DeWitt, contain findings that the military areas created and the measures to be
prescribed for them were required to establish safeguards against espionage and sabotage. Both the
Executive Order and the Proclamations were before Congress when the Act of March 21, 1942, was under
103
consideration. To the extent that the Executive Order authorized orders to be promulgated by the military
commander to accomplish the declared purpose of the *103 Order, and to the extent that the findings in the
Proclamations establish that such was their purpose, both have been approved by Congress.
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It is true that the Act does not in terms establish a particular standard to which orders of the military
commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive
Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a
single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the
Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by
the Executive Order — the necessity of protecting military resources in the designated areas against
espionage and sabotage. And by the Act, Congress gave its approval to that standard. We have no need to
consider now the validity of action if taken by the military commander without conforming to this standard
approved by Congress, or the validity of orders made without the support of findings showing that they do so
conform. Here the findings of danger from espionage and sabotage, and of the necessity of the curfew order
to protect against them, have been duly made. General DeWitt's Public Proclamation No. 3, which established
the curfew, merely prescribed regulations of the type and in the manner which Public Proclamations Nos. 1
and 2 had announced would be prescribed at a future date, and was thus founded on the findings of
Proclamations Nos. 1 and 2.
The military commander's appraisal of facts in the light of the authorized standard, and the inferences which
104
he drew from those facts, involved the exercise of his informed judgment. But as we have seen, those facts,
and the inferences which could be rationally drawn from them, support the judgment of the military commander,
that *104 the danger of espionage and sabotage to our military resources was imminent, and that the curfew
order was an appropriate measure to meet it.
Where, as in the present case, the standard set up for the guidance of the military commander, and the action
taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the
public are assured that the orders, in the judgment of the commander, conform to the standards approved by
the President and Congress, there is no failure in the performance of the legislative function. Opp Cotton Mills
v. Administrator, 312 U.S. 126, 142-46, and cases cited. The essentials of that function are the determination
by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution.
The very necessities which attend the conduct of military operations in time of war in this instance as in many
others preclude Congress from holding committee meetings to determine whether there is danger, before it
enacts legislation to combat the danger.
The Constitution as a continuously operating charter of government does not demand the impossible or the
impractical. The essentials of the legislative function are preserved when Congress authorizes a statutory
command to become operative, upon ascertainment of a basic conclusion of fact by a designated
representative of the Government. Cf. The Aurora, 7 Cranch 382; United States v. Chemical Foundation, 272
U.S. 1, 12. The present statute, which authorized curfew orders to be made pursuant to Executive Order No.
9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. Under
the Executive Order the basic facts, determined by the military commander in the light of knowledge then
available, were whether that danger existed and whether a curfew order was an appropriate means of
105
minimizing the danger. Since his findings to *105 that effect were, as we have said, not without adequate
support, the legislative function was performed and the sanction of the statute attached to violations of the
curfew order. It is unnecessary to consider whether or to what extent such findings would support orders
differing from the curfew order.
The conviction under the second count is without constitutional infirmity. Hence we have no occasion to
review the conviction on the first count since, as already stated, the sentences on the two counts are to run
concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is
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unnecessary to consider the Government's argument that compliance with the order to report at the Civilian
Control Station did not necessarily entail confinement in a relocation center.
Affirmed.
MR. JUSTICE DOUGLAS, concurring:
While I concur in the result and agree substantially with the opinion of the Court, I wish to add a few words to
indicate what for me is the narrow ground of decision.
After the disastrous bombing of Pearl Harbor the military had a grave problem on its hands. The threat of
Japanese invasion of the west coast was not fanciful but real. The presence of many thousands of aliens and
citizens of Japanese ancestry in or near to the key points along that coast line aroused special concern in
those charged with the defense of the country. They believed that not only among aliens but also among
citizens of Japanese ancestry there were those who would give aid and comfort to the Japanese invader and
106
act as a fifth column before and during an invasion.[1] If the military *106 were right in their belief that among
citizens of Japanese ancestry there was an actual or incipient fifth column, we were indeed faced with the
imminent threat of a dire emergency. We must credit the military with as much good faith in that belief as we
would any other public official acting pursuant to his duties. We cannot possibly know all the facts which lay
behind that decision. Some of them may have been as intangible and as imponderable as the factors which
influence personal or business decisions in daily life. The point is that we cannot sit in judgment on the military
requirements of that hour. Where the orders under the present Act have some relation to "protection against
espionage and against sabotage," our task is at an end.
Much of the argument assumes that as a matter of policy it might have been wiser for the military to have
dealt with these people on an individual basis and through the process of investigation and hearings
separated those who were loyal from those who were not. But the wisdom or expediency of the decision
which was made is not for us to review. Nor are we warranted where national survival is at stake in insisting
that those orders should not have been applied to anyone without some evidence of his disloyalty. The orders
107
as applied to the petitioner are not to be tested by the substantial evidence rule. Peacetime procedures do
not necessarily fit wartime needs. It is said that if citizens of Japanese ancestry were generally disloyal,
treatment on a group basis might be justified. But there is no difference in power when the number *107 of
those who are finally shown to be disloyal or suspect is reduced to a small per cent. The sorting process
might indeed be as time-consuming whether those who were disloyal or suspect constituted nine or
ninety-nine per cent. And the pinch of the order on the loyal citizens would be as great in any case. But where
the peril is great and the time is short, temporary treatment on a group basis may be the only practicable
expedient whatever the ultimate percentage of those who are detained for cause. Nor should the military be
required to wait until espionage or sabotage becomes effective before it moves.
It is true that we might now say that there was ample time to handle the problem on the individual rather than
the group basis. But military decisions must be made without the benefit of hindsight. The orders must be
judged as of the date when the decision to issue them was made. To say that the military in such cases
should take the time to weed out the loyal from the others would be to assume that the nation could afford to
have them take the time to do it. But as the opinion of the Court makes clear, speed and dispatch may be of
the essence. Certainly we cannot say that those charged with the defense of the nation should have
procrastinated until investigations and hearings were completed. At that time further delay might indeed have
seemed to be wholly incompatible with military responsibilities.
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Since we cannot override the military judgment which lay behind these orders, it seems to me necessary to
concede that the army had the power to deal temporarily with these people on a group basis. Petitioner
therefore was not justified in disobeying the orders.
But I think it important to emphasize that we are dealing here with a problem of loyalty not assimilation. Loyalty
108
is a matter of mind and of heart not of race. That indeed is the history of America. Moreover, guilt is personal
*108 under our constitutional system. Detention for reasonable cause is one thing. Detention on account of
ancestry is another.
In this case the petitioner tendered by a plea in abatement the question of his loyalty to the United States. I
think that plea was properly stricken; military measures of defense might be paralyzed if it were necessary to
try out that issue preliminarily. But a denial of that opportunity in this case does not necessarily mean that
petitioner could not have had a hearing on that issue in some appropriate proceeding. Obedience to the
military orders is one thing. Whether an individual member of a group must be afforded at some stage an
opportunity to show that, being loyal, he should be reclassified is a wholly different question.
There are other instances in the law where one must obey an order before he can attack as erroneous the
classification in which he has been placed. Thus it is commonly held that one who is a conscientious objector
has no privilege to defy the Selective Service Act and to refuse or fail to be inducted. He must submit to the
law. But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the
109
legality of his classification by the draft board.[2] Whether in the present situation that remedy would be
available is one *109 of the large and important issues reserved by the present decision. It has been
suggested that an administrative procedure has been established to relieve against unwarranted applications
of these orders. Whether in that event the administrative remedy would be the only one available or would
have to be first exhausted is also reserved. The scope of any relief which might be afforded — whether the
liberties of an applicant could be restored only outside the areas in question — is likewise a distinct issue. But
if it were plain that no machinery was available whereby the individual could demonstrate his loyalty as a
citizen in order to be reclassified, questions of a more serious character would be presented. The United
States, however, takes no such position. We need go no further here than to deny the individual the right to
defy the law. It is sufficient to say that he cannot test in that way the validity of the orders as applied to him.
MR. JUSTICE MURPHY, concurring:
It is not to be doubted that the action taken by the military commander in pursuance of the authority conferred
upon him was taken in complete good faith and in the firm conviction that it was required by considerations of
public safety and military security. Neither is it doubted that the Congress and the Executive working together
may generally employ such measures as are necessary and appropriate to provide for the common defense
and to wage war "with all the force necessary to make it effective." United States v. Macintosh, 283 U.S. 605,
622. This includes authority to exercise measures of control over persons and property which would not in all
cases be permissible in normal times.[1]
110
*110 It does not follow, however, that the broad guaranties of the Bill of Rights and other provisions of the
Constitution protecting essential liberties are suspended by the mere existence of a state of war. It has been
frequently stated and recognized by this Court that the war power, like the other great substantive powers of
government, is subject to the limitations of the Constitution. See Ex parte Milligan, 4 Wall. 2; Hamilton v.
Kentucky Distilleries Co., 251 U.S. 146, 156; Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426.
We give great deference to the judgment of the Congress and of the military authorities as to what is
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necessary in the effective prosecution of the war, but we can never forget that there are constitutional
boundaries which it is our duty to uphold. It would not be supposed, for instance, that public elections could be
suspended or that the prerogatives of the courts could be set aside, or that persons not charged with
offenses against the law of war (see Ex parte Quirin, 317 U.S. 1) could be deprived of due process of law and
the benefits of trial by jury, in the absence of a valid declaration of martial law. Cf. Ex parte Milligan, supra.
Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at
variance with the principles for which we are now waging war. We cannot close our eyes to the fact that for
centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of
anguish because of inequality of treatment for different groups. There was one law for one and a different law
111
for another. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just
*111 and equal laws. To say that any group cannot be assimilated is to admit that the great American
experiment has failed, that our way of life has failed when confronted with the normal attachment of certain
groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest
settlements in our midst, which have isolated themselves for religious and cultural reasons.
Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal
liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order
here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of
their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to
the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is
the creation in this country of two classes of citizens for the purposes of a critical and perilous hour — to
sanction discrimination between groups of United States citizens on the basis of ancestry. In my opinion this
goes to the very brink of constitutional power.
Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a
particular racial extraction would not be regarded as in accord with the requirement of due process of law
contained in the Fifth Amendment. We have consistently held that attempts to apply regulatory action to
particular groups solely on the basis of racial distinction or classification is not in accordance with due
process of law as prescribed by the Fifth and Fourteenth Amendments. Cf. Yick Wo v. Hopkins, 118 U.S. 356,
112
369; Yu Cong Eng v. Trinidad, 271 U.S. 500, 524-28. See also Boyd v. Frankfort, 117 Ky. 199, 77 S.W. 669;
Opinion of the Justices, 207 Mass. *112 601, 94 N.E. 558. It is true that the Fifth Amendment, unlike the
Fourteenth, contains no guarantee of equal protection of the laws. Cf. Currin v. Wallace, 306 U.S. 1, 14. It is
also true that even the guaranty of equal protection of the laws allows a measure of reasonable classification.
It by no means follows, however, that there may not be discrimination of such an injurious character in the
application of laws as to amount to a denial of due process of law as that term is used in the Fifth
Amendment.[2] I think that point is dangerously approached when we have one law for the majority of our
citizens and another for those of a particular racial heritage.
In view, however, of the critical military situation which prevailed on the Pacific Coast area in the spring of
1942, and the urgent necessity of taking prompt and effective action to secure defense installations and
military operations against the risk of sabotage and espionage, the military authorities should not be required
to conform to standards of regulatory action appropriate to normal times. Because of the damage wrought by
the Japanese at Pearl Harbor and the availability of new weapons and new techniques with greater capacity
for speed and deception in offensive operations, the immediate possibility of an attempt at invasion
somewhere along the Pacific Coast had to be reckoned with. However desirable such a procedure might have
113
been, the military authorities could have reasonably concluded at *113 the time that determinations as to the
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loyalty and dependability of individual members of the large and widely scattered group of persons of
Japanese extraction on the West Coast could not be made without delay that might have had tragic
consequences. Modern war does not always wait for the observance of procedural requirements that are
considered essential and appropriate under normal conditions. Accordingly I think that the military arm,
confronted with the peril of imminent enemy attack and acting under the authority conferred by the Congress,
made an allowable judgment at the time the curfew restriction was imposed. Whether such a restriction is
valid today is another matter.
In voting for affirmance of the judgment I do not wish to be understood as intimating that the military
authorities in time of war are subject to no restraints whatsoever, or that they are free to impose any
restrictions they may choose on the rights and liberties of individual citizens or groups of citizens in those
places which may be designated as "military areas." While this Court sits, it has the inescapable duty of
seeing that the mandates of the Constitution are obeyed. That duty exists in time of war as well as in time of
peace, and in its performance we must not forget that few indeed have been the invasions upon essential
liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by
responsible men. Cf. Mr. Justice Brandeis concurring in Whitney v. California, 274 U.S. 357, 372.
114
Nor do I mean to intimate that citizens of a particular racial group whose freedom may be curtailed within an
area threatened with attack should be generally prevented from leaving the area and going at large in other
areas that are not in danger of attack and where special precautions are not needed. Their status as citizens,
though subject to requirements of national security and *114 military necessity, should at all times be accorded
the fullest consideration and respect. When the danger is past, the restrictions imposed on them should be
promptly removed and their freedom of action fully restored.
MR. JUSTICE RUTLEDGE, concurring:
I concur in the Court's opinion, except for the suggestion, if that is intended (as to which I make no assertion),
that the courts have no power to review any action a military officer may "in his discretion" find it necessary
to take with respect to civilian citizens in military areas or zones, once it is found that an emergency has
created the conditions requiring or justifying the creation of the area or zone and the institution of some
degree of military control short of suspending habeas corpus. Given the generating conditions for exercise of
military authority and recognizing the wide latitude for particular applications that ordinarily creates, I do not
think it is necessary in this case to decide that there is no action a person in the position of General DeWitt
here may take, and which he may regard as necessary to the region's or the country's safety, which will call
judicial power into play. The officer of course must have wide discretion and room for its operation. But it does
not follow there may not be bounds beyond which he cannot go and, if he oversteps them, that the courts may
not have power to protect the civilian citizen. But in this case that question need not be faced and I merely
add my reservation without indication of opinion concerning it.
[1] State Distribution of War Supply and Facility Contracts — June 1940 through December 1941 (issued by Office of Production
Management, Bureau of Research and Statistics, January 18, 1942); Ibid. — Cumulative through February 1943 (issued by War Production
Board, Statistics Division, April 3, 1943).
[2] See "Attack upon Pearl Harbor by Japanese Armed Forces," Report of the Commission Appointed by the President, dated January 23,
1942, S. Doc. No. 159, 77th Cong., 2d Sess., pp. 12-13.
[3] Sixteenth Census of the United States, for 1940, Population, Second Series, Characteristics of the Population (Dept. of Commerce):
California, pp. 10, 61; Oregon, pp. 10, 50; Washington, pp. 10, 52. See also H.R. Rep. No. 2124, 77th Cong., 2d Sess., pp. 91-100.
[4] Federal legislation has denied to the Japanese citizenship by naturalization (R.S. § 2169; 8 U.S.C. § 703; see Ozawa v. United States,
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260 U.S. 178), and the Immigration Act of 1924 excluded them from admission into the United States. 43 Stat. 161, 8 U.S.C. § 213. State
legislation has denied to alien Japanese the privilege of owning land. 1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp.
Laws Ann. (1940), § 61-102; 11 Washington Rev. Stat. Ann. (Remington, 1933), §§ 10581-10582. It has also sought to prohibit intermarriage
of persons of Japanese race with Caucasians. Montana Rev. Codes (1935), § 5702. Persons of Japanese descent have often been unable
to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this
character have not been available. Mears, Resident Orientals on the American Pacific Coast (1927), pp. 188, 198-209, 402-03; H.R. Rep.
No. 2124, 77th Cong., 2d Sess., pp. 101-38.
[5] Hearings before the Select Committee Investigating National Defense Migration, House of Representatives, 77th Cong., 2d Sess., pp.
11702, 11393-94, 11348.
[6] H.R. Rep. No. 1911, 77th Cong., 2d Sess., p. 16.
[7] Nationality Law of Japan, Article 1 and Article 20, § 3, and Regulations (Ordinance No. 26) of November 17, 1924, — all printed in
Flournoy and Hudson, Nationality Laws (1929), pp. 382, 384-87. See also Foreign Relations of the United States, 1924, vol. 2, pp. 411-13.
[8] Statistics released in 1927 by the Consul General of Japan at San Francisco asserted that over 51,000 of the approximately 63,000
American-born persons of Japanese parentage then in the western part of the United States held Japanese citizenship. Mears, Resident
Orientals on the American Pacific Coast, pp. 107-08, 429. A census conducted under the auspices of the Japanese government in 1930
asserted that approximately 47% of American-born persons of Japanese parentage in California held dual citizenship. Strong, The SecondGeneration Japanese Problem (1934), p. 142.
[9] H.R. Rep. No. 1911, 77th Cong., 2d Sess., p. 17.
[1] Judge Fee stated in United States v. Yasui, 48 F. Supp. 40, 44-45, the companion case to the present one, "The areas and zones
outlined in the proclamations became a theatre of operations, subjected in localities to attack and all threatened during this period with a full
scale invasion. The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of
an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent,
presented a problem requiring for solution ability and devotion of the highest order."
[2] See United States v. Powell, 38 F. Supp. 183; Application of Greenberg, 39 F. Supp. 13; United States v. Baird, 39 F. Supp. 392;
Michell v. Paullin, 45 F. Supp. 687; United States v. Embrey, 46 F. Supp. 916; In re Rogers, 47 F. Supp. 265; Ex parte Stewart, 47 F. Supp.
410; United States v. Smith, 48 F. Supp. 842; Ex parte Robert, 49 F. Supp. 131; United States v. Grieme, 128 F.2d 811; Fletcher v. United
States, 129 F.2d 262; Drumheller v. Berks County Local Board No. 1, 130 F.2d 610, 612. For cases arising under the Selective Draft Act of
1917, see United States v. Kinkead, 250 F. 692; Ex parte McDonald, 253 F. 99; Ex parte Cohen, 254 F. 711; Arbitman v. Woodside, 258 F.
441; Ex parte Thieret, 268 F. 472, 476. And see 10 Geo. Wash. L. Rev. 827.
[1] Schenck v. United States, 249 U.S. 47; Debs v. United States, 249 U.S. 211; United States v. Bethlehem Steel Corp., 315 U.S. 289,
305; Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135; Dakota Central Tel. Co. v. South Dakota, 250 U.S. 163; Highland v. Russell
Car Co., 279 U.S. 253; Selective Draft Law Cases, 245 U.S. 366.
[2] For instance, if persons of an accused's race were systematically excluded from a jury in a federal court, any conviction undoubtedly
would be considered a violation of the requirement of due process of law, even though the ground commonly stated for setting aside
convictions so obtained in state courts is denial of equal protection of the laws. Cf. Glasser v. United States, 315 U.S. 60, with Smith v.
Texas, 311 U.S. 128.
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Litigators Making a Difference
John Geddes Lawrence and Tyron
Garner v. State of Texas:
Respondent’s Brief
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
No. 02-102
================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------JOHN GEDDES LAWRENCE AND TYRON GARNER,
Petitioners,
v.
STATE OF TEXAS,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
Texas Court Of Appeals
For The Fourteenth District
---------------------------------♦--------------------------------RESPONDENT’S BRIEF
---------------------------------♦--------------------------------CHARLES A. ROSENTHAL, JR.
Harris County District Attorney
WILLIAM J. DELMORE III*
SCOTT A. DURFEE
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
*Counsel of Record
Counsel for Respondent
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTIONS PRESENTED
1. Whether the petitioners’ criminal prosecutions for
the offense of engaging in homosexual conduct, as defined
by section 21.06 of the Texas Penal Code, violated the
Fourteenth Amendment guarantee of equal protection of
the law.
2. Whether the petitioners’ criminal prosecutions
under section 21.06 of the Texas Penal Code violated their
constitutional rights to liberty and privacy, as protected by
the Due Process Clause of the Fourteenth Amendment.
3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986),
should be overruled.
ii
TABLE OF CONTENTS
Page
Questions presented ...................................................
i
Table of authorities.....................................................
iv
Statement ...................................................................
1
Summary of argument................................................
4
Argument ....................................................................
5
Substantive Due Process Under The
Fourteenth Amendment ..................................
5
A. The appellate record is inadequate to
support the recognition of the limited
constitutional right asserted by the
petitioners ....................................................
5
B. The Court has adopted an historical
approach to the recognition of liberty
interests protected under the Due
Process Clause ..........................................
8
C. This nation has no deep-rooted tradition of
protecting a right to engage in sodomy ......
13
D. No tradition of protection exists at any
level of specificity of designation of an
asserted liberty interest ...........................
18
E. Principles of stare decisis counsel against
recognition of a new protected liberty
interest .........................................................
24
Equal Protection Under the Fourteenth
Amendment .....................................................
26
A. The Equal Protection Clause – standard
of review ....................................................
28
I.
II.
iii
TABLE OF CONTENTS – Continued
Page
1. Rational-basis review ..........................
28
2. Heightened review is neither sought
nor required .........................................
30
B. The petitioners have not established
their membership in the class for which
equal protection relief is sought ...............
33
C. The Texas Legislature did not purposefully
discriminate in the passage of section
21.06 ..........................................................
35
D. Section 21.06 is rationally related to a
legitimate state interest ...........................
41
1. Section 21.06 was enacted for the
purpose of avoiding litigation and
possible invalidation of the predecessor
statute ..................................................
41
2. Section 21.06 furthers the legitimate
governmental interest of promotion of
morality ...............................................
42
Summary .........................................................
49
Conclusion ..................................................................
50
III.
iv
TABLE OF AUTHORITIES
Page
Cases
Allen v. Wright, 468 U.S. 737 (1984) ................................. 34
Arizona v. Rumsey, 467 U.S. 203 (1984) ........................... 25
Atkins v. Virginia, 122 S.Ct. 2242 (2002) .................... 14, 15
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985), cert.
denied, 478 U.S. 1022 (1986) ................................... 31, 43
Baker v. Wade, 478 U.S. 1022 (1986)................................. 44
Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex. 1982) .......... 40
Barbier v. Connolly, 113 U.S. 27 (1884) ............................ 42
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ............ 42
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989),
cert. denied, 494 U.S. 1004 (1990) ................................. 31
Berman v. Parker, 348 U.S. 26 (1954) ............................... 42
Bowers v. Hardwick, 478 U.S. 186 (1986) ..................passim
Buchanan v. Batchelor, 308 F. Supp. 729 (N.D. Tex.
38, 391970), rev’d, 401 U.S. 989 (1971) ................... 38, 39
Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct.
App. 1996) ....................................................................... 20
City of Chicago v. Morales, 527 U.S. 41 (1999) ................. 12
City of Cleburne, Texas v. Cleburne Living Center,
473 U.S. 432 (1985) ............................................ 28, 29, 47
City of Dallas v. Stanglin, 490 U.S. 19 (1989) ............ 28, 42
City of Sherman v. Henry, 928 S.W.2d 464 (Tex.
1996)................................................................................ 20
Coalition for Economic Equity v. Wilson, 122 F.3d
692 (9th Cir. 1997).......................................................... 33
v
TABLE OF AUTHORITIES – Continued
Page
Collins v. Harker Heights, 503 U.S. 115 (1992) ............ 5, 24
Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.
1992)................................................................................ 20
County Court of Ulster County v. Allen, 442 U.S.
140 (1979) ......................................................................... 7
County of Sacramento v. Lewis, 523 U.S. 833 (1998)..... 12, 18
Craig v. Boren, 429 U.S. 190 (1976) .................................. 32
Cruzan v. Director, Missouri Department of Health,
497 U.S. 261 (1990) ...................................................11, 22
Dandridge v. Williams, 397 U.S. 471 (1970) ..................... 29
Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984) ........ 43
Eisenstadt v. Baird, 405 U.S. 438 (1972) ...................... 7, 38
Equality Foundation of Greater Cincinnati, Inc. v.
City of Cincinnati, 128 F.3d 289 (6th Cir. 1997),
cert. denied, 525 U.S. 943 (1998) ................................... 31
F.C.C. v. Beach Communications, Inc., 508 U.S. 307
(1993) ........................................................................ 29, 40
Fennell v. State, 32 Tex. 378 (1869)................................... 37
Frontiero v. Richardson, 411 U.S. 677 (1973) ................... 47
Ginsberg v. United States, 390 U.S. 629 (1968) ................ 42
Griswold v. Connecticut, 381 U.S. 479 (1965)...... 9, 20, 38, 39
Gryczan v. State, 942 P.2d 112 (Mont. 1997)..................... 21
Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985)........ 43
Heller v. Doe by Doe, 509 U.S. 312 (1993) ................... 29, 30
Hernandez v. New York, 500 U.S. 352 (1991).................... 36
vi
TABLE OF AUTHORITIES – Continued
Page
Holmes v. California Army National Guard, 124
F.3d 1126 (9th Cir. 1997), cert. denied, 525 U.S.
1067 (1998) ..................................................................... 31
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).......... 32
Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002) ..................... 21
Kyllo v. United States, 533 U.S. 27 (2001) ........................ 17
Lawrence v. State, 41 S.W.3d 349 (Tex. App.–Houston
[14th Dist.] 2001, pet. ref’d)....................... 2, 26, 30, 35, 47
Louis K. Liggett Co. v. Baldridge, 278 U.S. 105
(1928) .............................................................................. 42
Loving v. Virginia, 388 U.S. 1 (1967) ................................ 38
Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976), cert.
denied, 429 U.S. 977 (1977) ............................................. 7
Marcum v. McWhorter, 308 F.3d 635 (6th Cir. 2002)..... 16, 20
McDonald v. Board of Election Commissioners of
Chicago, 394 U.S. 802 (1969) ......................................... 40
Meyer v. Nebraska, 262 U.S. 390 (1923)............................ 21
Michael H. v. Gerald D., 491 U.S. 110 (1989) ......... 9, 18, 42
Miller v. Albright, 523 U.S. 420 (1998) ............................. 32
Missouri v. Walsh, 713 S.W.2d 508 (Mo. 1986) ................. 15
Moore v. City of East Cleveland, 431 U.S. 494
(1976) ................................................................................ 9
New State Ice Co. v. Liebmann, 285 U.S. 262 (1932)........ 25
Nordlinger v. Hahn, 505 U.S. 1 (1992).............................. 28
North Carolina v. Rice, 404 U.S. 244 (1971) ....................... 7
vii
TABLE OF AUTHORITIES – Continued
Page
Oliverson v. West Valley City, 875 F. Supp. 1465 (D.
Utah 1995) ...................................................................... 20
Osborne v. Ohio, 495 U.S. 103 (1990) ................................ 17
Palko v. Connecticut, 302 U.S. 319 (1937)................4, 10, 11
Palmore v. Sidoti, 466 U.S. 429 (1984).............................. 47
Penry v. Lynaugh, 492 U.S. 302 (1989) ............................. 16
Personnel Administrator of Massachusetts v.
Feeney, 442 U.S. 256 (1979) ........................................... 35
Pierce v. Society of Sisters, 268 U.S. 510 (1925)................ 21
Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833 (1992) .................................................... 9, 10
Poe v. Ullman, 367 U.S. 497 (1961)............................. 22, 24
Powell v. State, 510 S.E.2d 18 (Ga. 1998) ......................... 21
Prindle v. State, 21 S.W. 36 (Tex. Crim. App. 1893) ......... 37
Pruett v. State, 463 S.W.2d 191 (Tex. Crim. App.
1971).......................................................................... 38, 39
Reno v. Flores, 507 U.S. 292 (1993) ............................... 5, 10
Rich v. Secretary of the Army, 735 F.2d 1220 (10th
Cir. 1984)......................................................................... 31
Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996),
cert. denied sub nom. Richenberg v. Cohen, 522
U.S. 807 (1997) ............................................................... 31
Roberts v. United States Jaycees, 468 U.S. 609
(1984) .............................................................................. 16
Rochin v. California, 342 U.S. 165 (1952)......................... 22
Roe v. Wade, 410 U.S. 113 (1973)....................................... 38
viii
TABLE OF AUTHORITIES – Continued
Page
Romer v. Evans, 517 U.S. 620 (1996) .........................passim
Schlesinger v. Ballard, 419 U.S. 498 (1975) ..................... 32
Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942) ....................................................................... 21
Snyder v. Massachusetts, 291 U.S. 97 (1934).................... 10
Stanley v. Georgia, 394 U.S. 557 (1969) ............................ 17
State v. Baxley, 656 So.2d 973 (La. 1995).......................... 36
State v. Smith, 766 So.2d 501 (La. 2000) .......................... 15
State v. Walsh, 713 S.W.2d 508 (Mo. 1986) ....................... 43
Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ................... 31
Thomasson v. Perry, 80 F.3d 915 (4th Cir.), cert.
denied, 519 U.S. 948 (1996) ........................................... 31
Trop v. Dulles, 356 U.S. 86 (1958) ..................................... 16
Troxel v. Granville, 530 U.S. 57 (2000).......................... 8, 12
United States Department of Agriculture v. Moreno,
413 U.S. 528 (1973) ........................................................ 47
United States v. Hays, 515 U.S. 737 (1995) ................ 33, 34
United States v. Lemons, 697 F.2d 832 (9th Cir.
1983).................................................................................. 7
United States v. Salerno, 481 U.S. 739 (1987) .................. 10
United States v. Virginia, 518 U.S. 515 (1996) ................. 32
Vacco v. Quill, 521 U.S. 793 (1997).................................... 28
Washington v. Glucksberg, 521 U.S. 702 (1997) ........passim
Woodward v. United States, 871 F.2d 1068 (Fed.
Cir. 1989), cert. denied, 494 U.S. 1003 (1990) ............... 31
Younger v. Harris, 401 U.S. 37 (1971) ............................... 39
ix
TABLE OF AUTHORITIES – Continued
Page
STATUTES
Act of February 9, 1854, 5th Leg., R.S., ch. XLIX,
1854 Tex. Gen. Laws 1502 ............................................. 37
Act of February 11, 1860, 8th Leg., R.S., ch. 74,
1860 Tex. Gen. Laws 95 ................................................. 37
Act of April 5, 1943, 48th Leg., R.S., ch. 112, § 1,
1943 Tex. Gen. Laws 194 ............................................... 38
Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1993
Tex. Gen. Laws 3589 ...................................................... 40
TEX. CODE CRIM. PROC. art. 4.03 (Vernon Supp.
2003).................................................................................. 2
TEX. CODE CRIM. PROC. art. 45.042 (Vernon Supp.
2003).................................................................................. 1
TEX. PENAL CODE § 12.23 (Vernon 1994) ............................. 1
TEX. PENAL CODE § 21.01 (Vernon 1994) ............................. 1
TEX. PENAL CODE § 21.06 (Vernon 1994) ....................passim
TEX. PENAL CODE § 43.02 (Vernon Supp. 2003) .................. 6
OTHER AUTHORITIES
Baker, Lynn A., The Missing Pages of the Majority
Opinion in Romer v. Evans, 68 U. Colo. L. Rev.
387 (1997) ....................................................................... 46
Editors of the Harvard Law Review, Sexual
Orientation and the Law (Harvard University
Press 1990)...................................................................... 35
Eskridge, William N. Jr., Gaylaw: Challenging the
Apartheid of the Closet 229 (1999)..................... 13, 19, 46
x
TABLE OF AUTHORITIES – Continued
Page
Friedman, Lawrence M., Crime and Punishment in
American History 13 (1993) ........................................... 20
Green, Richard, Griswold’s Legacy: Fornication and
Adultery as Crimes, 16 Ohio N.U.L. Rev. (1989)..... 19, 20
Grey, Thomas C., Bowers v. Hardwick Diminished,
68 U. Colo. L. Rev. 373 (1997)........................................ 46
McConnell, Michael W., The Right to Die and the
Jurisprudence of Tradition, 1997 Utah L. Rev.
665 (1997) ........................................................................11
McConnell, Michael, The Role of Democratic
Politics in Transforming Moral Convictions into
Law, 98 Yale L. Rev. 1501 (1989) ................................... 48
Stratton, Tracy Shallettor, No More Messing
Around: Substantive Due Process Challenges to
State Laws Prohibiting Fornication, 73 Wash. L.
Rev. 767 (1998)................................................................ 19
CONSTITUTIONAL PROVISIONS
Article I, § 3, Texas Constitution ......................................... 3
Article I, § 3a, Texas Constitution ....................................... 2
First Amendment, United States Constitution ...... 7, 17, 32
Fourth Amendment, United States Constitution ............. 17
Eighth Amendment, United States Constitution .... 14, 15, 25
Ninth Amendment, United States Constitution............... 43
Fourteenth Amendment, United States
Constitution .............................................................passim
1
STATEMENT
A citizen informed Harris County sheriff ’s deputies
that an armed man was “going crazy” in the apartment of
petitioner Lawrence. Pet. App. 129a. The investigating
officers entered the apartment and observed the petitioners engaged in anal sexual intercourse. Id. They were then
charged by complaint in a Harris County justice court with
the commission of the Class C misdemeanor offense of
engaging in homosexual conduct, an offense defined by
TEX. PENAL CODE § 21.06(a) (Vernon 1994), as follows: “A
person commits an offense if he engages in deviate sexual
1
intercourse with another individual of the same sex.” A
Class C misdemeanor is punishable only by a fine not to
exceed five hundred dollars. TEX. PENAL CODE § 12.23
(Vernon 1994).
After the petitioners were convicted and fined in the
2
justice court, they gave notice of appeal and the proceedings were transferred to Harris County Criminal Court at
3
Law No. 10. The petitioners moved to quash the complaints on various constitutional grounds. Pet. App. 117a,
130a. In support of those motions, the petitioners offered
into evidence only the complaints themselves and the
supporting “probable cause affidavits” filed by a sheriff ’s
deputy in the justice court. See Pet. App. 129a, 141a. The
two affidavits contained identical descriptions of the
events leading to the filing of the complaints:
1
The term “deviate sexual intercourse” is defined in the Texas
Penal Code as “any contact between any part of the genitals of one
person and the mouth of or anus of another person,” or “the penetration
of the genitals or the anus of another person with an object.” TEX.
PENAL CODE § 21.01(1) (Vernon 1994).
2
The record contains no information concerning the course of
proceedings which occurred in the justice court.
3
An appeal from a judgment of conviction in a Texas justice court
results in a trial de novo in a county court. TEX. CODE CRIM. PROC. art.
45.042 (Vernon Supp. 2003).
2
Officers dispatched to 794 Normandy # 833
reference to a weapons disturbance. The reportee
advised dispatch a black male was going crazy in
the apartment and he was armed with a gun.
Officers met with the reportee who directed
officers to the upstairs apartment. Upon entering
the apartment and conducting a search for the
armed suspect, officers observed the defendant
engaged in deviate sexual conduct namely, anal
sex, with another man.
After the county court denied the petitioners’ motions
to quash the complaints, they entered pleas of nolo contendere, and the court found them guilty of engaging in
homosexual conduct. The court sentenced each petitioner,
pursuant to a plea bargain, to payment of a fine in the
amount of two hundred dollars, and the petitioners again
4
gave notice of appeal from their convictions.
A three-judge panel of the Court of Appeals for the
Fourteenth District of Texas initially held that the State’s
prosecution of the petitioners under section 21.06 violated
5
the Equal Rights Amendment of the Texas Constitution,
with one justice dissenting. The State’s motion for rehearing en banc was granted, however, and on March 15, 2001,
the en banc court of appeals rejected all of the petitioners’
constitutional challenges to the enforcement of section
21.06. See Lawrence v. State, 41 S.W.3d 349 (Tex. App.–
Houston [14th Dist.] 2001, pet. ref ’d) (Pet. App. 4a, et
seq.). The en banc opinion of the court of appeals may be
briefly summarized as follows:
4
A case which has been appealed from a Texas justice court to a
county court may be further appealed to a court of appeals if the fine
exceeds $100 or the sole issue is the constitutionality of the statute on
which the conviction is based. TEX. CODE CRIM. PROC. art. 4.03 (Vernon
Supp. 2003).
5
TEX. CONST. art. I, § 3a.
3
1. Enforcement of the statute prohibiting
homosexual conduct does not violate the Equal
Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, § 3, of the Texas Constitution, because the
statute does not implicate fundamental rights or
a suspect class, and it has a rational basis in the
Texas Legislature’s determination that homosexual sodomy is immoral. The fact that heterosexual sodomy is no longer a criminal offense under
Texas law is not constitutionally significant, because the Legislature could rationally distinguish between an act performed with a person of
the same sex and a similar act performed with a
person of different sex. Pet. App. 13a-18a.
2. Enforcement of section 21.06 does not
violate the Equal Rights Amendment of the
Texas Constitution, because the statute applies
equally to both men and women who engage in
the prohibited conduct, and it is not the product
of prejudice towards persons of either gender.
Pet. App. 20a-24a.
3. The State’s prosecution of the petitioners
for the offense of engaging in homosexual conduct did not violate any constitutional right to
privacy under the State or Federal Constitutions,
in light of the long history of the imposition of
criminal sanctions for such conduct, because it
could not be said that the State of Texas or the
United States recognized any “fundamental
right” to engage in homosexual activity. Pet. App.
25a-31a.
A petition for discretionary review was denied, without written opinion, by the Texas Court of Criminal Appeals. Pet. App. 1a.
4
SUMMARY OF ARGUMENT
1. The record is inadequate to serve as a basis for
recognition of a limited constitutional right to engage in
extramarital sexual conduct, because the absence of
information concerning the petitioners and the circumstances of their offense precludes a determination of
whether they would actually benefit from the Court’s
recognition of the limited right which they assert. The
record is also inadequate to establish that the petitioners
belong to the class for which they seek equal protection
relief.
2. The States of the Union have historically prohibited a wide variety of extramarital sexual conduct, a legal
tradition which is utterly inconsistent with any recognition, at this point in time, of a constitutionally protected
liberty interest in engaging in any form of sexual conduct
with whomever one chooses. Nothing in this Court’s
“substantive due process” jurisprudence supports recognition of a constitutional right to engage in sexual misconduct outside the venerable institution of marriage. This
Court should adhere to its previous holding on this issue
in Bowers v. Hardwick, 478 U.S. 186 (1986), and it should
reaffirm that the personal liberties protected by the Due
Process Clause of the Fourteenth Amendment from State
regulation are limited to those “so rooted in the traditions
and conscience of our people as to be ranked as fundamental.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).
3. Since enforcement of the homosexual conduct
statute does not interfere with the exercise of a fundamental right, and the statute is not based upon a suspect
classification, it must only be rationally related to a
permissible state goal in order to withstand equal protection challenge. This legislative proscription of one form of
extramarital sexual misconduct is in keeping with longstanding national tradition, and bears a rational relationship to the worthy governmental goals of implementation
of public morality and promotion of family values.
5
4. The petitioners cannot meet their burden of
establishing a discriminatory purpose to the original
enactment of a statute which is facially applicable to both
persons of exclusively homosexual orientation and persons
who regard themselves as bisexual or heterosexual. When
the statute is viewed in historical perspective, it can
reasonably be inferred that the Texas Legislature acted
with non-discriminatory intent in limiting the scope of the
predecessor sodomy statute to fit within the commonly
understood parameters of this Court’s then-emerging
privacy jurisprudence.
ARGUMENT
I.
Substantive Due Process Under The Fourteenth Amendment.
A. The appellate record is inadequate to support the recognition of the limited constitutional right asserted by the petitioners.
The appellate record does not establish that the
petitioners would actually benefit from recognition of the
particular liberty interest which they assert; therefore, it
does not provide this Court with a factual basis for recognizing that interest.
Precise identification of an asserted liberty interest is
critical to the determination of whether it falls within the
scope of the Due Process Clause of the Fourteenth
Amendment. An appellate court’s substantive due process
analysis “must begin with a careful description of the
asserted right,” because the “doctrine of judicial selfrestraint” requires a court “to exercise the utmost care
whenever [it] is asked to break new ground in this field.”
Reno v. Flores, 507 U.S. 292, 302 (1993) (quoting Collins v.
Harker Heights, 503 U.S. 115, 125 (1992)).
The petitioners initially advocate the recognition of a
broadly drawn constitutional right to choose to engage in
any “private consensual sexual intimacy with another
6
adult, including one of the same sex.” Brief of Petitioners
10. However, the petitioners later clarify that their challenge does not extend to the validity of statutes prohibiting prostitution, incest or adultery, which they describe as
implicating additional “state concerns” not present in this
case. Id. at 22 n.16. In short, the petitioners are asking the
Court to recognize a fundamental right of an adult to
engage in private, non-commercial, consensual sex with an
unrelated, unmarried adult.
The slim record reveals only that the petitioners are
adult males and that they engaged in anal intercourse in
an apartment that petitioner Lawrence identified as his
residence. It does not answer any of the following questions concerning the factual basis of their constitutional
claims:
• Whether the petitioners’ sexual conduct was non6
commercial.
• Whether the petitioners’ sexual conduct was mutu7
ally consensual.
8
• Whether the petitioners’ conduct was “private.”
6
The lack of profit motivation cannot be inferred from the lack of
prosecution for the more serious offense of prostitution, see TEX. PENAL
CODE § 43.02 (Vernon Supp. 2003), because the police could not possibly
determine whether prostitution was occurring if both participants in
the sexual conduct declined to discuss that issue.
7
While neither of the petitioners was charged with any variant of
sexual assault, prosecution for such an offense would require an
acknowledgment from at least one of the parties that the sexual activity
was non-consensual. Because there are any number of reasons why a
person might choose not to cooperate with authorities in the investigation and prosecution of a sexual offense, mutual consent cannot
necessarily be inferred from the parties’ silence.
8
While the record reflects that the sexual conduct occurred in
Lawrence’s apartment, the record does not indicate whether anyone
else was present in that apartment at the time. Lower courts have held
that any right of privacy that protects marital sex from governmental
interference is waived when an onlooker is welcomed into the marital
(Continued on following page)
7
• Whether the petitioners are related to one another.
• Whether either of the petitioners is married.
• Whether either (or both) of the petitioners is
9
exclusively homosexual.
While the petitioners possess standing to challenge
the constitutionality of a statute under which they have
actually been prosecuted and convicted, see Eisenstadt v.
Baird, 405 U.S. 438, 443-444 (1972), they should not be
permitted to argue that a protected liberty interest exists
under some specified set of circumstances without showing
that those circumstances actually exist. This Court will
not issue an opinion “advising what the law would be upon
a hypothetical state of facts,” and it will not “decide
questions that cannot affect the rights of litigants in the
case before [it].” North Carolina v. Rice, 404 U.S. 244, 246
(1971) (citations omitted). For example, in cases not
involving expressive activity protected by the First
Amendment, litigants have no standing to argue that a
statute “would be unconstitutional if applied to third
parties in hypothetical situations.” County Court of Ulster
10
County v. Allen, 442 U.S. 140, 155 (1979).
bedchamber. See Lovisi v. Slayton, 539 F.2d 349, 351-352 (4th Cir.
1976), cert. denied, 429 U.S. 977 (1977).
9
The sexual orientation of the petitioners appears to be irrelevant
to the disposition of their substantive due process argument, because
they assert a constitutional right to engage in sodomy with persons of
either gender, but it may be significant in determining whether the
petitioners are members of any specific class in addressing their
arguments premised upon the Equal Protection Clause, infra.
10
Thus, in United States v. Lemons, 697 F.2d 832, 834-835 (9th Cir.
1983), in which the defendant was convicted of engaging in homosexual
sodomy in violation of an Arkansas statute, the court of appeals held
that the defendant would not be heard to argue that the statute would
be unconstitutional if applied to persons who committed sodomy in a
private place, in light of the fact that the defendant was arrested while
engaging in an act of oral sex in a public place, i.e., the restroom of a
national park.
8
In recognizing constitutional liberty interests under
the Fourteenth Amendment, appellate courts “must use
considerable restraint, including careful adherence to the
incremental instruction given by the precise facts of
particular cases, as they seek to give further and more
precise definition to the right.” Troxel v. Granville, 530
U.S. 57, 95-96 (2000) (Kennedy, J., dissenting).
Simply put, the record in this case provides an insufficient foundation for the meaningful review of the important and complex question of whether there is a
constitutional right to engage in private, non-commercial,
consensual sex with an unrelated, unmarried adult. At
best, the record would support only the recognition of an
extremely broad right to engage in sexual conduct with
any other adult, regardless of any other circumstance
which might attend that conduct – a right so broad that
the petitioners themselves disavow any claim to it.
Because the record is inadequate to permit this Court
to scrutinize and identify the contours and limitations of
any protected liberty interest that might be recognized in
this case, the State respectfully suggests that this Court
dismiss the petition for writ of certiorari as improvidently
granted. In the alternative, the respondent asks that the
Court affirm the judgment of the Texas court of appeals on
ground that the record is inadequate to support an effort
to identify a limited constitutional right to engage in
sexual conduct.
B. The Court has adopted an historical approach to the recognition of liberty interests protected under the Due Process
Clause.
In addressing claims that a state has interfered with
an individual’s exercise of a previously unrecognized
liberty interest protected by the Fourteenth Amendment,
this Court has looked to the nation’s history and legal
traditions to determine whether the asserted interest is
9
actually so fundamental to our system of ordered liberty as
to merit constitutional protection from state regulation.
For instance, in Moore v. City of East Cleveland, 431 U.S.
494 (1976) (plurality opinion), the Court observed that,
“Appropriate limits on substantive due process come not
from drawing arbitrary lines but rather from careful
‘respect for the teaching of history [and], solid recognition
of the basic values that underlie our society’.” Id. at 503
(quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965)
(Harlan, J., concurring)). Thus the “Constitution protects
the sanctity of the family precisely because the institution
of the family is deeply rooted in this Nation’s history and
tradition.” Id.
In Bowers, 478 U.S. at 192-194, the Court rejected an
asserted fundamental right to engage in homosexual
conduct because, in light of pervasive State criminalization of such conduct throughout the nation’s history, it
could not seriously be asserted that a right to engage in
homosexual sodomy was “deeply rooted in this Nation’s
history and tradition.” Three years later, in Michael H. v.
Gerald D., 491 U.S. 110 (1989) (plurality opinion), the
Court noted that in its attempts to “limit and guide interpretation of the [Due Process] Clause,” it has “insisted not
merely that the interest denominated as a ‘liberty’ be
‘fundamental’ (a concept that in isolation is hard to objectify), but also that it be an interest traditionally protected
by our society.” Id. at 122-123.
Two of the opinions issued in Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833 (1992), expressed
doubt or disagreement that the Due Process Clause
protects only those practices, “defined at the most specific
level,” which were protected by law at the time of ratifica11
tion of the Fourteenth Amendment. Emphasis upon the
11
See Casey, 505 U.S. at 847 (joint opinion of O’Connor, J.,
Kennedy, J., and Souter, J.); id. at 923 (Blackmun, J., concurring).
10
nation’s legal traditions appeared only in the dissenting
12
opinions. However, less than a year later, the Court’s
opinion in Reno v. Flores, 507 U.S. 292 (1993), unambiguously stated that the “mere novelty” of a claimed constitutional liberty interest was “reason enough to doubt that
‘substantive due process’ sustains it,” because it could not
be considered “so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” Id. at 303
(quoting United States v. Salerno, 481 U.S. 739, 751
(1987), and Snyder v. Massachusetts, 291 U.S. 97, 105
(1934)).
This issue of the importance of national legal tradition
in substantive due process jurisprudence was resolved in
Washington v. Glucksberg, 521 U.S. 702 (1997), in which
the Court emphasized the necessity of “examining our
Nation’s history, legal traditions, and practices” in order to
determine whether a claimed liberty interest was, “objectively, ‘deeply rooted in this Nation’s history and tradition’ ” and “implicit in the concept of ordered liberty,” and,
therefore, merited protection under the Fourteenth
Amendment:
Our established method of substantive-dueprocess analysis has two primary features: First,
we have regularly observed that the Due Process
Clause specially protects those fundamental
rights and liberties which are, objectively,
“deeply rooted in this Nation’s history and tradition,” [Moore v. City of East Cleveland], at 503
(plurality opinion); Snyder v. Massachusetts, 291
U.S. 97, 105 (1934) (“so rooted in the traditions
and conscience of our people as to be ranked as
fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v.
12
See Casey, 505 U.S. at 952-953 (Rehnquist, C.J., dissenting); id.
at 980 (Scalia, J., dissenting).
11
Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process
cases a “careful description” of the asserted fundamental liberty interest. Flores, supra, at 302;
Collins [v. Harker Heights, 503 U.S. 115 (1992)]
at 125; Cruzan [v. Director, Missouri Department
of Health, 497 U.S. 261 (1990)] at 277-278. Our
Nation’s history, legal traditions, and practices
thus provide the crucial “guideposts for responsible decisionmaking,” Collins, supra, at 125, that
direct and restrain our exposition of the Due
Process Clause.
521 U.S. at 720-721.
The Court declined to recognize the constitutional
liberty interest proposed in Glucksberg – a right to assisted suicide – because its recognition would have required the Court to “reverse centuries of legal doctrine and
practice” and to elevate to the status of a protected liberty
interest a practice that was traditionally prohibited by
state law. Id. at 723, 728. In addition to the opinion of the
Court, Justice Stevens in a concurring opinion agreed that
“[h]istory and tradition provide ample support for refusing
to recognize an open-ended constitutional right to commit
13
suicide.” Id. at 740 (Stevens, J., concurring).
Since Glucksberg was decided, the Court has had little
opportunity to consider the recognition of previously
unacknowledged liberty interests under the Due Process
13
The “traditionalistic approach” adopted by the Court in Glucksberg has been described as “wise, workable, and firmly grounded in
principles of American constitutionalism,” in that it “provides a check
against particular states or local jurisdictions whose practices contradict what most Americans would deem to be fundamental rights, but
does so without licensing courts to second-guess democratic judgments
on the basis of their own ideological or philosophical preferences.”
Michael W. McConnell, The Right to Die and the Jurisprudence of
Tradition, 1997 Utah L. Rev. 665, 681 (1997).
12
14
Clause. In County of Sacramento v. Lewis, 523 U.S. 833
(1998), the Court held that a determination of whether
executive action violated an individual’s right to substantive due process did not require the same historical and
traditional analysis utilized in reviewing legislative action.
A concurring justice suggested that “history and tradition
are the starting point, but not in all cases the ending point
of the substantive due process inquiry,” leaving room for
an “objective assessment of the necessities of law enforcement”; but that opinion did not suggest that Glucksberg
was incorrect in its emphasis upon American legal tradition in determining the existence of a substantive due
process right in the context of review of a legislative
enactment. Id. at 857-858 (Kennedy, J., concurring). A
subsequent statement in the same concurring opinion that
“objective considerations, including history and precedent,
are the controlling principle, regardless of whether the
State’s action is legislative or executive in character,” id.
at 858 (Kennedy, J., concurring), indicated no disagreement with the basic principle expressed in Glucksberg:
that recognition of protected liberty interests under the
Fourteenth Amendment must be based upon objective
historical evidence that a particular practice is a cherished
American tradition, “lest the liberty protected by the Due
Process Clause be subtly transformed into the policy
preferences of the Members of [the] Court.” Glucksberg,
521 U.S. at 720.
14
The Court’s opinions in City of Chicago v. Morales, 527 U.S. 41
(1999), and Troxel v. Granville, 530 U.S. 57 (2000), both included
acknowledgement of the existence of substantive rights under the Due
Process Clause, but in each of those cases the particular liberty interest
in question had long been recognized by the Court: the freedom to loiter
in a public place, see Morales, 527 U.S. at 53-54; and parents’ liberty
interest in the care, custody and control of their own children, see
Troxel, 530 U.S. at 65-66.
13
C. This nation has no deep-rooted tradition
of protecting a right to engage in sodomy.
Turning to the question of whether a right to engage
in sodomy is “so rooted in the traditions and conscience of
our people as to be ranked as fundamental,” the Court’s
previous resolution of that issue in Bowers v. Hardwick is
unassailable. As noted in Bowers, sodomy was a serious
15
criminal offense at common law; it was forbidden by the
laws of the original thirteen states at the time of the
ratification of the Bill of Rights; and it was punishable as
a crime in all but five of the thirty-seven states in existence at the time of the ratification of the Fourteenth
Amendment. Bowers, 478 U.S. at 192-193.
As further noted in Bowers, sodomy remained punishable as a crime in every state of the Union prior to the
year 1961, id. at 193, when Illinois became the first state
to adopt the American Law Institute’s Model Penal Code
approach to decriminalization of some sexual offenses. Id.
at 193 n.7.
Our nation’s history has not been rewritten in the
seventeen years since Bowers was decided, and that history
contradicts any assertion that a right to engage in homosexual anal intercourse has been a valued and protected right of
American citizens. The fact that the states have traditionally
prohibited the act as a crime is utterly inconsistent with any
claim that our legal tradition has treated the choice to
engage in that act as a “fundamental” right.
It is true that some change has occurred since Bowers
was decided: three more states and the District of Columbia, in appropriate exercise of the democratic process, have
repealed or limited the scope of their statutes prohibiting
sodomy in general or homosexual sodomy in particular;
15
See also William N. Eskridge, Jr., Gaylaw: Challenging the
Apartheid of the Closet 157 (1999).
14
and a small number of state appellate courts have found
that such statutes violate a state constitutional right to
privacy. See Brief of Petitioners 23 n.17. The State of Texas
is now one of thirteen states in which consensual homosexual sodomy remains a criminal offense. Id. at 27 n.21.
The fact that several states have ceased treating sodomy
as a criminal offense, however, is no evidence of a national
tradition of espousing, honoring or safeguarding a right to
engage in deviate sexual intercourse.
The petitioners concede that this Court requires
“objective guideposts,” such as “history and precedent,” in
the process of identification of liberty interests protected
by the Fourteenth Amendment. They point to the gradual
trend towards decriminalization of consensual sexual
behavior among adults as the necessary objective evidence
of a fundamental right firmly rooted in the traditions and
conscience of American citizens. See Brief of Petitioners
19-25. Four decades of gradual but incomplete decriminalization does not erase a history of one hundred and fifty
years of universal reprobation. A recent trend towards
uneasy toleration – even a trend involving a majority of
the fifty states – cannot establish a tradition “deeply
rooted” in our national history and tradition. The petitioners mistake new growth for deep roots.
The petitioners argue that the “consistency of the
direction of change” indicates a national consensus sufficient to satisfy the need for objective indicia in identifying
a constitutionally protected liberty interest, utilizing a key
phrase from the Court’s recent decision in Atkins v. Virginia, 122 S.Ct. 2242, 2249 (2002), in which the Court
found that the execution of mentally retarded criminal
defendants violated the Eighth Amendment.
The petitioners’ argument suffers from a logical flaw
in that, prior to 1961, every State treated sodomy as a
criminal offense, so only one direction of change is possible. Compare Atkins, 122 S.Ct. at 2263 (Scalia, J., dissenting). A State’s affirmative choice to maintain the status
quo demonstrates the absence of consensus. Several states
15
have made such a choice, in that their appellate courts
have upheld the constitutionality of statutes prohibiting
the commission of sodomy or homosexual conduct. For
instance, the Louisiana Supreme Court held in State v.
Smith, 766 So.2d 501, 508-510 (La. 2000), that the constitutional right to privacy expressly recognized by that
state’s constitution did not extend to the commission of
oral or anal sex in private, observing that there “has never
been any doubt that the legislature, in the exercise of its
police power, has the authority to criminalize the commission of acts which, without regard to the infliction of any
16
other injury, are considered immoral.” Accord Missouri v.
Walsh, 713 S.W.2d 508 (Mo. 1986) (holding that a prosecution under the Missouri homosexual conduct statute did
not violate any constitutional right to privacy under the
state or federal constitution). Should just a few more
states join Texas, Louisiana and Missouri in upholding the
state’s power to punish acts of sodomy, one could argue
that the prevailing trend was actually the rejection of a
constitutional privacy right extending to consensual
sodomy.
In any event, currently evolving standards are an
unstable basis for recognition of fundamental rights
protected by the Fourteenth Amendment. The Eighth
Amendment has long been construed to require consideration of “evolving standards of decency that mark the
16
The Louisiana court also held that the separation of powers
provision of its state constitution precluded the Court from usurping
the legislative function of determining “the public policy of Louisiana on
the practice of oral and anal sex”; and it pungently observed that the
“only perceptible unconstitutionality in this case is that which would be
evident if this court would . . . elevate [its] own personal notions of
individual liberty over the collective wisdom of the voters’ elected
representatives’ belief ” that the proscription of “oral and anal sex,
consensual or otherwise, is in furtherance of the moral welfare of the
public mind.” Smith, 766 So.2d at 510.
16
progress of a maturing society,” Trop v. Dulles, 356 U.S.
86, 101 (1958), permitting reliance upon “contemporary
values” as evidenced by recent legislative enactments. See
Penry v. Lynaugh, 492 U.S. 302, 331 (1989). In contrast,
none of this Court’s precedents so much as suggests that
recent legislative activity should be accepted as proof of
“deeply rooted” fundamental rights, and the Court’s
decisions exploring the possible existence of unrecognized
liberty interests under the Fourteenth Amendment have
never taken into account rapidly “evolving standards.” The
approach advocated by the petitioners would require this
Court to serve as a micro-managing super-legislature,
continually assessing current legislative trends to determine the current extent of protection under the Fourteenth Amendment – an approach which is entirely
inconsistent with the Court’s reliance in Glucksberg upon
history and legal tradition.
The petitioners also argue that previously recognized
“fundamental interests . . . converge in the right asserted
here,” Brief of Petitioners 11-16, but considered separately,
the recognized liberty interests upon which the petitioners
rely do not implicate the conduct in question, and no
logical process extends their reach when they are lumped
together.
The petitioners first assert a constitutionally protected right to choose to enter into “intimate relationships,” citing Roberts v. United States Jaycees, 468 U.S.
609, 617-618 (1984), but no court has held that this nebulously defined right extended to the protection of sexual
misconduct prohibited by State law. For example, in
Marcum v. McWhorter, 308 F.3d 635, 641-643 (6th Cir.
2002), the court held that the freedom to choose to enter
into personal relationships could not extend to an adulterous relationship, since adultery has been punishable as a
crime for centuries. In this case, while the petitioners may
have a constitutional right to associate with one another,
the right to form an “intimate relationship” does not
17
protect any and all sexual conduct in which they might
17
engage in the context of that relationship.
The petitioners also rely upon the recognized constitutional right to “bodily integrity,” but the Court’s decisions
regarding bodily integrity generally pertain to unwarranted government invasion of an individual’s body, and
the individual’s right to control his own medical treatment, see Glucksberg, 521 U.S. at 777-778 (Souter, J.,
concurring), and those decisions have nothing to do with
the manner in which an individual interacts with third
parties or invades another person’s body.
The right to privacy in the home has long been recognized under both the First Amendment, see Stanley v.
Georgia, 394 U.S. 557, 564-565 (1969), and the Fourth
Amendment, see Kyllo v. United States, 533 U.S. 27, 31
(2001). However, the decision in Stanley involved the
individual’s freedom of thought, rather than conduct,
Stanley, 394 U.S. at 565-566, and that decision has never
been extended to prohibit state regulation of conduct that
does not involve expression protected by the First
Amendment. The Fourth Amendment protects against
unreasonable police entry and search of the home, but it
has never been found to protect one from prosecution for
18
otherwise criminal conduct that occurs within that home.
See Osborne v. Ohio, 495 U.S. 103, 108-110 (1990); Bowers,
478 U.S. at 195-196; Stanley, 394 U.S. at 568 n.11.
17
Parents might well have a constitutionally protected right to
maintain an intimate relationship with their children, but no one would
argue that their protected liberty interest would extend to having
sexual relations with the children.
18
The petitioners understandably disavow any complaint regarding the manner in which the police entered Lawrence’s apartment,
Brief of Petitioners 14-15, since few citizens would want to impede an
officer’s ability to enter their residence to search for an armed man said
to be “going crazy” on the premises. Pet. App. 129a.
18
By arguing that their asserted liberty interest under
the Fourteenth Amendment may be located at the “convergence” of these previously recognized rights, the petitioners implicitly admit that none of them, standing alone,
has ever been construed in a fashion that would protect an
individual from state prosecution for sexual misconduct
occurring in a private residence. The petitioners’ assertion
of a patchwork of constitutional rights which do not
implicate their conduct does not logically prove that the
conduct is in fact protected by a previously unrecognized
liberty interest.
D. No tradition of protection exists at any
level of specificity of designation of an asserted liberty interest.
The petitioners’ other quarrel with Bowers involves
the level of specificity at which the nation’s traditions are
to be analyzed in assessing the existence of a protected
liberty interest under the Fourteenth Amendment, an
issue that does not seem to have been definitively resolved
at this time. See Michael H., 491 U.S. 110, 127 n.6 (plurality opinion), 132 (O’Connor, J., concurring); County of
19
Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).
Assuming that issue does remain open at this time, it
should not be necessary to resolve it in this case, since the
petitioners cannot establish a historical tradition of
exalting and protecting the conduct for which they were
prosecuted at any level of specificity.
19
The opinion in Lewis noted: “Glucksberg presented a disagreement about the significance of historical examples of protected liberty
in determining whether a given statute could be judged to contravene
the Fourteenth Amendment. The differences of opinion turned on the
issues of how much history indicating recognition of the asserted right,
viewed at what level of specificity, is necessary to support the finding of
a substantive due process right entitled to prevail over state legislation.” Id.
19
At the most specific level, the nation has a longstanding tradition, only recently waning, of criminalizing
anal sodomy – the offense once known as “buggery” – as a
serious criminal offense. See Bowers, 478 U.S. 192-194;
William N. Eskridge, Jr., Gaylaw: Challenging the Apar20
theid of the Closet 157-158, 328-337 (App. A) (1999).
But even if the topic is broadened to include other acts
of extramarital sexual intercourse, such as fornication,
adultery, incest, prostitution, etc., the nation’s tradition is
still one characterized by prohibition and criminalization.
Most of the states have maintained, through most of their
history, statutes which made it a criminal offense to
engage in fornication and adultery as well as sodomy, and
there is no long-standing tradition of protecting the right
to engage in any sort of extramarital sexual conduct.
Fornication was a punishable offense in colonial
times, and it remained illegal in forty states until the
early 1970s. See Tracy Shallbettor Stratton, No More
Messing Around: Substantive Due Process Challenges to
State Laws Prohibiting Fornication, 73 Wash. L. Rev. 767,
780 (1998). As of 1998, it was still a crime in thirteen
states and the District of Columbia. See id. at 767 n.2;
accord, Richard Green, Griswold’s Legacy: Fornication and
Adultery as Crimes, 16 Ohio N.U.L. Rev. 545, 546 n.8
(1989).
Adultery was once a capital offense, under some
circumstances, in colonial Massachusetts, and it was
20
While acknowledging the widespread and longstanding existence
of sodomy statutes, Professor Eskridge is critical of the historical basis
for the Court’s decision in Bowers, on grounds that early sodomy
statutes were aimed primarily at the prohibition of buggery and similar
forms of unnatural coitus, rather than the oral sex act for which the
defendant in Bowers was prosecuted. See Eskridge at 156-157. That
concern is absent in this case, since it is undisputed that the act of anal
sodomy was a serious crime – originally a capital offense – from the
earliest days of the colonization period.
20
punished as a crime during the colonial period in almost
every jurisdiction. See Oliverson v. West Valley City, 875
F. Supp. 1465, 1474 (D. Utah 1995). Adultery was still
punishable as a crime “in most states . . . in 1900,” see id.
(quoting Lawrence M. Friedman, Crime and Punishment
in American History 13 (1993)), and as of 1996, it remained a crime in twenty-five states and the District of
Columbia. City of Sherman v. Henry, 928 S.W.2d 464, 470
n.3 (Tex. 1996); Green, supra at n.7.
Thus, the legislatures of the various states have
shown significant concern for the sexual morality of the
citizenry, and statutes criminalizing extramarital sexual
conduct have been pervasive throughout our national
history. The constitutionality of those statutes previously
has been thought to be “beyond doubt,” Griswold v. Connecticut, 381 U.S. 479, 498 (Goldberg, J. concurring), and
recent decisions from the lower courts have held that the
statutes are, in fact, constitutional. See, e.g., Henry, 928
S.W.2d at 471-472; Marcum, 308 F.3d at 642-643.
Furthermore, criminal prosecutions aside, the United
States had no history whatsoever of protecting the right to
engage in extramarital sex, at least until a few state
appellate courts began in the 1990s to invalidate their
sodomy statutes as violative of a state constitutional right
21
to privacy. This Court, in particular, has never recognized
21
The handful of state appellate courts that have invalidated
sodomy or homosexual conduct statutes have all predicated their
holdings upon objective indications that their state constitutions
provided more privacy protection than the Federal Constitution. See
Commonwealth v. Wasson, 842 S.W.2d 487, 492 (Ky. 1992) (basing its
ruling upon the “textual and structural differences between the United
States Bill of Rights and our own, which suggest a different conclusion
from that reached by the United States Supreme Court is more
appropriate”); Campbell v. Sundquist, 926 S.W.2d 250, 261 (Tenn. Ct.
App. 1996) (noting that both the “Tennessee Constitution and this
State’s constitutional jurisprudence establish that the right to privacy
provided to Tennesseans under our Constitution is in fact more
(Continued on following page)
21
any right to engage in extramarital sexual conduct, and it
is telling that most of the fundamental liberty interests
the Court has recognized under the Fourteenth Amendment are rooted in marriage, procreation and childrearing. An asserted right to engage in homosexual sodomy is actually inimical to the fundamental rights that
this Court has endeavored to protect.
The Court catalogued the liberty interests to which it
has accorded Fourteenth Amendment protection in
Glucksberg, 521 U.S. at 720, as follows:
In a long line of cases, we have held that, in
addition to the specific freedoms protected by the
Bill of Rights, the “liberty” specially protected by
the Due Process Clause includes the rights to
marry, Loving v. Virginia, 388 U.S. 1 (1967); to
have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one’s children, Meyer v.
Nebraska, 262 U.S. 390 (1923); Pierce v. Society
of Sisters, 268 U.S. 510 (1925); to marital privacy,
extensive than the corresponding right to privacy provided by the
Federal Constitution”); Gryczan v. State, 942 P.2d 112, 121-22 (Mont.
1997) (invalidating a statute prohibiting “deviate sexual conduct” and
noting that “Montana’s Constitution affords citizens broader protection
of their right to privacy than does the federal constitution”); Powell v.
State, 510 S.E.2d 18, 22 (Ga. 1998) (in which a general sodomy statute
was invalidated upon a finding that the “ ‘right to be let alone’ guaranteed by the Georgia Constitution is far more extensive than the right of
privacy protected by the U.S. Constitution”); Jegley v. Picado, 80 S.W.3d
332, 344 (Ark. 2002) (stating that “Arkansas’s Constitution can be held
to provide greater privacy rights than the United States Constitution”).
The fact that five state courts have invalidated sodomy statutes in
the last eleven years, on state constitutional grounds, is meager
evidence of a deeply rooted national tradition of protecting the privacy
of the conduct in issue. Too few states have taken such a step, over too
brief a period of time, to support any such inference.
22
Griswold v. Connecticut, 381 U.S. 479 (1965); to
use contraception, ibid.; Eisenstadt v. Baird, 405
U.S. 438 (1972); to bodily integrity, Rochin v.
California, 342 U.S. 165 (1952), and to abortion,
Casey, supra. We have also assumed, and
strongly suggested, that the Due Process Clause
protects the traditional right to refuse unwanted
lifesaving medical treatment. Cruzan, 497 U.S.,
at 278-279.
The conduct at issue in this case has nothing to do
with marriage or conception or parenthood and it is not on
a par with those sacred choices. Homosexual sodomy
cannot occur within or lead to a marital relationship. It
has nothing to do with families or children. The decision to
engage in homosexual acts is not like the acts and decisions that this Court previously has found worthy of
constitutional protection, and it should not be added to the
list of fundamental rights protected by the Fourteenth
Amendment.
The difference between protected conduct within the
marriage relationship and unprotected sexual conduct
outside marriage has been recognized on a number of
occasions, most famously in Justice Harlan’s dissenting
opinion in Poe v. Ullman, 367 U.S. 497, 545-546, 552-553
(1961), in which he expressed the view that “any Constitutional doctrine in this area” must be built upon the division between acts occurring within and without the
marital relationship:
Yet the very inclusion of the category of morality among state concerns indicates that society
is not limited in its objects only to the physical
well-being of the community, but has traditionally concerned itself with the moral soundness of
its people as well. Indeed to attempt a line between public behavior and that which is purely
consensual or solitary would be to withdraw from
community concern a range of subjects with
which every society in civilized times has found it
23
necessary to deal. The laws regarding marriage
which provide both when the sexual powers may
be used and the legal and societal context in
which children are born and brought up, as well
as laws forbidding adultery, fornication and homosexual practices which express the negative of
the proposition, confining sexuality to lawful
marriage, form a pattern so deeply pressed into
the substance of our social life that any Constitutional doctrine in this area must build upon that
basis. . . .
The right of privacy most manifestly is not
an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are
immune from criminal enquiry, however privately practiced. So much has been explicitly recognized in acknowledging the State’s rightful
concern for its people’s moral welfare. See 367
U.S. at pages 545-548, supra. But not to discriminate between what is involved in this case
and either the traditional offenses against good
morals or crimes which, though they may be
committed anywhere, happen to have been committed or concealed in the home, would entirely
misconceive the argument that is being made.
Adultery, homosexuality and the like are
sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is
necessarily an essential and accepted feature of
the institution of marriage, an institution which
the State not only must allow, but which always
and in every age it has fostered and protected.
It is one thing when the State exerts its power
either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite
another when, having acknowledged a marriage
and the intimacies inherent in it, it undertakes
24
to regulate by means of the criminal law the details of that intimacy.
As noted in a concurring opinion in Glucksberg,
Justice Harlan’s proposed dichotomy “provides a lesson for
today,” in that his identification of the traditionally protected liberty interest in Poe v. Ullman served to distinguish “between areas in which government traditionally
had regulated (sexual relations outside of marriage) and
those in which it had not (private marital intimacies) and
thus was broad enough to cover the claim at hand without
being so broad as to be shot-through by exceptions.” 521
U.S. at 770-772 (Souter, J., concurring).
Therefore, should the Court consider expanding the
level of specificity with which it identifies the proposed
liberty interest at issue in this case, the State urges the
Court to draw the line at the threshold of the marital
bedroom, in keeping with its past decisions emphasizing
the American tradition of marital privacy. Outside that
threshold, nothing in our nation’s “history, legal traditions,
and practices” offer the “crucial ‘guideposts for responsible
decisionmaking’ . . . that direct and restrain [the Court’s]
exposition of the Due Process Clause.” Glucksberg, 521
U.S. at 721 (quoting Collins v. Harker Heights, 503 U.S.
115, 125 (1992)).
E. Principles of stare decisis counsel against
recognition of a new protected liberty interest.
Stare decisis mandates that the Court adhere to its
holdings in Bowers. Seventeen years should be considered
a very brief period indeed, in the context of the development of fundamental rights under the Fourteenth Amendment, and the principle of stare decisis counsels against
rapid change in this area. If a right is truly fundamental, its
public acceptance and societal value should not be the
subject of vehement and widespread disagreement. Fundamental rights should be rock solid, and vacillation is
25
inconsistent with the level of durability of rights which
should be deemed “fundamental” to our society.
“Although adherence to precedent is not rigidly
required in constitutional cases, any departure from the
doctrine of stare decisis demands special justification.”
Arizona v. Rumsey, 467 U.S. 203, 212 (1984). The petitioners argue that such special justification exists in the
steady “erosion” of support for Bowers and the concomitant
advancement of the gay rights movement, Brief of Petitioners 30-31, but the Court reaffirmed in Glucksberg that
Bowers utilized the correct mode of analysis in the determination of the existence of a new liberty interest under
the Fourteenth Amendment. The fact that a few more
states have eased criminal sanctions on sodomy or homosexual conduct since 1986 does not logically affect the
validity of the conclusion in Bowers that no right to engage
in homosexual conduct can be found “deeply rooted in this
Nation’s history and tradition.” Bowers, 478 U.S. at 192.
“It is one of the happy incidents of the federal system
that a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.” New
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). The principle of federalism that
encourages the state to undertake such experiments also
operates to permit states to decline to participate in them.
All change is not for the better, and the right to be first
should be accompanied by a right to be among the last to
accept a change of debatable social value.
In Atkins, the State of Texas found itself in a minority
of states which had not legislatively limited its capital
punishment statutes in a particular fashion, and it was
obligated to join the herd because of the Eighth Amendment requirement that it comply with “evolving standards” of “contemporary values.” 122 S.Ct. at 2247. This is
not an Eighth Amendment case, and any indicia of recent
“evolving standards” is irrelevant to the identification of
those truly fundamental rights which form the core of our
26
democratic society. Courts cannot concern themselves
“with cultural trends and political movements” without
“usurping the role of the Legislature,” and while the
Legislature “may not be infallible in its moral and ethical
judgments, it alone is constitutionally empowered to
decide which evils it will restrain when enacting laws for
the public good.” Lawrence, 41 S.W.2d at 362.
For these reasons, this Court should reject the petitioners’ due process challenge and affirm the judgment of
the court below.
II.
Equal Protection
Amendment.
Under
the
Fourteenth
The petitioners also argue that their prosecution for
engaging in homosexual conduct violates the Equal Protection Clause of the Fourteenth Amendment. They argue
that section 21.06 improperly criminalizes sexual conduct
with a person of the same sex that is otherwise legal when
done with a person of the opposite sex, and they claim that
the State cannot articulate any rational basis for this
classification.
This challenge fails on two grounds. First, given the
evolution of the Texas sodomy statute towards more
liberality with respect to sexual activity, petitioners cannot
establish that the Texas Legislature purposefully discriminated against persons engaging in homosexual
conduct. Instead, this Court reasonably can infer that the
legislature, in good faith, incrementally narrowed the
State’s neutral proscriptions against sodomy in accordance
with contemporaneous developments in due process
jurisprudence. As such, instead of being the product of a
legislative choice to discriminate against homosexuals,
section 21.06 is the vestigial remainder of a predecessor
sodomy statute, reduced to its present form as a result of
the legislature’s 1973 reform of the Texas Penal Code.
Second, this Court can infer a rational basis for the
legislature’s enactment of section 21.06. The State of Texas
27
has a legitimate state interest in legislatively expressing
the long-standing moral traditions of the State against
homosexual conduct, and in discouraging its citizens –
whether they be homosexual, bisexual or heterosexual –
from choosing to engage in what is still perceived to be
immoral conduct. Section 21.06 rationally furthers that
goal by publishing the State’s moral disapproval in a penal
code of conduct for its citizens and by creating a disincentive against the conduct. The Legislature reasonably could
have concluded that lesser, unenforceable expressions of
disapproval would be ineffective to deter that conduct.
Moreover, the narrowing of the predecessor sodomy
statute to avoid constitutional challenge is in itself a
rational basis for the legislative action: viewed in historical context, the Texas Legislature’s decision was a reasonable response to the evolving due process jurisprudence of
the late 1960s and early 1970s.
This rational-basis analysis is consistent with this
Court’s analysis in Bowers v. Hardwick, 478 U.S. 186
(1986), which addressed the rationality of basing legislation on moral tradition. Although Bowers was decided on
substantive due process grounds, it stands alone as the
only modern case in which this Court has approved moral
tradition as a submitted rational basis for legislation.
Nothing has changed in the sixteen years since Bowers to
22
justify abandonment of its conclusion.
22
As discussed in more detail infra, Romer v. Evans, 517 U.S. 620
(1996), does not dictate otherwise. Instead, Romer is notable for what it
does not do: in striking down a constitutional amendment remarkably
overbroad for the purposes it purported to further, the majority’s
opinion pointedly neither revisited the rationality of moral classifications in legislation nor distinguished Bowers.
28
A. The Equal Protection Clause – standard of
review.
The Equal Protection Clause of the Fourteenth
Amendment creates no substantive rights. Vacco v. Quill,
521 U.S. 793, 799 (1997). Instead, it “embodies a general
rule that States must treat like cases alike but may treat
unlike cases accordingly.” Id.; see also City of Cleburne,
Texas v. Cleburne Living Center, 473 U.S. 432, 439 (1985)
(construing Equal Protection Clause as “essentially a
direction that all persons similarly situated should be
treated alike”).
Unless a classification warrants some form of heightened review because it jeopardizes the exercise of a fundamental right or categorizes on the basis of an inherently
suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a
legitimate state interest. Nordlinger v. Hahn, 505 U.S. 1,
10 (1992).
1. Rational-basis review.
Rational-basis review is “the most relaxed and tolerant form of judicial scrutiny under the Equal Protection
Clause.” City of Dallas v. Stanglin, 490 U.S. 19, 26 (1989).
“In general, the Equal Protection Clause is satisfied so
long as there is a plausible policy reason for the classification, the legislative facts on which the classification is
apparently based rationally may have been considered to
be true by the governmental decisionmaker, and the
relationship of the classification is not so attenuated as to
render the distinction arbitrary or irrational.” Nordlinger,
505 U.S. at 11 (citations omitted); see also Romer, 517 U.S.
at 632 (1996) (“In the ordinary case, a law will be sustained if it can be said to advance a legitimate government
interest, even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it
seems tenuous.”)
29
The rational-basis standard of review is a paradigm of
judicial restraint. F.C.C. v. Beach Communications, Inc.,
508 U.S. 307, 314 (1993). Rational-basis review in equal
protection analysis is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices, nor does it
authorize the judiciary to sit as a super-legislature to
judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor proceed along suspect lines. Heller v.
Doe by Doe, 509 U.S. 312, 319 (1993). The Court summarized the evidentiary presumptions in rational-basis
review in Heller as follows:
[A] legislature that creates these categories need
not “actually articulate at any time the purpose
or rationale supporting its classification.” Instead, a classification “must be upheld against
equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”
A State, moreover, has no obligation to produce evidence to sustain the rationality of a
statutory classification. “[A] legislative choice is
not subject to courtroom factfinding and may be
based on rational speculation unsupported by
evidence or empirical data.” A statute is presumed constitutional, and “[t]he burden is on the
one attacking the legislative arrangement to
negative every conceivable basis which might
support it,” whether or not the basis has a foundation in the record.
Id. at 320-21 (citations omitted).
When social legislation is at issue, the Equal Protection Clause allows the states wide latitude, and the
Constitution presumes that even improvident decisions
will eventually be rectified by the democratic processes.
Cleburne, 473 U.S. at 440; see also Dandridge v. Williams,
397 U.S. 471, 486 (1970) (holding that the rational basis
standard “is true to the principle that the Fourteenth
Amendment gives the federal courts no power to impose
30
upon the States their views of what constitutes wise
economic or social policy”).
2. Heightened review is neither sought
nor required.
The petitioners suggest only in a footnote that laws
which incorporate a sexual-orientation-based classification, or a gender-based classification to discriminate
against homosexuals, should be reviewed pursuant to a
heightened scrutiny standard. Brief of Petitioners 32 n.24.
This assertion is not implicated by the litigation, briefed
by the petitioners, or mandated by law.
The petitioners do not brief their request for heightened review and continue to rely solely on the rationalbasis standard of review in their equal protection challenge to the constitutionality of section 21.06. See Lawrence, 41 S.W.2d at 378 (Anderson, J., dissenting) (in
response to majority’s conclusions that there is no fundamental right to engage in sodomy, and homosexuals do not
constitute a suspect class, dissent characterizes these
conclusions as “irrelevant here because appellants do not
raise these arguments”) (emphasis added). Accordingly, this
Court’s jurisprudence would be ill-served by consideration
of a new standard not actually in controversy between the
parties. See Heller, 509 U.S. at 319 (“Even if respondents
were correct that heightened scrutiny applies, it would be
inappropriate for us to apply that standard here. Both
parties have been litigating this case for years on the
theory of rational-basis review, which . . . does not require
the State to place any evidence in the record, let alone the
extensive evidentiary showing that would be required for
these statutes to survive heightened scrutiny. It would be
imprudent and unfair to inject a new standard at this
stage in the litigation.”).
The appropriateness of applying a rational-basis
analysis to classifications based upon sexual orientation is
not a matter of controversy in this Court or the federal
31
courts of appeals. In Romer v. Evans, 517 U.S. 620 (1996),
a case in which the amendment in question specifically
classified the affected individuals in terms of sexual
orientation, this Court nonetheless utilized the rationalbasis test. Id. at 631-636. Likewise, in the federal courts of
appeals, the profusion of litigation involving the exclusion
of homosexuals from military service has provided ample
opportunity for consideration of the appropriate standard
of review, and it appears that those courts are unanimous
in finding that homosexuals do not constitute a suspect
class and that there is no fundamental right to engage in
23
homosexual conduct.
23
See, e.g., Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.), cert.
denied, 519 U.S. 948 (1996) (“rational basis is . . . the suitable standard
for review” of the military “don’t ask/don’t tell” policy); Baker v. Wade,
769 F.2d 289, 292 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986)
(“the standard for review is whether § 21.06 [of the Texas Penal Code] is
rationally related to a legitimate state end”); Equality Foundation of
Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-293 (6th
Cir. 1997), cert. denied, 525 U.S. 943 (1998) (holding that city charter
amendment pertaining to sexual orientation was subject to review
“under the most common and least rigorous equal protection norm . . .
the ‘rational relationship’ test”); Ben-Shalom v. Marsh, 881 F.2d 454,
464 (7th Cir. 1989), cert. denied, 494 U.S. 1004 (1990) (“deferential
standard of review” held applicable to military regulation targeting
homosexuals).
See also Richenberg v. Perry, 97 F.3d 256, 260 (8th Cir. 1996), cert.
denied sub nom. Richenberg v. Cohen, 522 U.S. 807 (1997) (rejecting
contention that homosexuality is “suspect classification” requiring
heightened scrutiny); Holmes v. California Army National Guard, 124
F.3d 1126, 1132 (9th Cir. 1997), cert. denied, 525 U.S. 1067 (1998)
(“because homosexuals do not constitute a suspect or quasi-suspect
class,” the military “don’t ask/don’t tell” policy is subject only “to
rational basis review”); Rich v. Secretary of the Army, 735 F.2d 1220,
1229 (10th Cir. 1984) (“classification based on one’s choice of sexual
partners is not suspect”); Steffan v. Perry, 41 F.3d 677, 684, n.3 (D.C.
Cir. 1994) (holding that a group “defined by reference” to homosexual
conduct “cannot constitute a suspect class”); Woodward v. United States,
871 F.2d 1068, 1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990)
(Continued on following page)
32
Heightened review of section 21.06 as a statute
discriminating on the basis of gender is likewise unnecessary. This Court’s heightened scrutiny in gender cases has
been directed at legislative classifications that “create or
perpetuate the legal, social, and economic inferiority of
women.” United States v. Virginia, 518 U.S. 515, 534
(1996). Such heightened scrutiny has been mandated
in recognition of the real danger that government
policies that professedly are based on reasonable
considerations in fact may be reflective of “archaic and overbroad” generalizations about gender, see Schlesinger v. Ballard, 419 U.S. 498, 506507 (1975), or based on “outdated misconceptions
concerning the role of females in the home rather
than in the ‘marketplace and world of ideas.’ ”
Craig v. Boren, 429 U.S. 190, 198-199 (1976). See
also Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 441 (1985) (differential treatment of
the sexes “very likely reflect[s] outmoded notions
of the relative capabilities of men and women”).
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994); see
also United States v. Virginia, 518 U.S. at 532 (stating
that the Court will “carefully inspect[ ] official action that
closes a door or denies opportunity to women (or to men)”).
Enforcement of section 21.06 does not involve gender
stereotyping or exclusion. The homosexual conduct statute
indulges in no stereotypes about the respective capabilities
of men and women, and it does not penalize one gender at
the expense of the other. See Miller v. Albright, 523 U.S.
420, 444-45 (1998) (rejecting claim of improper genderbased classification in Fifth Amendment equal protection
analysis of statute because “[n]one of the premises on
which the statutory classification is grounded can be fairly
(holding that a homosexual “is not a member of a class to which
heightened scrutiny must be afforded”).
33
characterized as an accidental byproduct of a traditional
way of thinking about the members of either sex”); Coalition for Economic Equity v. Wilson, 122 F.3d 692, 702 (9th
Cir. 1997) (holding that, while California’s Proposition 209
mentions race and gender, it does not logically classify
persons by race and gender).
Given these circumstances, heightened review for
statutes that classify on the basis of sexual orientation or
gender is neither raised nor required in this case.
B. The petitioners have not established their
membership in the class for which equal
protection relief is sought.
Before rational-basis review is necessary, the petitioners must establish that Texas impermissibly discriminated
against them. From the record and the briefs, however, it
is unclear what class the petitioners purport to represent
in this challenge.
The classifications challenged in the petitioners’
respective motions to quash the complaints against them
in the trial court were the criminalization of “consensual
sexual acts, including those in private, according to the sex
and sexual orientation of those who engage in them,” and
the “discriminatory classification against gay people.” See
Pet. App. 119a-120a, 131a-132a. However, the record is
silent as to the sexual orientation of the petitioners and
whether the charged conduct was occurring consensually.
See id., Appendices E, F & G, pp. 107a-141a (entirety of
trial court record).
In United States v. Hays, 515 U.S. 737 (1995), the
Court summarized the elements necessary to establish
standing:
First, the plaintiff must have suffered an ‘injury
in fact’ – an invasion of a legally protected interest that is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection
34
between the injury and the conduct complained
of . . . Third, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.
Id. at 742-743 (1995). The Court emphasized that, to avoid
dismissal on standing grounds, the party who seeks the
exercise of jurisdiction in his favor must clearly allege
facts demonstrating that he is a proper party to invoke
judicial resolution of the dispute, and thereafter support
this allegation by evidence adduced at trial. Id. at 743.
In this instance, if the petitioners contend that they
were denied equal protection because they belong to the
class of individuals who are foreclosed from having deviate
sexual intercourse with another person of the same sex,
they do not state an equal protection violation. Under the
facially neutral conduct prohibitions of section 21.06,
everyone in Texas is foreclosed from having deviate sexual
intercourse with another person of the same sex. If the
petitioners contend, however, that they were denied equal
protection because they belong to a class of individuals
who have been disproportionately impacted by section
21.06, the record is silent as to whether they in fact belong
to such a class.
This Court accords equal protection standing only to
“those persons who are personally denied equal treatment.” See id. at 743-744 (quoting Allen v. Wright, 468
U.S. 737, 755 (1984). While the petitioners clearly have
been prosecuted under section 21.06, it is not established
in this record that they possess the same-sex orientation
that they contend is singled out for discrimination by the
statute.
As such, the writ of certiorari should be dismissed as
improvidently granted, or standing should be denied to
these petitioners for lack of an adequate record to establish an equal protection violation against them personally.
35
C. The Texas Legislature did not purposefully discriminate in the passage of section 21.06.
Although the petitioners assert that the “group
targeted and harmed by the Homosexual Conduct Law is,
of course, gay people,” see Brief of Petitioners 33, and
much of their briefing is related to the unequal protection
of the laws with respect to homosexuals, see id. at 40-50,
section 21.06 does not expressly classify its offenders on
the basis of their sexual orientation. Rather, it criminalizes homosexual conduct without reference to a defendant’s sexual orientation. Lawrence, 41 S.W.2d at 353; see
also Editors of the Harvard Law Review, Sexual Orientation and the Law, at 16 (Harvard University Press 1990)
(“Although litigants and courts have assumed that [samesex] sodomy statutes classify based on sexual preference,
the statutes actually prevent all persons from engaging in
24
same-sex sodomy, regardless of sexual orientation.”).
The focus of section 21.06 on conduct, rather than
sexual orientation, does not foreclose equal protection
review. A statute, though facially neutral, may still be
challenged as constitutionally infirm under the Equal
Protection Clause if the challenger can prove that the
statute was enacted because of a discriminatory purpose.
Personnel Administrator of Massachusetts v. Feeney, 442
U.S. 256, 279 (1979). This intent component is significant:
equal protection jurisprudence focuses on the purposeful
marginalization of disfavored groups. See id. at 274, 279
24
The authors of the Harvard Law Review treatise go on to assert,
however, that an invidious classification can be inferred from the
disparate impact of the statute. Id. As will be discussed herein,
disparate impact is insufficient in itself to establish an equal protection
classification. There must be purposeful invidious discrimination
against the affected class, and a review of the historical context in
which the Texas statute was enacted does not suggest the presence of
such discrimination.
36
(holding that “discriminatory purpose” implies more than
intent as volition or intent as awareness of the consequences; it implies that the decisionmaker [in that case a
state legislature] selected or reaffirmed a particular course
of action at least partly “because of,” and not merely “in
spite of,” its adverse effects upon an identifiable group);
Hernandez v. New York, 500 U.S. 352, 372-73 (1991)
(O’Connor, J., concurring) (“An unwavering line of cases
from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are
not sufficient to establish such a violation.”).
As such, assuming that petitioners appear as representatives of the class of individuals who are disproportionately affected by section 21.06, it is incumbent upon
them to prove the purposeful intent of the Texas Legislature in order to perfect their equal protection claim. Cf.
State v. Baxley, 656 So.2d 973, 978 (La. 1995) (“Given the
presumption of the constitutionality of legislation which
does not classify on its face, it is incumbent upon the
challenger of the legislation to prove the discriminatory
purpose. In the present case, the record is devoid of any
evidence that the crime against nature statute was enacted for the purpose of discriminating against gay men
and lesbians. Therefore, the statute is not constitutionally
infirm on these grounds.”).
The record on appeal – which essentially consists of
complaints, “probable cause affidavits,” motions to quash,
and pleas of guilty – provides no such evidence. Likewise,
the petitioners have submitted no evidence of the Legislature’s intent to invidiously discriminate.
Although commentators have speculated that section
21.06 was enacted in its present form because of political
concerns about the impact of decriminalizing homosexual
conduct, an alternative interpretation of the Legislature’s
intent can be inferred from the historical context within
which section 21.06 was passed.
37
In 1854, the State’s Fifth Legislature determined that
the conduct engaged in by the petitioners in this case –
homosexual anal intercourse – should be punishable by
hard labor in the penitentiary for up to five years:
Sec. 40. If any person shall commit the
abominable and detestable crime against nature,
either with mankind or with any beast, he shall
be punished by confinement to hard labor in the
Penitentiary not exceeding five years.
Act of February 9, 1854, 5th Leg., R.S., ch. XLIX, § 40,
1854 Tex. Gen. Laws 58, 66.
Six years later, the Eighth Legislature increased both
the minimum and maximum periods of confinement to be
assessed upon conviction of that offense:
Art. 399c. If any person shall commit with
mankind or beast the abominable and detestable
crime against nature, he shall be deemed guilty
of sodomy, and on conviction thereof, he shall be
punished by confinement in the penitentiary for
not less than five nor more than fifteen years.
Act of February 11, 1860, 8th Leg., R.S., ch. 74, 1860 Tex.
Gen. Laws 95, 97.
A Reconstruction-era Texas Supreme Court found the
prohibition of the “abominable and detestable crime
against nature” to be too vague to be enforced, Fennell v.
State, 32 Tex. 378 (1869), but by 1893, the Court of Criminal Appeals was willing to look to the common law for
guidance in determining what constituted a “crime against
nature,” and it found that the conduct prohibited by the
statute was anal sexual intercourse. See Prindle v. State,
21 S.W. 360 (Tex. Crim. App. 1893).
In 1943, the statute was amended to the following
form:
Article 524. Sodomy.
Whoever has carnal copulation with a beast,
or in an opening of the body, except sexual parts,
with another human being, or whoever shall use
38
his mouth on the sexual parts of another human
being for the purpose of having carnal copulation, or who shall voluntarily permit the use of
his own sexual parts in a lewd and lascivious
manner by any minor, shall be guilty of sodomy,
and upon conviction thereof shall be deemed
guilty of a felony, and shall be confined in the
penitentiary not less than two (2) nor more than
fifteen (15) years.
Act of April 5, 1943, 48th Leg., R.S., ch. 112, § 1, 1943 Tex.
Gen. Laws 194 (hereinafter “article 524”).
In 1965, this Court recognized in Griswold v. Connecticut, 381 U.S. 479 (1965), a constitutional right of
privacy forbidding government regulation of a married
couple’s access to the use of contraceptives. Decisions
followed that further delineated similar rights of privacy,
including Loving v. Virginia, 388 U.S. 1 (1967), Eisenstadt
v. Baird, 405 U.S. 438 (1972), and Roe v. Wade, 410 U.S.
25
113 (1973).
As a result of those decisions, article 524 came under
attack in federal district court, see Buchanan v. Batchelor,
308 F. Supp. 729 (N.D. Tex. 1970), rev’d on other grounds,
401 U.S. 989 (1971), and in the Texas Court of Criminal
Appeals. See Pruett v. State, 463 S.W.2d 191 (Tex. Crim.
App. 1971). The Buchanan court, a three-judge panel,
declared article 524 unconstitutional because it violated
the liberty of married couples in their private conduct by
subjecting them to felony prosecution for private acts of
sodomy, “an intimate relation of husband and wife.” Id. at
25
In fact, Roe was announced on January 23, 1973, just two weeks
after the 63rd Texas Legislature convened on January 9, 1973, to enact
the legislation that would ultimately include the 1974 Texas Penal
Code. See 1973 Tex. Gen. Laws vi (noting date of convening as January
9, 1973).
39
732-33. The court declined to extend its holding to homosexual conduct, specifically noting the limited applicability
of Griswold to the marital context. Id. at 733. The Court
thus held article 524 unconstitutional “insofar as it
reaches the private, consensual acts of married couples.”
Id. at 735.
Although Buchanan was later reversed by this Court
and remanded for consideration as to whether abstention
was necessary in light of the Court’s decision in Younger v.
Harris, 401 U.S. 37 (1971), and the Texas Court of Criminal Appeals ultimately declined to find article 524 uncon26
stitutional in Pruett, these cases were certainly within
the constructive knowledge of the 1973 Texas Legislature
as it considered what to do with the sodomy statute.
As such, it is a reasonable inference from this context
that the Texas Legislature’s enactment of section 21.06 in
1973 was not purposefully discriminatory against homosexuals, but was instead a reform of article 524 in accordance with what then appeared to be the direction in
which constitutional privacy law was heading. The
reformatory nature of the amendments is indicated as well
by the Legislature’s reduction of the offense from a felony
punishable by confinement in the penitentiary for a
minimum two years to a misdemeanor punishable only by
a fine of up to two hundred dollars, and the Legislature’s
26
The reluctance of the Texas Court of Criminal Appeals to
invalidate the sodomy statute in Pruett may have been related to the
facts of the case. Pruett was essentially a homosexual rape case, in
which the adult defendant “confessed that he committed the offense,
after the victim had refused to consent, by striking him in the face with
his fist and making him submit.” Pruett, 463 S.W.2d at 192. The Court
expressly noted that it had not been called upon to consider the
“question of whether the sodomy statute may be invoked against
married couples for private consenual [sic] acts.” Id. at 194.
40
formulation of the statute to forbid only certain kinds of
27
homosexual conduct.
The residual differences left over from this kind of
benign incremental reform do not amount to purposeful
28
discrimination. See, e.g., McDonald v. Board of Election
Commissioners of Chicago, 394 U.S. 802, 809 (1969) (“[A]
legislature traditionally has been allowed to take reform
‘one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind,’
and a legislature need not run the risk of losing an entire
remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked.”) (citations omitted);
F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 316
(1993) (“[S]cope-of-coverage provisions are unavoidable
components of most economic or social legislation. [The
necessity of drawing a line of demarcation] renders the
precise coordinates of the resulting legislative judgment
virtually unreviewable, since the legislature must be
allowed leeway to approach a perceived problem incrementally.”).
Because there is no evidence establishing that the
Texas Legislature acted with discriminatory intent in
1973, the presumption of constitutionality persists. The
27
For example, the homosexual conduct statute does not forbid
kissing or sexual stimulation of another person of the same sex with
hands or fingers. See Baker v. Wade, 553 F. Supp. 1121, 1134 (N.D. Tex.
1982), rev’d, 769 F.2d 289 (5th Cir. 1985), cert. denied, 478 U.S. 1022
(1986).
28
The Texas Legislature reenacted the Texas Penal Code in 1993,
leaving section 21.06 intact. Act of May 29, 1993, 73rd Leg., R.S., ch.
900, § 1.01, 1993 Tex. Gen. Laws 3589. As was the case in 1973, this
reenactment of the status quo was also consistent with the thenprevailing law with respect to recognition of privacy for homosexuals.
See Bowers v. Hardwick, 478 U.S. 186 (1986). An invidious intent
cannot be inferred from the Legislature’s passive maintenance of the
status quo.
41
petitioners have not demonstrated purposeful discrimination against the class they purport to represent.
D. Section 21.06 is rationally related to a
legitimate state interest.
If a rational-basis analysis is necessary with regard to
the promulgation of section 21.06, the State’s legitimate
interest in protecting its statute from constitutional
challenge was in itself a rational basis for legislative
action. In addition, section 21.06 rationally furthers other
legitimate state interests, namely, the continued expression of the State’s long-standing moral disapproval of
homosexual conduct, and the deterrence of such immoral
sexual activity, particularly with regard to the contemplated conduct of heterosexuals and bisexuals.
1. Section 21.06 was enacted for the purpose of avoiding litigation and possible invalidation of the predecessor
statute.
As noted above, section 21.06 was enacted by a 1973
Texas Legislature which was cognizant of changing judicial attitudes towards the constitutionality of legislation
restricting private decisions of married couples. Accordingly, the decision to narrow article 524 was not the
irrational product of invidious discrimination against
homosexuals, but rather a reasonable retrenchment of the
statute to address what may have been perceived to be a
constitutional limitation of state authority to regulate
marital behavior. No similar concerns existed at that time
with respect to the possible constitutional protection of
homosexual conduct, thus vitiating the need for immediate
legislative reform in that direction.
For the reasons more fully expressed supra, this
neutral motivation for the amendment of article 524 into
the present-day statute – i.e., to avoid a potentially successful challenge to the State’s sodomy law by individuals
42
engaging in consensual heterosexual conduct – represents
a rational basis for the classification of conduct upon
which section 21.06 is based.
2. Section 21.06 furthers the legitimate
governmental interest of promotion of
morality.
The promotion of morality has long been recognized as
a lawful function of government. See, e.g., Barbier v.
Connolly, 113 U.S. 27, 31 (1884) (holding that the Equal
Protection Clause was not intended “to interfere with the
power of the state . . . to prescribe regulations to promote
the health, peace, morals, education, and good order of the
people”); Louis K. Liggett Co. v. Baldridge, 278 U.S. 105,
111-12 (1928) (“The police power may be exerted in the
form of state legislation . . . only when such legislation
bears a real and substantial relation to the public health,
safety, morals, or some other phase of the general welfare.”); Berman v. Parker, 348 U.S. 26, 32 (1954) (identifying “[p]ublic safety, public health, morality, peace and
quiet [and] law and order” as appropriate “application[s] of
the police power to municipal affairs”); Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 569 (1991) (plurality opinion)
(holding that police powers of the State extend to “public
health, safety and morals”).
Similarly, protection of family and morality has
motivated many valid governmental actions. See, e.g.,
Barnes, 501 U.S. at 569 (recognizing legislature’s right to
“protect ‘the social interest in order and morality’” in
enacting public indecency statutes); Michael H. v. Gerald
D., 491 U.S. 110, 131 (1989) (protection of “integrity of the
marital union” as legitimate state interest for denying
third-party standing to challenge legitimacy of birth); City
of Dallas v. Stanglin, 490 U.S. 19, 27 (1989) (protection of
teenagers from “corrupting influences” as legitimate state
interest for limiting access to dancehall); Ginsberg v.
United States, 390 U.S. 629, 639 (1968) (approving legislature’s legislation against distribution of “girlie magazines”
43
to minors because “legislature could properly conclude
that parents and others . . . who have this primary responsibility for children’s well-being are entitled to the support
of laws designed to aid discharge of that responsibility”).
This moral component was at the core of the Fifth
Circuit’s decision affirming the constitutionality of section
21.06 in 1985. Sitting en banc, that court found that “in
view of the strong objection to homosexual conduct, which
has prevailed in Western culture for the past seven centuries,” section 21.06 was rationally related to the
implementation of “morality, a permissible state goal,”
and, therefore, did not violate the Equal Protection
Clause. Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985),
cert. denied, 478 U.S. 1022 (1986). Other courts at that
time reached similar conclusions. See Dronenburg v. Zech,
741 F.2d 1388, 1397 (D.C. Cir. 1984) (upholding naval
regulations excluding homosexuals from service as a
permissible implementation of public morality, and noting
the unlikelihood that “very many laws exist whose
ultimate justification does not rest upon the society’s
morality”); State v. Walsh, 713 S.W.2d 508, 511-12 (Mo.
1986) (holding that “punishing homosexual acts as a Class
A misdemeanor . . . is rationally related to the State’s
constitutionally permissible objective of implementing and
promoting the public morality”).
Shortly before the courts in Baker and Dronenburg
upheld legislation related to homosexual conduct, the
Eleventh Circuit reached an opposite conclusion with
respect to Georgia’s sodomy statute. See Hardwick v.
Bowers, 760 F.2d 1202, 1212 (11th Cir. 1985) (holding that
the Georgia statute implicated Hardwick’s fundamental
rights because his homosexual activity was a private and
intimate association placed beyond the reach of state
regulation by the Ninth Amendment and the “notion of
fundamental fairness embodied in the due process clause
of the Fourteenth Amendment”).
This Court granted the Georgia Attorney General’s
petition for certiorari, and declined to invalidate Georgia’s
44
sodomy statute, finding that there was no fundamental
right to engage in homosexual sodomy. Bowers, 478 U.S. at
191. In reaching this conclusion, the Court noted the long
history of moral disapproval of homosexual conduct,
noting that “[p]roscriptions against that conduct have
ancient roots,” and that, until 1961, sodomy had been
illegal in all fifty states. Id. at 192; see also id. at 196-97
(Burger, C.J., concurring) (detailing historical genesis of
sodomy statutes).
This Court dismissed Hardwick’s assertion that there
was no rational basis for the Georgia sodomy statute,
explicitly rejecting the notion that laws may not be based
upon perceptions of morality:
Even if the conduct at issue here is not a
fundamental right, respondent asserts that there
must be a rational basis for the law and that
there is none in this case other than the presumed belief of a majority of the electorate in
Georgia that homosexual sodomy is immoral and
unacceptable. This is said to be an inadequate
rationale to support the law. The law, however, is
constantly based on notions of morality, and if all
laws representing essentially moral choices are
to be invalidated under the Due Process Clause,
the courts will be very busy indeed. Even respondent makes no such claim, but insists that
majority sentiments about the morality of homosexuality should be declared inadequate. We do
not agree, and are unpersuaded that the sodomy
laws of some 25 States should be invalidated on
this basis.
Id. at 196. This Court shortly thereafter declined to review
the constitutionality of section 21.06 of the Texas Penal
Code. See Baker v. Wade, 478 U.S. 1022 (1986) (denying
petition for writ of certiorari).
Nothing in this Court’s jurisprudence since Bowers
justifies revisiting its conclusion that morality constitutes
an appropriate basis for legislative action. Petitioners cite
Romer v. Evans, 517 U.S. 620 (1996) as antithetical to
45
Bowers, but a careful review of Romer indicates that its
application of equal protection principles to an overbroad
state constitutional amendment does not implicate the
legislature’s authority to prohibit what has traditionally
been perceived as immoral conduct.
In Romer, the citizens of the State of Colorado approved a constitutional amendment that invalidated
municipal ordinances banning discrimination on the basis
of sexual orientation, and prohibited all legislative, executive or judicial action at any level of state or local government designed to protect homosexuals, lesbians, or
bisexuals. See id. at 627. The Court summarized the
impact of the amendment:
Homosexuals, by state decree, are put in a
solitary class with respect to transactions and relations in both the private and governmental
spheres. The amendment withdraws from homosexuals, but no others, specific legal protection
from the injuries caused by discrimination, and it
forbids reinstatement of these laws and policies.
Id.
In overturning the amendment on equal protection
grounds, the Court found that the statute “has the peculiar property of imposing a broad and undifferentiated
disability on a single named group” that is “at once too
narrow and too broad,” identifying “persons by a single
trait and then den[ying] them protection across the board.”
Id. at 632-33. In other words, the Colorado initiative was
held unconstitutional because it went beyond punishment
of the act of engaging in homosexual conduct and sought to
disenfranchise individuals because of the mere tendency
or predilection to engage in such conduct.
Section 21.06 does not suffer from that flaw. It is the
homosexual conduct that is viewed as immoral, and a
statute rendering that conduct illegal is obviously related
to the goal of discouraging the conduct and thereby implementing morality. A statute that, say, prohibited all
46
individuals with a homosexual orientation from attending
public schools would not be rationally related to that goal
and would violate the Equal Protection Clause, but a
statute imposing criminal liability only upon persons who
actually engage in homosexual conduct is perfectly tailored to implement the communal belief that the conduct
is wrong and should be discouraged.
Notably, the issue of morality as a rational basis for
29
the amendment was not implicated in Romer. The lawyers challenging Amendment 2 did not ask this Court to
overrule Bowers, and the lawyers for the State of Colorado
avoided relying on it in their arguments. Romer, 517 U.S.
at 635 (identifying primary rationale for Amendment 2 as
“respect for other citizens’ freedom of association” and
Colorado’s “interest in conserving resources to fight
discrimination against other groups”); 517 U.S. at 641
(Scalia, J., dissenting) (“Respondents’ briefs did not urge
overruling Bowers, and at oral argument respondents’
counsel expressly disavowed any intent to seek such
overruling.”); see generally Thomas C. Grey, Bowers v.
Hardwick Diminished, 68 U. Colo. L. Rev. 373, 375 &
notes 13-14 (1997) (discussing general absence of advocacy
related to Bowers in the Romer litigation).
In the absence of any party raising morality as a
justification, the Romer court prudentially declined to
raise the issue itself. As the court below observed:
29
The Colorado constitutional amendment, which one commentator characterized as a “squirrelly antigay initiative adopted by narrow
margins in an outlier state,” see William N. Eskridge, Jr., Gaylaw:
Challenging the Apartheid of the Closet 229 (1999), lent itself to a
holding that bypassed the role of morality in legislation. See also Lynn
A. Baker, The Missing Pages of the Majority Opinion in Romer v. Evans,
68 U. Colo. L. Rev. 387, 408 (1997) (arguing that Romer is generally
limited to its facts because “it is Amendment 2’s unjustifiable and
unprecedented scope, [its] ‘sheer breadth,’ that distinguishes it” from
other legislation).
47
Romer . . . does not disavow the Court’s previous holding in Bowers; it does not elevate homosexuals to a suspect class; it does not suggest
that statutes prohibiting homosexual conduct
violate the Equal Protection Clause; and it does
not challenge the concept that the preservation
and protection of morality is a legitimate state
interest.
Lawrence, 41 S.W.3d at 355. As such, Romer does not
contradict the ultimate conclusion in Bowers – that majoritarian moral standards can be a rational basis for
prohibitions against certain homosexual conduct.
The State does not dispute that invidious intent can
be inferred from classifications based on race, gender,
economic status, or mental retardation. See, e.g., Palmore
v. Sidoti, 466 U.S. 429 (1984) (reversing order denying
custody based on racial considerations); Frontiero v.
Richardson, 411 U.S. 677 (1973) (reversing gender-based
classification in distribution of military benefits); United
States Department of Agriculture v. Moreno, 413 U.S. 528
(1973) (striking down grossly overbroad classification
discriminating against “individuals who live in households
containing one or more members who are unrelated to the
rest”); Cleburne, 473 U.S. 432 (1985) (striking down zoning
restriction against group home for mentally retarded
based on negative reactions of neighbors to proximity). In
those cases, the Court fairly reduced the asserted bases for
discriminatory classifications to unsubstantiated negative
views about the affected individuals. See Romer, 517 U.S.
at 635 (prohibiting “status-based” legislation that is “a
classification of persons undertaken for its own sake”).
Those classifications do not implicate a moral component, though, as does a classification identifying types of
homosexual conduct. As previously noted, the history of
prohibitions against homosexual sodomy – in the common
48
law, American law, and Texas law – is ancient, and the
legislature’s deference to these moral traditions is appro30
priate and rational.
The prohibition of homosexual conduct in section
21.06 represents the reasoned judgment of the Texas
Legislature that such conduct is immoral and should be
31
deterred. Although the application of sodomy statutes is
not common because of the nature and circumstances of
the offense, the statutes, like many others, express a
baseline standard expressing the core moral beliefs of the
people of the State. Whether this Court perceives this
position to be wise or unwise, long-established principles
of federalism dictate that the Court defer to the Texas
Legislature’s judgment and to the collective good sense of
the people of the State of Texas, in their effort to enforce
public morality and promote family values through the
promulgation of penal statutes such as section 21.06.
30
See Michael McConnell, The Role of Democratic Politics in
Transforming Moral Convictions into Law, 98 Yale L. Rev. 1501 (1989),
arguing that deference to traditions of morality is “natural and
inevitable . . . but it is also sensible”:
An individual has only his own, necessarily limited, intelligence and experience (personal and vicarious) to draw upon.
Tradition, by contrast, is composed of the cumulative
thoughts and experiences of thousands of individuals over
an expanse of time, each of them making incremental and
experimental alterations (often unconsciously), which are
then adopted or rejected (again, often unconsciously) on the
basis of experience – the experience, that is, of whether they
advance the good life.
31
In fact, although the statute is unlikely to deter many individuals with an exclusively homosexual orientation, the Legislature
rationally could have concluded that section 21.06 would be effective to
some degree in deterring the remaining population (i.e., persons with a
heterosexual or bisexual orientation) from detrimentally experimenting
in homosexual conduct.
49
III. Summary.
Public opinion regarding moral issues may change
over time, but what has not changed is the understanding
that government may require adherence to certain widely
accepted moral standards and sanction deviation from
those standards, so long as it does not interfere with
constitutionally protected liberties. The legislature exists
so that laws can be repealed or modified to match prevailing views regarding what is right and wrong, and so that
the citizens’ elected representatives can fine-tune the
severity of the penalties to be attached to wrongful conduct. Perhaps homosexual conduct is not now universally
regarded with the same abhorrence it inspired at the time
of the adoption of our Federal Constitution, but any lag in
legislative response to a mere change of public opinion – if
such a lag actually exists – cannot and must not constitute
the basis for a finding that the legislature’s original
enactment exceeded its constitutional authority.
As stated in Glucksberg, 521 U.S. at 735-36, there is
“an earnest and profound debate about the morality,
legality and practicality” of the statute in question; and
the affirmance of the decision of the court of appeals in
this case will “permit this debate to continue, as it should
in a democratic society.”
50
CONCLUSION
It is respectfully submitted that the petition for writ of
certiorari should be dismissed as improvidently granted,
or, in the alternative, that the judgment of the Texas Court
of Appeals for the Fourteenth District should be in all
things affirmed.
CHARLES A. ROSENTHAL, JR.
Harris County District Attorney
WILLIAM J. DELMORE III*
SCOTT A. DURFEE
Assistant District Attorneys
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
*Counsel of Record
Counsel for Respondent
Litigators Making a Difference
Transcripts:
John Geddes Lawrence and Tyron
Garner v. Texas
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
1
IN THE SUPREME COURT OF THE UNITED STATES
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3
JOHN GEDDES LAWRENCE AND
:
4
TYRON GARNER,
:
Petitioners
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v.
:
:
No. 02-102
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TEXAS.
:
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Washington, D.C.
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Wednesday, March 26, 2003
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The above-entitled matter came on for oral
12
argument before the Supreme Court of the United States at
13
11:09 a.m.
14
APPEARANCES:
15
PAUL M. SMITH, ESQ., Washington, DC; on behalf of
16
the Petitioners.
17
CHARLES A. ROSENTHAL, ESQ., District Attorney, Harris
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County Houston, Tex.; on behalf of Texas.
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C O N T E N T S
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ORAL ARGUMENT OF 3
PAUL M. SMITH, ESQ
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On behalf of the Petitioners 3
CHARLES A. ROSENTHAL, JR.
On behalf of Texas 7
REBUTTAL ARGUMENT OF
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PAUL M. SMITH, ESQ
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PAGE
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On behalf of the Petitioners 10
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P R O C E E D I N G S
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(11:09 a.m.)
CHIEF JUSTICE REHNQUIST:
We'll hear argument
4
next in No. 02-102, John Geddes Lawrence and Tyron Garner
5
v. Texas. 6
Mr. Smith. 7
ORAL ARGUMENT OF PAUL M. SMITH
8
ON BEHALF OF THE PETITIONERS
9
10
11
MR. SMITH:
Mr. Chief Justice, and may it please
the Court. The State of Texas in this case claims the right
12
to criminally punish any unmarried adult couple for
13
engaging in any form of consensual sexual intimacy that
14
the State happens to disapprove of. 15
It further claims that there's no constitutional
16
problem raised by a criminal statute that is directed not
17
just at conduct, but at a particular group of people, a
18
law that criminalizes forms of sexual intimacy only for
19
same-sex couples and not for anyone else in the State who
20
has -- has the right to make a free choice to engage in
21
the identical conduct. 22
Petitioners are two adults who were arrested in
23
a private home and criminally convicted simply because
24
they engaged in one of the forms of sexual intimacy that
25
is on the banned list in the State of Texas for same-sex
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couples. They bring two constitutional claims to the
2
3
Court today.
4
implicit in our concept of order of liberty, must be the
5
right of all adult couples, whether same-sex or not, to be
6
free from unwarranted State intrusion into their personal
7
decisions about their preferred forms of sexual
8
expression.
9
justification under the Equal Protection Clause for a law
10
that regulates forms of sexual intimacy that are permitted
11
in the State only for same-sex couples, thereby creating a
12
kind of a second class citizenship to that group of
13
people. 14
First, among the fundamental rights that are
Second, there's no legitimate and rational
QUESTION:
On your substantive due process
15
submission, Mr. Smith, certainly, the kind of conduct
16
we're talking about here has been banned for a long time. 17
Now you point to a trend in the other direction, which
18
would be fine if you're talking about the Eighth
19
Amendment, but I think our case is like Glucksberg, say,
20
if you're talking about a right that is going to be
21
sustained, it has to have been recognized for a long time. 22
And that simply isn't so.
23
MR. SMITH:
The Court's cases, Mr. Chief
24
Justice, say that history is a starting point, not the end
25
point of the analysis.
And I think that it's important to
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look at history as a whole and one of the errors that I
2
think that the Court made in Bowers v. Hardwick was only
3
looking at the issue in terms of homosexual sodomy and not
4
looking at the issue in general terms, which is the right
5
of everyone to decide for themselves about consensual
6
private sexual intimacy.
7
whole, you find a much more complicated picture.
8
all, you find that sodomy was regulated going back to the
9
founding for everyone and indeed the laws in the 19th
If you look at the history as a
First of
10
century didn't focus on same-sex couples, they focused on
11
particular --
12
QUESTION:
Well, you're getting to your equal
13
protection argument now.
14
The first is, your -- your -- your fundamental right
15
argument, which has nothing to do with equal protection?
16
MR. SMITH:
17
QUESTION:
18
19
Let's -- let's separate the two. Well, Your Honor --
So the same-sex/other-sex aspect
doesn't come into it --
MR. SMITH:
I think it does come into it,
20
because if you're going to suggest that the state of the
21
law on the books in the 19th century is the touchstone you
22
have to take into account that in the 19th century at
23
least on the face of the law married couples were
24
regulated in terms of their forms of sexual intimacy that
25
were created for them.
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QUESTION:
It may well be, but so were same-sex
3
MR. SMITH:
Indeed, they all were, Your Honor. 4
QUESTION:
So all same-sex couples could not --
2
couples. 5
could not perform this act lawfully.
6
need than that?
7
that and say, oh, but it was also prohibited for -- for
8
other sex couples, you're getting into an equal protection
9
argument, it seems to me, not a fundamental right
10
It was prohibited.
What more do you
When you go beyond
argument. MR. SMITH:
11
I guess I'm suggesting Mr. --
12
Justice Scalia, that it's been conceded here by this
13
State, it was conceded by the State of Georgia 17 years
14
ago, that married couples can't be regulated as a matter
15
of substantive due process in their personal sexual
16
expression in the home.
17
law on the books in the 19th century can't be the deciding
18
factor. QUESTION:
19
20
21
That means that the state of the
They conceded it.
I haven't conceded
it. MR. SMITH:
Your Honor.
That may well be true. 22
I was -- I was working with the assumption that there may
23
be Justices who -- of the view that married couples do
24
have such a right and I am suggesting that the real issue
25
here is whether that fundamental right extends outside the
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marital context into other unmarried couples who form
2
bonds and have -- and -- for whom sexual intimacy plays an
3
equally important role in their lives. 4
QUESTION:
Were you talking specifically about
5
this Eisenstadt against Baird where there was an unmarried
6
couple -- while there was an unmarried person and the
7
conduct in question would have been perhaps in the 19th
8
century, early 19th century, criminal?
9
about fornication? 10
MR. SMITH:
Are you talking
Yes, Justice Ginsburg.
I think the
11
Court in -- has moved from Griswold to Eisenstadt -- has
12
moved in the contraception area outside of the marital
13
context to the unmarried context, certainly the right --
14
the qualified right to abortion applies to unmarried
15
people, as well as married people. And I think that the
16
Court in -- in looking at this issue of the scope of the
17
fundamental right to make choices about sexual intimacy
18
ought to take into account not just the state of law on
19
the books in the 19th century but a couple of other
20
factors, one the change in enforcement in the last 50
21
years because the Court's fundamental rights cases all do
22
look at current laws, as well as 19th century law and also
23
even in the 19th century, the fact that there's no record
24
of active enforcement of these laws against conduct -- of
25
adults consensual occurring in the private setting and
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that's true for married couples, it's true for different-
2
sex couples who weren't married, it's true for same-sex
3
couples.
4
country going back to the founding involves coercion, it
5
involves children.
6
doesn't involve the kind of conduct that's at issue here. The enforcement of the sodomy laws of this
It involves public activity.
It
7
So you really have a tradition of respect for
8
the privacy of couples in their -- in their home, going
9
back to the founding and I think then what began to happen
10
in 1960 was a recognition that we should take that
11
tradition and -- and turn it into positive law on the
12
books. 13
And so you now had three quarters of the States
14
who no longer regulate this conduct for anyone based on a
15
recognition that it's not consistent with our basic
16
American values about the relationship between the
17
individual and the State. 18
QUESTION:
Well, it depends on what you mean by
19
our basic American values, to revert to what the Chief
20
Justice was suggesting earlier.
21
this case is whether we're going to adhere to -- in the
22
first part of the case, not the equal protection aspect. 23
It's whether we're going to adhere to what -- what we said
24
in -- in Glucksberg, mainly that before we find a
25
substantive due process right, a fundamental liberty, we
Really what's at issue in
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have to assure ourselves that that liberty was objectively
2
deeply rooted in this Nation's history and tradition. That's what we said in Glucksberg and we've said
3
4
it in other cases.
Or are we going to depart from that
5
and go to the approach that we've adopted with regard to
6
the Eighth Amendment, which is it evolves and changes in
7
-- in social values will justify a new perception of what
8
is called unusual punishment. Now, why should we -- why should we slip into
9
10
the second mode?
11
had laws against flagpole sitting at one time, you know,
12
there was a time when it was a popular thing and probably
13
annoyed a lot of communities, and then almost all of them
14
repealed those laws. Does that make flagpole sitting a fundamental
15
16
I'm -- I mean, suppose all the States
right? MR. SMITH:
17
No, Your Honor, but the Court's
18
decisions don't look just at history, they look at the --
19
at the function that a particular claimed freedom plays in
20
the lives of real people.
21
an issue.
22
23
That's why contraception became
That's why abortion became an issue. QUESTION:
I don't know what you mean by the
function it plays in the lives of real people. 24
MR. SMITH:
25
QUESTION:
The Court has said that --
Any law stops people from doing what
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they really want to do. MR. SMITH:
2
The Court has said that it's going
3
to use reasoned judgment to identify a realm of personal
4
liberty that involves matters of central and core to how a
5
person defines their own lives, and relates to key other
6
people. It's about moral upbringing of children in the
7
8
home.
It's about procreation or nonprocreation in your
9
sexual relations with your mate.
It's about basic
10
questions of what kind of a family you're going to live
11
with and other intimate associations. QUESTION:
12
Well, you say it's about procreation
13
or nonprocreation, but none of the cases that you have
14
talked about involved nonprocreation, did they? MR. SMITH: They certainly involved the right to
15
16
decide to engage in sexual relations with -- while
17
preventing procreation, that's what -- that's what
18
Griswold and Eisenstadt and Carey all say you have a right
19
to do.
20
beget children and then that right resides with unmarried
21
people as much as it resides with married people. 22
And I submit to you that it's illogical,
That there's a right to decide whether to bear and
23
fundamentally illogical to say that an unmarried couple
24
has a right free of State intrusion to decide whether or
25
not to have procreative sex or nonprocreative sex, but
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doesn't have the right to be free from State intrusion --
2
free from a law that says you can't have any sexual
3
intimacy at all. There's a -- there's a jagged piece
4
missing from the edifice of this Court's substantive
5
fundamental rights jurisprudence. 6
QUESTION:
It doesn't say you can't have -- you
7
can't have any sexual intimacy.
8
sexual intimacy with a person of the same sex. 9
MR. SMITH:
It says you cannot have
This particular law does that, yes,
10
Your Honor, but certainly our -- our submission is that
11
fornication laws and -- and laws involving sodomy
12
regulation more broadly would be equally unconstitutional,
13
because they involve --
14
QUESTION:
But your position, as I understand
15
it, is even if you take the narrowest view of Glucksberg
16
and even if you say there's got to be a positive
17
historical sanction, that in fact there is no historical
18
-- no substantial historical evidence to the contrary
19
because, A, the -- the sodomy laws were not enforced
20
against consensual activity historically and B, they were
21
not aimed at homosexual as opposed to sodomy in general? 22
MR. SMITH:
23
QUESTION:
24
25
Right. Is that -- your historical point, you
say even if I accept your argument, I should win? MR. SMITH:
Yes, Your Honor.
I think first of
11
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all that the positive law, the law on the books proves too
2
much because it intruded right into the marital bedroom
3
and that the record of enforcement which may be more
4
informative actually supports us rather than supporting
5
the notion that this is something that can be regulated. QUESTION:
6
What do you mean by the record of
7
enforcement, that there were -- that what happened in this
8
case was an accidental intrusion of the police?
9
didn't come into the bedroom looking for people conducting
They
10
illicit sexual relations?
11
reason and happened to discover these -- these men in that
12
conduct. 13
They were there for another
What do you mean by lack of enforcement? The
14
police have not gone around knocking on bedroom doors to
15
see if anyone -- I mean -- this is not the kind of a crime
16
that the police go around looking for, but do you have any
17
evidence to show that when they -- when they found it
18
being committed, they turned a blind eye to it and did not
19
prosecute it? 20
MR. SMITH:
The evidence we have is the -- is
21
the absence of reported cases discussing arrests for that
22
kind of conduct. 23
QUESTION:
Well, that's because it's -- it's an
24
act committed in private, and -- and the police respect
25
the privacy of -- of one's home, of one's bedroom, and so
12
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they don't investigate and find it. But it seems to me what you would need is
2
3
evidence that when the police discovered this matter, they
4
said, oh, well, these are not laws that we enforce.
5
don't see any evidence of that sort. MR. SMITH:
6
I
Certainly it seems to us there's a
7
significance to the fact that it has never been treated
8
as, for example, drug use in the home has been treated. 9
And people do -- the police obviously do actively seek to
10
infiltrate homes to find that kind of activity, it's been
11
treated in a categorically different way.
QUESTION:
12
But perhaps --
To what extent can you characterize
13
it?
14
this line.
15
characterize it as saying that the history has gone
16
exactly the opposite direction than what's been suggested. 17
But if you go back to colonial times really, the laws not
18
only were different but look at the prosecutions.
19
they did prosecute people for sex crimes.
20
prosecute people for same-sex crimes.
21
across the history, it's only recently that people have
22
been prosecuted for same-sex crimes.
23
characterization?
24
25
I mean, the ACLU brief has a lot of evidence along
I -- and it seemed to me they want to
And
But they didn't
And then if you go
Is that a fair
What is the real record? MR. SMITH:
The argument about 19th century
enforcement is that they didn't prosecute anyone for
13
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private and consensual crimes involving adults, that they
2
worried about children, they worried about public
3
activity, they worried about coercion, but that they
4
didn't worry about same-sex or different-sex sodomy.
5
as to the equal protection point which I think I should
6
get to in my remaining time.
7
addition to intruding into that area of important
8
fundamental protections, limits its focus just to one
9
small minority of the people of the State of Texas.
Now
This is a statute which in
It
10
says that these specified forms of sexual intimacy called
11
deviate sexual intercourse are illegal only for same-sex
12
couples and not for anyone else in the State of Texas. 13
14
15
16
QUESTION:
Well, what about a statute that
covered both? MR. SMITH: Well, I think that would be
unconstitutional under my first point, Your Honor. 17
QUESTION:
18
MR. SMITH:
Right. I think there is a multiple --
19
multiply unconstitutional statute, because it does the
20
second thing as well, it says that --
21
22
23
QUESTION:
Well, if the statute covered both,
would there be an equal protection argument? MR. SMITH:
If there was a record of enforcement
24
almost exclusively as to same-sex couples, I think there
25
would be potential constitutional problems there, but the
14
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statutory language itself would not involve an equal
2
protection problem of the same sort that we're dealing
3
with here.
4
QUESTION:
5
statutes like that?
6
about adultery that don't cover sexual relations of one of
7
the married couple with someone else of the same sex?
8
they unconstitutional because of denial of equal
9
protection? 10
MR. SMITH:
Mr. Smith, aren't there a lot of
Aren't there statutes in many States
I don't know whether statutes
11
actually are written that way, Your Honor.
12
would make is that when a statute --
13
QUESTION:
What about rape laws?
The point I
There are --
14
there are rape laws that -- that only apply to -- to
15
male/female rape.
16
MR. SMITH:
That may be as well.
17
QUESTION:
You think that they're
18
19
Are
I think --
unconstitutional? MR. SMITH:
I didn't suggest that they're
20
unconstitutional.
My point is that when a statute is
21
limited to one particular group of people, particularly a
22
minority of people in the State, that that limitation
23
itself has to be justified under equal protection, that
24
that's a classification of people, not merely a definition
25
of conduct.
And that if the -- if the justification of
15
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the line that was drawn here is -- is insufficient as a
2
matter of mere rationale basis analysis.
3
QUESTION:
Because --
I don't understand that. Suppose the
4
State has a rape law that -- that, you know, that really
5
requires the penetration of the female sex organ by --
6
which is the classic common-law definition of rape, and it
7
has no -- no law of -- about homosexual rape.
8
that that law would be unconstitutional? 9
MR. SMITH:
You think
I think it would have to be
10
justified by the State.
11
evidence that this is not a problem that needs to be
12
addressed or that the victims are more able to protect
13
themselves, they may have -- they may have --
14
QUESTION:
They may well come in with
One step at a time?
This is more
15
common? This is -- or this is something that we find
16
more -- more -- more -- more odious? 17
MR. SMITH:
Well, the one thing that I submit,
18
the Court, the State should not be able to come in to say
19
is we are going to permit ourselves the majority of people
20
in our society full -- full and free rein to make these
21
decisions for ourselves but there's one minority of people
22
don't get that decision and the only reason we're going to
23
give you is we want it that way.
24
unequal in their choices and their freedoms, because we
25
think we should have the right to commit adultery, to
We want them to be
16
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commit fornication, to commit sodomy and the State should
2
have no basis for intruding into our lives but we don't
3
want those people over there to have the same right. QUESTION:
4
I mean you you can put it that way,
5
but society always -- in a lot of its laws makes these
6
moral judgments, you can make it sound very puritanical,
7
the -- you know, the laws -- the laws against bigamy, I
8
mean, who are you to tell me that I can't have more than
9
one wife?
You blue-nose bigot.
Sure.
You can make it
10
sound that way, but these are laws dealing with public
11
morality.
12
ever told them they're unconstitutional simply because
13
there are moral perceptions behind them.
14
different from bigamy? They've always been on the book, nobody has
Why is this
15
MR. SMITH: First of all, the first law that's
16
appeared on the books in the States of this country that
17
singles out only same sex sodomy appeared in the '60s and
18
the '70s and it did not -- and it does not go way back,
19
this kind of discrimination.
20
protection of an institution that the State creates for
21
its own purposes and there are all sorts of potential
22
justifications about the need to protect the institution
23
of marriage that are different in kind from the
24
justifications that could be offered here involving merely
25
a criminal statute that says we're going to regulate these
Now, bigamy involves
17
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peoples behaviors, we include a criminal law which is
2
where the most heightened form of -- of people protection
3
analysis ought to apply.
4
McLaughlin, Your Honor, where you had a statute that said
5
we're going to give an specially heightened penalty to
6
cohabitation, but only when it involves a white person
7
with a black person.
8
different, and the State there made the argument we're
9
merely regulating a particular form of conduct, and that's
This case is very much like
That interracial cohabitation is
10
a different form of conduct than -- than intro racial
11
cohabitation.
12
You're classifying people.
13
be justified. And this Court very clearly said no. And that classification has to
And this Court at many times said a mere
14
15
disapproval of one group of people, whether it be the
16
hippie communes in Moreno or the mentally retarded in
17
Cleburne, or indeed gay people. QUESTION:
18
But all -- almost all laws are based
19
on disapproval of either some people or some sort of
20
conduct.
21
That's why people legislate. MR. SMITH:
And what this Court does under the
22
equal protection clause is -- is -- standard as a bull
23
work against arbitrary government when the -- when there
24
is no rational justification for the line that is drawn. 25
QUESTION:
Well, do you -- do you -- in order to
18
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win under an equal protection argument, do you have to
2
apply some sort of heightened scrutiny? MR. SMITH:
3
We certainly do not think we do,
4
Your Honor.
We think this fails rational basis scrutiny,
5
just as the law did in Romer, in Cleburne, in Moreno, in
6
Eisenstadt, all of those laws were thrown out under
7
rational basis scrutiny, because the State basically
8
didn't come up with anything other than we want it that
9
way.
We want these people to be excluded.
10
distaste for them.
11
disapproval, or hostility, however historically based, is
12
not sufficient.
13
basis --
14
15
16
We disapprove of them.
We'd had
It's mere
And certainly even applying the rational
QUESTION:
We said the opposite in Bowers,
didn't we? Overrule bounds essentially on that point?
MR. SMITH:
Well, certainly Bowers is not an
17
equal protection case and it didn't involve this kind of
18
discrimination. 19
QUESTION:
20
MR. SMITH:
21
22
No I was still talking about the
level of scrutiny under equal protection, Your Honor. QUESTION:
23
so I'll know which? 24
MR. SMITH:
25
The equal protection and on to the --
Maybe you ought to hold up one hand
It's hard when you have these two
points to shift back and forth.
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2
QUESTION:
I understand.
We had the same
problem in the last case --
3
MR. SMITH:
Three weeks ago, yes, Your Honor. 4
The -- but the Court in applying even the
5
rational basis standard has not been insensitive to the
6
reality of what the world is like, and to the fact that
7
some groups of -- some classifications tend to be
8
involving minorities that have had histories of
9
discrimination against them and that the overall effect of
10
some line-drawing can be very harmful.
11
the Court looked at the actual effects of the -- of the
12
amendment in the Constitution and all of the many ways in
13
which it caused harm.
14
it -- while it purports to just to regulate sexual
15
behavior, has all sorts of collateral effects on people.
16
People in the States who still regulate sodomy everyday
17
they're denied visitation to their own children, they're
18
denied custody of children, they're denied public
19
employment.
20
they're labeled as criminals merely because they've been
21
identified as homosexuals.
22
In Romer itself,
Here you have a statute that while
They're denied private employment, because
QUESTION:
And that we submit --
If you prevail, Mr. Smith, and this
23
law is struck down, do you think that would also mean that
24
a State could not prefer heterosexuals to homosexuals to
25
teach kindergarten? 20
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MR. SMITH:
I think the issue of -- of
2
preference in the educational context would involve very
3
different criteria, Your Honor, very different
4
considerations, the State would have to come in with some
5
sort of a justification. 6
7
8
9
QUESTION:
A justification is the same that's
alluded to here, disapproval of homosexuality. MR. SMITH:
Well, I think it would be highly --
highly problematic, such a -- such a justification. 10
QUESTION:
11
MR. SMITH:
Yes, it would? If that were the only justification
12
that could be offered, there was not some showing that
13
there would be any more concrete harm to the children in
14
the school. 15
QUESTION: Only that the children might -- might
16
be induced to -- to follow the path of homosexuality.
17
that would not be -- that would the not be enough? 18
MR. SMITH:
And
Well, I -- I think the State has to
19
have a greater justification for its discrimination than
20
we prefer pushing people towards heterosexuality.
21
amounts to the same thing as disapproval of people's
22
choices in this area and there has to be a more -- more
23
reasons and justifiable distinction than simply we prefer
24
this group of people, the majority, instead of this group
25
of people, the minority. 21
Alderson Reporting Company
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That
1
Justice Jackson in the railway express case said
2
very eloquently that the equal protection clause is an
3
important bulwark against arbitrary government because
4
it's there to make sure that legislators don't avoid
5
political retribution by imposing onerous burdens only on
6
one minority, but that in fact the majority will live by
7
the same rules as purports to impose on everybody else. QUESTION:
8
9
Mr. Smith before you continue down to
the equal protection line.
Your first argument was the
10
right of personal privacy in one's most intimate sexual
11
relations, you were asked and you didn't get a chance to
12
answer because you went back on your equal protection
13
track, you are asking the Court to overrule Bowers against
14
Hardwick.
I thought that was very --
15
MR. SMITH:
Yes, Your Honor. 16
We're asking you to overrule it and we think
17
that the right of -- of the fundamental right of unmarried
18
people to make these choices about private adult
19
consensual intimacy applies for different sex couples as
20
well as same sex couples and that Bowers was wrong for
21
essentially three reasons, first it posed the question too
22
narrowly by focusing just on homosexual sodomy, which is
23
just one of the moral choices that couples ought to
24
have -- that people ought to have available to them. 25
And second in its analysis of history, which I
22
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think I explained already and third, and perhaps most
2
importantly, in the assumptions that the Court made in
3
1986 about the realities of gay lives and gay
4
relationships, the Court simply asserted in the Bowers
5
case that there's no showing that has been demonstrated
6
between the opportunity to engage in this conduct and
7
family. 8
9
And certainly while it may not have been shown
in that case or even apparent to the Court in 1986, I
10
submit it has to be apparent to the Court now that there
11
are gay families that family relationships are
12
established, that there are hundreds of thousands of
13
people registered in the Census in the 2000 census who
14
have formed gay families, gay partnerships, many of them
15
raising children and that for those people, the
16
opportunity to engage in sexual expression as they will in
17
the privacy of their own homes performs much the same
18
function that it does in the marital context, that you
19
can't protect one without the other, that it doesn't make
20
sense to draw a line there and that you should protect it
21
for everyone. That this is a fundamental matter of
22
American values. 23
So those are the three reasons we ask you to
24
overrule Bowers v. Hardwick as to the fundamental rights
25
aspect of the case and that we think that that is an area
23
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where the Court should go -- should go back and reconsider
2
itself. 3
The Court has now left open for nearly 30 years
4
the question of whether anybody outside has a right -- has
5
a privacy right to engage in consensual sexual intimacy in
6
the privacy of their home. 7
And I submit to you, you know, while the Court
8
has left that unanswered, the American people have moved
9
on to the point where that right is taken for granted for
10
11
everyone. Most Americans would be shocked to find out that
12
their decision to engage in sexual intimacy with another
13
person in their own home might lead to a knock on the door
14
as occurred here and a criminal prosecution. 15
And that -- that reality is something that the
16
Court needs to take into account and certainly in so
17
doing, it shouldn't -- in constructing its fundamental
18
rights edifice draw distinctions between gay couples and
19
other couples. 20
21
QUESTION:
You probably say the same about
adultery, you think adultery laws are unconstitutional? 22
MR. SMITH:
I think that the state has --
23
QUESTION:
24
same way about that, you know.
25
to do, but I certainly don't expect a knock on the door
I mean think people probably feel the
It may not be a nice thing
24
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and go to jail for it. MR. SMITH:
2
Your Honor, adultery is a very
3
different case.
4
protecting the marital contract which people voluntarily
5
take on.
6
It involves the State interests in
And -- and so in assessing. QUESTION:
7
to the State?
8
generation, right? Why is the marital contract important
Because it's the source of -- of the next
9
MR. SMITH:
10
QUESTION:
Sure, the State is --
And you think that there's not some
11
of the same thinking behind the conscious choice of the
12
State to favor heterosexual and marital sex over
13
homosexual sex? 14
MR. SMITH:
Well, I can understand a law which
15
says we're going to attempt to channel heterosexuals
16
towards marriage by making them -- making it illegal for
17
them to have sex without marriage.
18
that law under -- under that kind of rational which only
19
regulates same sex couples and says you can't have sex but
20
everyone else has a right to do that. 21
I can't understand
As for adultery and all of the other parade of
22
horribles which people have raised in their briefs, it
23
seems to me you've got to look at the individual interests
24
and the State interests and their dramatically different
25
in all of those cases incest, prostitution, all of
25
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these -- bestiality, all of these things either there's
2
very little individual interests or there's very
3
heightened State interest or both, in all of those cases,
4
so the idea that by recognizing the right of all adult
5
couples to make choices like this in their own home the
6
Court is going to open up a whole can of worms, I submit,
7
is correct. If I could reserve the balance of my time, Your
8
9
Honor. 10
CHIEF JUSTICE REHNQUIST:
Very well, Mr. Smith. 11
Mr. Rosenthal, we'll hear from you. 12
ORAL ARGUMENT OF CHARLES A. ROSENTHAL, JR.
13
ON BEHALF OF TEXAS
14
15
16
MR. ROSENTHAL:
Give me just a moment. Mr. Chief
Justice, and may it please the Court. The State humbly submits that enforcement of
17
Texas Penal Code Statute 21.06 does not violate the 14th
18
Amendment of the Constitution because this Court has never
19
recognized a fundamental right to engage in extramarital
20
sexual conduct and because there is a rational basis for
21
the statute sufficient to withstand equal protection
22
scrutiny. 23
I'd like to begin with a brief discussion of
24
substantive due process.
From a practitioner's
25
standpoint, it appears that the jurisprudence of this
26
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Court appears to resolve the means by which the Court
2
entertains a claim of novel protected liberty interests.
Since the Constitution does not expressly
3
4
address the issue of privacy or of sexual conduct, we look
5
to the Court's precedents and to the history of our
6
people.
If a historical, traditional analysis applies,
7
8
it then serves as objective guideposts to guide this
9
Court, as long as those ideals and laws do not infringe on
10
fundamental rights. The Court has maintained that designation of a
11
12
liberty interest is done -- not done with impunity.
13
only those interests that appear to be carefully
14
identified asserted rights should be drawn and should be
15
considered as liberty interests. The record in this case
16
does not particularly show which rights the petitioners
17
are asking to uphold.
QUESTION:
18
19
by that.
20
uphold? 21
But
I -- I don't understand what you mean
Aren't we clear what right they're seeking to
MR. ROSENTHAL:
No, sir, they're -- they're
22
asking for the right of homosexuals to engage in
23
homosexual conduct. 24
QUESTION:
Right. 25
MR. ROSENTHAL:
But there's nothing in the
27
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record to indicate that these people are homosexuals. 2
They're not homosexuals by definition if they commit one
3
act.
4
also violate this code if they commit an act of deviate
5
sexual intercourse with another of the same sex.
It's our position that a heterosexual person can
QUESTION:
6
Why aren't -- why aren't they seeking
7
to vindicate the right of either homosexuals or
8
heterosexuals to commit homosexual act?
9
does that make?
MR. ROSENTHAL:
10
What difference
The difference it makes is as
11
the -- as the record is set out, it does not really define
12
the issues such that the Court can actually give the
13
petitioners a -- a specific form of relief. QUESTION:
14
But the -- the -- the statute, Texas
15
has already decided that for us. It has called this
16
homosexual conduct, so whether it's a heterosexual person
17
or a homosexual person, the crime is engaging in
18
homosexual conduct. 19
MR. ROSENTHAL:
20
QUESTION:
That's correct. You don't even have to get to the --
21
as I understand it, you don't even have to get to the
22
characterization of homosexual.
23
defines certain acts committed by or together with
24
individuals of the same sex and that's your class, isn't
25
it? The statute clearly
28
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MR. ROSENTHAL:
2
QUESTION:
3
MR. ROSENTHAL:
Yes, it is. What more do we need? We're -- the class actually is
4
people who violate the act, not classes of individuals
5
based upon sexual orientation. QUESTION:
6
Well, I -- I can see that your point
7
may have some relevance on the equal protection side of
8
the equation, some relevance, I don't think it may be
9
controlling.
It -- it doesn't seem to meet the arguments
10
that's made under the substantive liberty part of the
11
argument with reference to Bowers.
12
MR. ROSENTHAL:
13
QUESTION:
I beg your pardon? It doesn't meet the petitioners'
14
argument with respect to Bowers versus Hardwick, which
15
they say should be overruled. MR. ROSENTHAL:
16
Well, of course we -- we believe
17
that Bowers versus Hardwick is -- is good law.
18
substantial law and that this Court should not overrule
19
Bowers --
20
QUESTION:
It's
But that question is certainly
21
clearly before us.
22
convicted the people for these acts and you have to be --
23
you have to defend it. 24
25
I mean this is your statute.
MR. ROSENTHAL:
Yes, sir.
You
And it's our position
that Bowers versus Hardwick is still good law, that
29
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there's nothing that's changed about the fundamental
2
liberties or the -- or the history or traditions of our
3
country that should make the analysis in Bowers incorrect
4
any longer. 5
The petitioner also claims that the mores of our
6
nation have changed to the point where physical homosexual
7
intimacy is now part of the fabric of American values. 8
And it's our position this cannot be correct.
9
infer that various States acting through their legislative
Even if you
10
process have repealed sodomy laws, there is no protected
11
right to engage in extrasexual -- extramarital sexual
12
relations, again, that can trace their roots to history or
13
the traditions of this nation.
14
QUESTION:
Their basic argument, I think --
15
QUESTION:
I -- I'm sorry. I didn't get that
16
argument.
17
responding to the argument that the morals haven't
18
changed, or that the morals have changed so that
19
homosexuality is now approved.
20
saying that there's no tradition?
21
that's a totally different argument from tradition.
22
mean, the -- the argument is tradition doesn't matter. 23
I thought you were going to say -- you were
MR. ROSENTHAL:
And you respond to that by
I mean, that's --
I
Well, history -- tradition does
24
not matter in terms of whether or not it -- it can be a
25
protected liberty interest. 30
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QUESTION:
Why -- why do you think that the
2
public perception of -- of homosexual acts has -- has not
3
changed?
Do you think it hasn't? 4
MR. ROSENTHAL:
5
QUESTION:
6
7
8
9
Yes, yes.
Do you think there's
public approval of it? MR. ROSENTHAL:
Of homosexuals, but not of
homosexuality activity.
QUESTION:
What do you base that on?
10
MR. ROSENTHAL:
11
QUESTION:
12
MR. ROSENTHAL:
13
QUESTION:
14
The public perception of it? I beg your pardon? What do you base that on? Well, even --
I mean I think there ought to be some
evidence which -- which you can bring forward? 15
MR. ROSENTHAL:
16
QUESTION:
Sure. Like perhaps the failure of the
17
Federal Congress to add the sexual preference to the list
18
of protected statuses against which private individuals
19
are not permitted to discriminate, that addition has been
20
sought several times and it's been rejected by the Federal
21
Congress, hasn't it? 22
MR. ROSENTHAL:
Yes, sir, and -- and in
23
addition, what I was trying to say by the fact that
24
various States have changed their position on sodomy,
25
they've done it through the legislative process.
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And
1
that's where we believe this belongs, is in the State
2
House of Texas, not this Court. 3
QUESTION:
Yes, but I thought you were
4
responding to the argument that the public perception
5
hasn't changed.
6
disapproval of homosexual acts. 7
8
9
That there still is -- is a public
And you can't establish that by saying that the
States have repealed their homosexual laws.
MR. ROSENTHAL:
Well, I think it goes back to
10
whether the -- where -- whether people in Texas and people
11
in the other States that had this law on their books
12
actually accepted through their representative government. 13
I think it comes down to the -- the actual people who --
14
who determine the consensus and mores of the State or
15
the -- or the elected legislators. 16
QUESTION:
Might there be a difference between
17
the people's willingness to prosecute something criminally
18
and the people's embracing of that as a fundamental right?
19
MR. ROSENTHAL:
Well, certainly.
And just
20
because someone has decriminalized sodomy doesn't mean
21
that they embraced that practice as something that ought
22
to be taught in the schools as was mentioned before.
23
QUESTION:
But the argument of -- of Bowers, to
24
overrule Bowers is not directly related to sodomy.
25
related, but not directly.
It's
It's that people in their own
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bedrooms, which have their right to do basically what they
2
want, it's not hurting other people.
3
other side -- says Bowers understated the importance of
4
that.
5
relationship of the sodomy to families and in addition,
6
Bowers has proved to be harmful to thousands and thousands
7
and thousands of people, if not because they're going to
8
be prosecuted, because they fear it -- they might be,
9
which makes it a possible instrument of repression in the
It got the history wrong.
And they -- the
It didn't understand the
10
hands of the prosecutors.
11
argument that they're making.
12
wrong in theory, understating the constitutional value.
13
MR. ROSENTHAL:
14
QUESTION:
15
16
Now, that's the kind of
Harmful in consequence,
All right --
All right, now how do you respond to
that? MR. ROSENTHAL:
Okay.
First of all, let me --
17
let me correct something that -- that's very minor at this
18
point, but the allegation was made in petitioners'
19
argument that people can -- convicted of homosexual
20
conduct are banned from jobs and housing and all -- and
21
all that kind of thing.
22
class C misdemeanor.
23
misdemeanor -- or the lowest prohibition that Texas has. 24
25
QUESTION:
In Texas, homosexual conduct is a
That is, it is the lowest
That I didn't bring in in my
question. 33
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MR. ROSENTHAL:
2
QUESTION:
Yes, sir. My question was, getting those sort
3
of three or four basic points, I would like to hear
4
your -- your straight answer to those points --
5
[Laughter.]
6
QUESTION:
-- because on their face, they're --
7
I mean, I'm not -- not a criticism, I mean, directly
8
responding, directly responding to the -- to the -- to the
9
question. MR. ROSENTHAL:
10
Well, it's our position that the
11
line should be drawn at the marital bedroom, through which
12
we can -- through the law enforcement or anyone else
13
cannot pass unless something illegal happens inside that
14
bedroom. QUESTION: Well, if this is drawing the line at
15
16
the bedroom door, this case is inside the bedroom, not
17
outside.
18
understanding, of it what takes place within the bedroom
19
through consent.
That's the statute makes criminal, to my
Am I right about that? 20
MR. ROSENTHAL:
21
QUESTION:
22
And why isn't that something that the
State has no business getting involved in --
23
MR. ROSENTHAL:
24
QUESTION:
25
You're right about that, but --
First of all, let me say --
-- as long as it doesn't hurt
anybody? 34
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MR. ROSENTHAL:
First of all, let me say that
2
consent may be alleged in this case, but consent is not
3
proven in the record in this case.
4
nothing in the record that shows that people are capable
5
of giving consent or that consent was, in fact, given, but
6
even given that, I -- I think that the -- that this Court
7
having determined that there are certain kinds of conduct
8
that it will accept and certain kinds of conduct it will
9
not accept may draw the line at the bedroom door of the
10
heterosexual married couple because of the interest that
11
this Court has that this Nation has and certainly that the
12
State of Texas has for the preservation of marriage,
13
families and the procreation of children. QUESTION:
14
There's -- there is
Does Texas permit same-sex
15
adoptions -- two women or two men to adopt a child or to
16
be foster parents? MR. ROSENTHAL:
17
18
19
I don't know the answer to that,
Justice. QUESTION:
Well, in portraying what Texas sees
20
as a family and distinguishing both married and unmarried
21
heterosexual people from homosexual people, those things
22
wouldn't go together if the State at the same time said
23
same sex couples are qualified to raise a family.
24
adopt children, you can be foster parents.
25
You can
You don't know what -- what the Texas law is on
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2
3
4
that? MR. ROSENTHAL:
I do not know what that Texas
law -- what the Texas law says in that regard. QUESTION:
I think it would be relevant to your
5
argument that they're making -- that Texas is making the
6
distinction between kinds of people who have family
7
relationships and can be proper guardians of children and
8
those who can't. 9
MR. ROSENTHAL:
Well, again, Your Honor, we're
10
not saying that they can't be proper guardians and we
11
can't say that they can't raise children.
12
not the issue.
13
That -- that's
The issue --
QUESTION:
You're fairly certain that they can't
14
procreate children, aren't you?
15
[Laughter.]
16
MR. ROSENTHAL:
We are sure that they -- that
17
they can't do that.
18
their -- their status.
19
particular activity that those unmarried couples may have
20
with respect to whether they have sexual intimacies. 21
22
23
QUESTION:
But we're also not -- not penalizing
We're penalizing only the
Does Texas prohibit sexual
intercourse between unmarried heterosexuals? MR. ROSENTHAL:
Well, it used to.
It does not
24
do that now, unless the sexual intimacy is in public or
25
where someone might view --
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2
3
4
QUESTION:
No, say in a -- a private situation
like this, it would not -- it would not be prohibited? MR. ROSENTHAL:
does not condone it. 5
QUESTION:
6
MR. ROSENTHAL:
7
QUESTION:
8
MR. ROSENTHAL:
9
It does not criminalize it, it
What about adultery? I beg your pardon? What about adultery? Again, adultery is not penalized
in Texas, but it is certainly not condoned in Texas.
10
[Laughter.]
11
QUESTION:
All right, so you said -- you said
12
procreation, marriage and children, those are your three
13
justifications.
14
see what it has to do with marriage, since, in fact,
15
marriage has nothing to do with the conduct that either
16
this or other statutes do or don't forbid.
17
what it has to do with children, since, in fact, the gay
18
people can certainly adopt children and they do.
19
don't see what it has to do with procreation, because
20
that's the same as the children. 21
Now from what you recently said, I don't
All right.
I don't see
And I
So -- so what is the justification
22
for this statute, other than, you know, it's not what they
23
say on the other side, is this is simply, I do not like
24
thee, Doctor Fell, the reason why I cannot tell.
25
[Laughter.]
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2
QUESTION:
Now, what is aside -- aside from
that? MR. ROSENTHAL:
3
I think what -- what I'm saying
4
is -- and I had not gotten into the equal protection
5
aspect of the -- of the argument yet, but under the equal
6
protection argument, Texas has the right to set moral
7
standards and can set bright line moral standards for its
8
people.
9
believe that they can say that certain kinds of activity
10
11
And in the setting of those moral standards, I
can exist and certain kinds of activity cannot exist. QUESTION:
Could they say, for example, it is
12
against the law at the dinner table to tell really serious
13
lies to your family? 14
15
16
MR. ROSENTHAL:
Yes, they can make that a law,
but there would be no rational basis for the law.
QUESTION:
Oh, really.
It's very immoral.
I
17
mean, I know there's certainly -- it's certainly immoral
18
to tell very serious harmful lies to your own family under
19
certain circumstances and around the dinner table, some of
20
the worst things can happen.
21
[Laughter.]
22
But the -- the -- so Texas could go right in
23
there and any kind of morality that they think is just
24
immoral or bad, cheating, perhaps.
25
serious rudeness, et cetera? What about rudeness,
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MR. ROSENTHAL:
Well, again, if -- if Texas did
2
pass the law, it would have to -- have to show through
3
some rational basis test that it's rationally related to
4
some State interest.
QUESTION:
5
Mr. Rosenthal, don't you think that
6
what laws a State may constitutionally pass has a lot to
7
do with what laws it has always been thought that a State
8
can constitutionally pass, so that if you have a 200-year
9
tradition of a certain type of law -- and I don't know of
10
a 200-year tradition of laws against lying at the dinner
11
table -- the presumption is that the State is within the
12
bounds of -- of the Constitution to pass that law in -- as
13
declaring what it has proscribed as contra bonos mores, a
14
term that's been in the common law from the beginning as
15
against good morals, bigamy, adultery, all sorts of things
16
like that, and isn't that determined pretty much on the
17
basis of what kind of laws the State has traditionally
18
been allowed to pass? MR. ROSENTHAL:
19
20
Certainly.
And it goes -- it
goes to things as diverse as --
QUESTION:
21
I don't suppose you're going to argue
22
that Loving against Virginia was incorrectly decided, are
23
you? 24
MR. ROSENTHAL:
25
QUESTION:
Oh, certainly not. And that was certainly a long
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2
3
tradition that supported that --
MR. ROSENTHAL:
But it also violated a
fundamental right.
4
QUESTION:
And that's the issue here.
5
[Laughter.] 6
MR. ROSENTHAL:
Yes, sir.
And the fundamental
7
right that was asserted there is -- is a long-established
8
fundamental right that we don't -- we don't treat races
9
differently because we think that one's inferior or we
10
11
stereotype someone --
QUESTION:
There was a constitutional text
12
there, wasn't there, with Loving versus Virginia.
13
thought there was something about a Civil War and no
14
discrimination on the basis of race. 15
16
17
I
MR. ROSENTHAL: Yes, and the same with -- with
the case that was cited from Florida. QUESTION:
When -- when did Texas select
18
homosexual sodomy as -- as a subject of specific criminal
19
prohibition? 20
MR. ROSENTHAL:
21
QUESTION:
22
MR. ROSENTHAL:
23
QUESTION:
24
MR. ROSENTHAL:
25
QUESTION:
Sodomy as a -- as a --
My question --
Yes, sir.
Go ahead, but my question is --
Yes, sir. -- is about sodomy among two adults
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2
of the same sex? MR. ROSENTHAL:
Yes, sir.
And sodomy had -- has
3
a longstanding tradition of the history of Texas of sodomy
4
being against the law, however --
5
QUESTION:
When -- when was -- was the first
6
statute passed?
7
there a law in the books in 1803? 8
MR. ROSENTHAL:
9
I think 200 years was mentioned.
No, I don't think Texas was a
State back then.
10
[Laughter.]
11
QUESTION:
12
Was
It doesn't have to be -- it doesn't
have to --
13
QUESTION:
Territorial --
14
QUESTION:
It's a trick question, Mr. Rosenthal. 15
Don't -- don't fall into that trap.
16
[Laughter.]
17
QUESTION:
1803 or the first date of the Texas
18
legislature's meeting, did they pass it at the -- at the
19
first meeting of the legislature? 20
MR. ROSENTHAL:
Well, certainly in the -- in the
21
1854 Penal Code, the -- the kinds of activity that -- that
22
were classified now as sodomy were against the law. 23
However, I think to address your question --
24
25
QUESTION:
When did -- when did they single out
homosexual sodomy?
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2
MR. ROSENTHAL:
In 1973, in the passage of the
1974 Penal Code. QUESTION:
3
So the issue here doesn't have much
4
of a longstanding tradition specific to this statute, does
5
it? 6
MR. ROSENTHAL:
Well, not specific to -- not
7
specific to that statute, but it has a longstanding
8
tradition in Texas as being something that should be
9
proscribed and something that is regarded as immoral and
10
unwholesome. 11
QUESTION:
12
in Texas from when?
13
just to that.
14
homosexual -- but homosexual sodomy included, and that law
15
goes back how long?
16
Well, homosexual sodomy was unlawful
There was not a statute addressed
It was addressed to sodomy in general, but
To 1803? MR. ROSENTHAL:
To the -- to the time that Texas
17
was a republic, before it --
18
QUESTION:
But what about the statute which this
19
Court I think once had to grapple with, people felt during
20
World War I that it was immoral to teach German in the
21
public schools.
22
every right to do that, parents want their children to
23
learn German, but the schools forbid it?
24
question here is can the State, in fact, pass anything
25
that it wants at all, because they believe it's immoral. So then would you say that the State has
See, the hard
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If you were going to draw the line somewhere, I guess you
2
might begin to draw it when the person is involved inside
3
his own bedroom and not hurting anybody else.
4
that now -- so you say it's morality.
5
people do believe that that's a question of morality. 6
Many do not, but nonetheless, what can you add to what
7
you're saying, other than simply asserting its morality? 8
Because I don't think you think that the State could pass
9
anything in the name of morality? 10
MR. ROSENTHAL:
Now that --
I -- I agree many
Certainly not.
But it would
11
have -- any law that would pass would have to have some
12
rational basis to the State interest. QUESTION:
13
14
You've not given a rational basis
except to repeat the word morality. QUESTION: Is the rational basis is that the
15
16
State thinks it immoral just as the State thinks adultery
17
immoral or bigamy immoral.
18
QUESTION:
Or teaching German.
19
QUESTION:
Well, that --
20
[Laughter.] 21
QUESTION:
Maybe we should go through counsel,
QUESTION:
Isn't the -- Mr. Rosenthal, isn't the
22
23
yes. 24
thrust of Justice Breyer's question that when -- when the
25
State criminalizes behavior as immoral, customarily what
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it points to is not simply an isolated moral judgment or
2
the moral judgment alone, but it points to a moral
3
judgment which is backed up by some demonstration of harm
4
to other people. We -- we've heard questions for example about
5
6
harm to a -- a marital institution.
It makes sense to say
7
whether you think the law is enforceable or not.
8
sense to say that adultery threatens the -- the durability
9
of a particular instance of marriage. It makes
What kind of harm to others can you point to in
10
11
this case to take it out of the category of simple moral
12
disapproval, per se? MR. ROSENTHAL:
13
Well, part of the -- part of the
14
rationale for the law is to discourage similar conduct,
15
that is, to discourage people who may be in jail together
16
or want to experiment from doing the same kind of thing
17
and I think -- and I think that the State can do that. 18
People can harm themselves and still be -- and still have
19
it be against the law.
20
that. 21
QUESTION:
But they can take drugs and do
Well, do you point to a kind of harm
22
here to an individual or to the individual's partner,
23
which is comparable to the harm that results from the --
24
the harm to the deterioration of the body and the mind
25
from drug-taking?
I mean, I don't see the parallel
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between the two situations. MR. ROSENTHAL:
2
Well, not -- not only do we say
3
that morality is a basis for this, but of course the
4
antecedents have raised that there may also be health
5
considerations.
QUESTION:
6
7
I don't know whether there are or not. That is not the State's claim in any
case?
8
MR. ROSENTHAL:
9
but I can't say that it's not true.
10
That's not the State's claim,
Obviously this --
this has --
QUESTION:
11
Did you read -- I don't know -- I
12
can't remember now who filed it, but there was one medical
13
brief filed on that subject and the argument there was
14
that, in fact, these laws are -- are directly antithetical
15
to health claim. Do you -- do you have any comment to
16
make on that brief? MR. ROSENTHAL:
17
Yes, sir.
There was a law filed
18
on behalf of the respondents that took exactly the
19
opposite position. 20
QUESTION:
So the issue was open, so far as --
21
as we're concerned that that would be your position, I
22
take it? 23
24
25
MR. ROSENTHAL:
Yes, sir, for each expert
there's an equal and opposite expert. QUESTION:
But you're not saying the State of
45
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Texas is doing this for -- to protect the actors who are
2
involved in this?
3
to see that people don't harm others or themselves. 4
You're not suggesting that that's the reason for -- for
5
this particular law? One can say the State is taking action
6
MR. ROSENTHAL:
7
right to prohibit certain conduct.
8
9
QUESTION:
Well, I think Texas has the
But if that's the reason for it, why
doesn't Texas prohibit the conduct in a heterosexual
10
relationship?
11
because if there were a harm, beyond moral disapproval,
12
the law would not be restricted to homosexuals. 13
I mean, it doesn't seem to be any harm
MR. ROSENTHAL:
Well, because heterosexual
14
conduct is -- the same kinds of conduct -- and by the way
15
it's not distinguished, it's still called deviate sexual
16
intercourse with heterosexuals. 17
QUESTION:
18
MR. ROSENTHAL:
19
QUESTION:
20
MR. ROSENTHAL:
21
and to procreation.
22
State interest. 23
QUESTION:
But it's not prohibited? But it's not prohibited. Yeah. But it also can lead to marriage
And that's -- and that's a legitimate
But -- but procreation -- many people
24
with the blessings of Texas can have sexual relations who
25
are unable to procreate, so I don't see how -- whatever
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the line might have meant in times gone, it certainly
2
isn't true that sexual relations are for the purpose of
3
procreation and anything that is not for that purpose is
4
beyond the pale. 5
You can't make that distinction.
6
MR. ROSENTHAL:
No, but I think as a matter of
7
public policy, the State can make -- have -- can have
8
preferences -- and again it doesn't say that simply
9
because heterosexual people can -- can have deviate sexual
10
intercourse, the State approves it.
11
other sanctions that the -- that the State may imply. 12
There are just simply
I did want to briefly distinguish this case from
13
your decision in Romer v. Evans.
And obviously the
14
distinction there was -- was that the Colorado amendment
15
sought to classify people based on their orientation and
16
not their conduct.
17
certain class of people from the political debate.
18
on the contrary, Texas welcomes all into the political
19
debate and -- in the last Texas legislature, fortunately
20
our legislature meets only every other year, but in the
21
last Texas legislature, there was a hate crime statute
22
passed which made it a more heinous crime to make someone
23
a victim of crime based upon their sexual orientation and
24
it included all sexual orientations.
25
homosexuals, bisexuals and heterosexuals, all, so I don't
And by so doing, they excluded a
Now,
It included
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think we can say across the board that there's some sort
2
of Texas policy that we're trying to overall discriminate
3
against -- against homosexuals as a group. QUESTION:
4
Somebody wants to participate in the
5
political process, run for political office who is
6
homosexual and the charge is made on the other side don't
7
-- don't vote for this person, this person is a law
8
breaker, there is a closer connection to Romer in that
9
regard, isn't there? MR. ROSENTHAL:
10
Well, that would be true, if it
11
weren't that the historical fact that that's not in fact
12
true.
13
Texas and have admitted their homosexuality and have been
14
elected to office. 15
16
17
That there have been people who have campaigned in
QUESTION: But the charge -- they could be
charged as law-breakers. MR. ROSENTHAL:
No, ma'am, they can't be charged
18
as law-breakers for having that orientation.
19
only be charged as law-breakers if they commit that
20
particular act.
21
any disabilities to come from class C misdemeanor acts. 22
They can
And then, again, the State does not allow
I'm sure it's obvious to this Court that the
23
issues of homosexual rights are highly emotional for the
24
petitioner in these quarters but equally anxious in this
25
Court's -- for this Court's decision are those who are,
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number one, concerned with the rights of States to
2
determine their own destiny, and, two, and possibly more
3
important, those persons who are concerned that the
4
invalidation of this little Texas statute would make --
5
would make marriage law subject to constitutional
6
challenge. 7
Then again, how far behind that can there be
8
other acts of sexual gratification brought for
9
constitutional challenge also.
There's already movements
10
to lower the age limit of consent for children engaged in
11
sexual practices.
12
particularly in Texas law, where we are a common law state
13
and the common law is based upon community property shared
14
by both spouses.
15
to be mindful of the far-reaching aspects of your decision
16
in this case, so as not to disenfranchise 23 million
17
Texans who ought to have the right to participate in
18
questions having to do with moral issues.
19
affirm the Texas Court of Appeals. 20
21
22
And there are secondary effects,
The State of Texas is asking this Court
CHIEF JUSTICE REHNQUIST:
We ask you to
Thank you, Mr.
Rosenthal. Mr. Smith, you have 4 minutes remaining. 23
REBUTTAL ARGUMENT OF PAUL M. SMITH 24
ON BEHALF OF THE PETITIONERS
25
MR. SMITH:
Thank you, Mr. Chief Justice.
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I
1
just have a couple of points to make.
2
address this question of what it was that we proved in the
3
record below and whether or not we have, as a result,
4
adequately teed up the issues before the Court without
5
having put into evidence directly that this was a
6
noncoercive act or a noncommercial act or a nonpublic act
7
or things of that kind. 8
9
I thought I might
Our position is that this is a criminal statute
that has only two elements, it has a list of particular
10
kinds of sexual intimacy that you're not allowed to engage
11
in and it they have to prove as well that the two people
12
involved were of the same sex. 13
There was a complaint that was filed that listed
14
those two elements.
15
those two elements but said that there is an insufficient
16
basis for imposing criminal liability on them, because,
17
first of all, they invade fundamental rights and second of
18
all, because the law is discriminatory, while it's
19
supposedly got a moral basis, it's a discriminatory
20
morality, a morality imposed only on one category of
21
couples in a State which does not penalize in any way
22
adultery, fornication or sodomy for people of -- of
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couples that are different sex. 24
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My clients pleaded no contest to
Those are the arguments that were made and -- so
our position is that that the statute is unconstitutional
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Alderson Reporting Company
1111 14th St., NW 4th Floor Washington, DC 20005
1
both facially and as applied here, because the State
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purports to impose liability based on those two elements
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alone and that they are constitutionally insufficient
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bases both for fundamental rights reasons and because it's
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a discriminatory state.
The other point I thought I might just address
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for the moment is the public health rationale which didn't
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come up before.
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think this comes out to a large extent, it's undisputed in
Essentially, what the facts are -- and I
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the amicus briefing -- the issue is not briefed in here
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because the Texas brief doesn't even attempt to make this
12
argument, but it is -- the facts are that if this was the
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line between safe and unsafe forms of sexual intimacy it's
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as if the law cuts right across it.
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the most safe forms of sexual activity possible,
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including, for example, lots of safe sex -- same-sex
17
activity involving women and leaving completely
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unregulated all sorts of forms of unsafe sexual activity
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involving different sex couples. Regulating some of
So if there was ever a case of a law where the
20
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fit is egregiously improper and insufficient to justify
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the law under the rational basis test, this would be such
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a case. 24
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Unless the Court has further questions, thank
you very much.
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Alderson Reporting Company
1111 14th St., NW 4th Floor Washington, DC 20005
1
2
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CHIEF JUSTICE REHNQUIST:
Thank you Mr. Smith.
The case is submitted. (Whereupon, at 12:06 p.m., the case in the
above-entitled matter was submitted.)
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Alderson Reporting Company
1111 14th St., NW 4th Floor Washington, DC 20005
Litigators Making a Difference
Windsor v. United States:
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
12-2335-cv(L)
Windsor v. United States
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: September 27, 2012
Decided: October 18, 2012)
Docket No. 12-2335-cv(L); 12-2435(Con)
- - - - - - - - - - - - - - - - - - - -x
EDITH SCHLAIN WINDSOR, IN HER OFFICIAL CAPACITY AS EXECUTOR
OF THE ESTATE OF THEA CLARA SPYER,
Plaintiff-Appellee,
- v.UNITED STATES OF AMERICA,
Defendant-Appellant,
and
BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE
OF REPRESENTATIVES,
Intervenor-Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - -x
Before:
JACOBS, Chief Judge, STRAUB and DRONEY,
Circuit Judges.
Intervenor Bipartisan Legal Advisory Group of the
39
United States House of Representatives appeals from an order
40
of the United States District Court for the Southern
41
District of New York granting summary judgment in favor of
1
the surviving spouse of a same-sex couple who was denied the
2
benefit of the spousal deduction under federal tax law.
3
United States, the defendant, is a nominal appellant.
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the following reasons, we conclude that Section 3 of the
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Defense of Marriage Act violates equal protection and is
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therefore unconstitutional.
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The
For
Judge STRAUB dissents in part and concurs in part in a
separate opinion.
STUART F. DELERY, Acting
Assistant Attorney General,
United States Department of
Justice, Washington, DC (Michael
Jay Singer, August E. Flentje,
on the brief), for DefendantAppellant.
PAUL D. CLEMENT, Bancroft PLLC,
Washington, DC (H. Christopher
Bartolomucci, Conor B. Dugan,
and Nicholas J. Nelson, on the
brief; Kerry W. Kircher, William
Pittard, Christine Davenport,
Todd B. Tatelman, Mary Beth
Walker, Office of General
Counsel, United States House of
Representatives, Washington, DC,
of counsel), for IntervenorDefendant-Appellant.
ROBERTA A. KAPLAN, Paul, Weiss,
Rifkind, Wharton & Garrison LLP,
New York, NY (Andrew J. Ehrlich,
Jaren Janghorbani, Paul, Weiss,
Rifkind, Wharton & Garrison LLP,
New York, NY, James D. Esseks
and Rose A. Saxe, American Civil
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Liberties Union, New York, NY,
and Melissa Goodman, Arthur
Eisenberg, and Mariko Hirose,
New York Civil Liberties Union
Foundation, New York, NY, on the
brief), for Appellee.
Vincent P. McCarthy, Litchfield,
CT, for amicus curiae American
College of Pediatricians in
support of Intervenor-DefendantAppellant.
Joseph A. Campbell, Alliance
Defending Freedom, Scottsdale,
AZ, for amicus curiae Frederick
Douglas Foundation in support of
Intervenor-Defendant-Appellant.
Cecilia Noland-Heil, American
Center for Law & Justice,
Virginia Beach, VA (Erik
Zimmerman, Jay Alan Sekulow and
Stuart J. Roth, American Center
for Law & Justice, Virginia
Beach, VA and Washington, DC, on
the brief), for amici curiae
Former Attorneys General Edwin
Meese III and John Ashcroft in
support of Intervenor-DefendantAppellant.
Gregory F. Zoeller, Attorney
General, State of Indiana,
Indianapolis, IN (Thomas M.
Fisher, Solicitor General, Ellen
H. Meilaender, Deputy Attorney
General, on the brief), for
amici curiae States of Indiana,
Alabama, Alaska, Arizona,
Colorado, Georgia, Idaho,
Kansas, Michigan, Nebraska,
Oklahoma, South Carolina, South
Dakota and Virginia in support
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of Intervenor-DefendantAppellant.
Joshua K. Baker, National
Organization for Marriage,
Washington, DC (William C.
Duncan, Marriage Law Foundation,
Lehi, UT, on the brief), for
amicus curiae National
Organization for Marriage in
support of Intervenor-DefendantAppellant.
Steven W. Fitschen, The National
Legal Foundation, Virginia
Beach, VA, for amicus curiae
Concerned Women for America in
support of Intervenor-DefendantAppellant.
William F. Sheehan, Goodwin
Procter LLP, Washington, DC
(Andrew S. Hudson, Goodwin
Procter LLP, Washington, DC and
Nathalie F.P. Gilfoyle, American
Psychological Association,
Washington, DC, on the brief),
for amici curiae the American
Psychological Association, the
American Academy of Pediatrics,
the American Psychiatric
Association, the American
Psychoanalytic Association, the
National Association of Social
Workers and its New York City
and State Chapters, and the New
York State Psychological
Association in support of
Plaintiff-Appellee.
Susan L. Sommer, Lambda Legal
Defense & Education Fund, Inc.,
New York, NY (Timothy S. Fischer
and Brian P. Rice, McCarter &
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English, LLP, Hartford, CT and
Shannon P. Minter and
Christopher F. Stoll, National
Center for Lesbian Rights, San
Francisco, CA, on the brief),
for amici curiae Bar
Associations and Public Interest
and Legal Service Organizations
in Support of PlaintiffAppellee.
Matthew F. Damm, O’Melveny &
Myers LLP, New York, NY (Dawn
Sestito, Demitri D. Portnoi, and
Amy R. Lucas, O’Melveny & Myers
LLP, Los Angeles, CA and New
York, NY, on the brief), for
amici curiae Family Law
Professors in Support of
Plaintiff-Appellee.
Michael A. Cardozo, Corporation
Counsel of the City of New York,
New York, NY (Francis F. Caputo,
Susan Paulson, on the brief),
for amici curiae the City of New
York, the Council of the City of
New York, Michael R. Bloomberg,
in His Official Capacity as
Mayor of the City of New York,
and Christine C. Quinn, in Her
Official Capacity as Speaker of
the Council of the City of New
York in Support of PlaintiffAppellee.
Mark Wolinsky, Wachtell, Lipton,
Rosen & Katz, New York, NY
(Jonathan M. Moses, Kevin S.
Schwartz, Luke M. Appling, on
the brief), for amicus curiae
the Partnership for New York
City in Support of PlaintiffAppellee.
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Suzanne B. Goldberg, Columbia
Law School, New York, NY, for
amicus curiae Columbia Law
School Sexuality & Gender Law
Clinic in Support of PlaintiffAppellee.
Catherine R. Connors, Pierce
Atwood LLP, Portland, ME, for
amici curiae Historians in
Support of Plaintiff-Appellee.
Miriam R. Nemetz, Mayer Brown
LLP, Washington, DC (Kathleen
Connery Dawe and Michael B.
Kimberly, Mayer Brown LLP,
Washington, DC, and Heather C.
Sawyer, Committee on the
Judiciary, John Conyers, Jr.,
and Jerrold Nadler, Ranking
Members, Washington, DC), for
amici curiae Members of the U.S.
House of Representatives, in
Support of Plaintiff-Appellee.
Nicole G. Berner, Washington, DC
(James B. Coppess, AFL-CIO,
Washington, DC, Patrick
Szymanski, Change to Win,
Washington, DC, and Alice
O’Brien, National Education
Association, Washington, DC, on
the brief), for amici curiae
American Federation of Labor and
Congress of Industrial
Organizations, Change to Win,
and National Education
Association in support of
Plaintiff-Appellee.
Joseph F. Tringali, Simpson
Thacher & Bartlett LLP, New
York, NY (Alexandra C. Pitney
and Nicholas S. Davis, on the
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brief), for amici curiae Service
and Advocacy for Gay, Lesbian,
Bisexual and Transgender Elders
(SAGE), National Senior Citizens
Law Center and American Society
on Aging in support of
Plaintiff-Appellee.
Debo P. Adegbile, NAACP Legal
Defense & Education Fund, Inc.,
New York, NY (Elice C. Boddie,
Rachel M. Kleinman, Ria A.
Tabacco, Joshua Civin, NAACP
Legal Defense & Education Fund,
Inc., New York, NY, and
Washington, DC), for amicus
curiae NAACP Legal Defense &
Education Fund, Inc., in support
of Plaintiff-Appellee.
Harvey J. Wolkoff, Ropes & Gray
LLP, New York, NY (Stuart W.
Yothers and Samuel P. Bickett,
Ropes & Gray LLP, New York, NY
and Steven M. Freeman and Seth
M. Marnin, Anti-Defamation
League, New York, NY, on the
brief), for amici curiae AntiDefamation League, Central
Conference of American Rabbis,
Congregation Beit Simchat Torah,
Bend the Arc: A Jewish
Partnership for Justice,
Hadassah: the Women’s Zionist
Organization of America, the
Hindu American Foundation,
Interfaith Alliance Foundation,
Japanese Citizens League, the
Justice and Witness Ministries:
United Church of Christ,
National Counsel of Jewish
Women, People for the American
Way Foundation, Union for Reform
Judaism, Women’s League for
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Conservative Judaism, and Women
of Reform Judaism in support of
Plaintiff-Appellee.
Sharon L. Nelles, Sullivan &
Cromwell LLP, New York, NY (H.
Rodgin Cohen, Mitchell S. Eitel,
William H. Wagener, Heather H.
Volik, Diana G. Iskelov,
Sullivan & Cromwell LLP, New
York, NY and Laura W. Brill and
Meaghan Field, Kendall Brill &
Klieger LLP, Los Angeles, CA, on
the brief), for amici curiae
Professors of Family and Child
Welfare Law in support of
Plaintiff-Appellee.
Eric T. Schneiderman, Attorney
General, State of New York, New
York, NY (William H. Sorrell,
Attorney General, State of
Vermont, Montpelier, VT and
George Jepsen, Attorney General,
State of Connecticut, Hartford,
CT, on the brief) for amici
curiae States of New York,
Vermont, and Connecticut in
support of neither party.
Melanie Sloan, Citizens for
Responsibility and Ethics in
Washington, Washington, DC,
(Anne L. Weismann, Citizens for
Responsibility and Ethics in
Washington, Washington, DC and
Alan B. Morrison, George
Washington Law School,
Washington, DC, on the brief),
for amicus curiae Citizens for
Responsibility and Ethics in
Washington in support of neither
party.
8
1
DENNIS JACOBS, Chief Judge:
2
Plaintiff Edith Windsor sued as surviving spouse of a
3
same-sex couple that was married in Canada in 2007 and was
4
resident in New York at the time of her spouse’s death in
5
2009.
6
deduction for federal estate taxes under 26 U.S.C. § 2056(A)
7
solely because Section 3 of the Defense of Marriage Act
8
(“DOMA”), 1 U.S.C. § 7, defines the words “marriage” and
9
“spouse” in federal law in a way that bars the Internal
Windsor was denied the benefit of the spousal
10
Revenue Service from recognizing Windsor as a spouse or the
11
couple as married.
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18
The text of § 3 is as follows:
In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the
various administrative bureaus and agencies of the
United States, the word “marriage” means only a legal
union between one man and one woman as husband and
wife, the word “spouse” refers only to a person of the
opposite sex who is a husband or a wife.
19
1 U.S.C. § 7.
20
the amount of $363,053, which turns on the constitutionality
21
of that section of federal law.
At issue is Windsor’s claim for a refund in
22
For the reasons that follow we hold that:
23
I.
Windsor has standing in this action because we
24
predict that New York, which did not permit same-sex
25
marriage to be licensed until 2011, would nevertheless have
9
1
recognized Windsor and Thea Clara Spyer as married at the
2
time of Spyer’s death in 2009, so that Windsor was a
3
surviving spouse under New York law.
4
II.
Windsor’s suit is not foreclosed by Baker v.
5
Nelson, 409 U.S. 810 (1971), which held that the use of the
6
traditional definition of marriage for a state’s own
7
regulation of marriage status did not violate equal
8
protection.
9
III.
Section 3 of DOMA is subject to intermediate
10
scrutiny under the factors enumerated in City of Cleburn v.
11
Cleburn Living Center, 473 U.S. 431 (1985), and other cases.
12
IV.
The statute does not withstand that review.
13
14
* * *
On June 6, 2012, the United States District Court for
15
the Southern District of New York (Jones, J.) granted
16
summary judgment in favor of Windsor in a thorough opinion.
17
Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y.
18
2012).
19
equal protection because there was no rational basis to
20
support it.
21
grant of summary judgment de novo, construing the record in
22
the light most favorable to the nonmoving party.”
The court ruled that Section 3 of DOMA violated the
Id. at 406.
“We review a district court's
10
Church of
1
American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197,
2
203 (2d Cir. 2004).
3
A preliminary issue concerning alignment of the parties
4
on appeal has been presented by motion.
5
initially named as the sole defendant, conducted its defense
6
of the statute in the district court up to a point.
7
February 23, 2011, three months after suit was filed, the
8
Department of Justice declined to defend the Act thereafter,
9
and members of Congress took steps to support it.
The United States,
On
The
10
Bipartisan Legal Advisory Group of the United States House
11
of Representatives (“BLAG”) retained counsel and since then
12
has taken the laboring oar in defense of the statute.
13
United States remained active as a party, switching sides to
14
advocate that the statute be ruled unconstitutional.
15
The
Following the district court’s decision, BLAG filed a
16
notice of appeal, as did the United States in its role as
17
nominal defendant.
18
strike the notice of appeal filed by the United States and
19
to realign the appellate parties to reflect that the United
20
States prevailed in the result it advocated in the district
21
court.
22
withdrawal of its advocacy, the United States continues to
BLAG moved this Court at the outset to
The motion is denied.
Notwithstanding the
11
1
enforce Section 3 of DOMA, which is indeed why Windsor does
2
not have her money.
3
will have a considerable impact on many operations of the
4
United States.
5
(“When an agency of the United States is a party to a case
6
in which the Act of Congress it administers is held
7
unconstitutional, it is an aggrieved party for purposes of
8
taking an appeal . . . . The agency’s status as an aggrieved
9
party . . . is not altered by the fact that the Executive
The constitutionality of the statute
See INS v. Chadha, 462 U.S. 919, 931 (1983)
10
may agree with the holding that the statute in question is
11
unconstitutional.”).
12
13
DISCUSSION
14
I
15
For the purpose of federal estate taxes, the law of the
16
state of domicile ordinarily determines whether two persons
17
were married at the time of death.
18
T.C. 1049, 1051, 1053-54 (1953); Rev. Rul. 58-66, 1958-1
19
C.B. 60 (“The marital status of individuals as determined
20
under state law is recognized in the administration of the
21
Federal income tax laws.”).
22
2009, New York did not yet license same-sex marriage itself.
Eccles v. Comm’r, 19
At the time of Spyer’s death in
12
1
A separate question–-decisive for standing in this case–-is
2
whether in 2009 New York recognized same-sex marriages
3
entered into in other jurisdictions.
4
presented to the New York Court of Appeals in Godfrey v.
5
Spano, 13 N.Y.3d 358 (2009).
6
resolve that case on other grounds, finding “it unnecessary
7
to reach defendants' argument that New York's common-law
8
marriage recognition rule is a proper basis for the
9
challenged recognition of out-of-state same-sex marriages.”
10
11
That question was
However, the court was able to
Id. at 377.
When we are faced with a question of New York law that
12
is decisive but unsettled, we may “predict” what the state’s
13
law is, consulting any rulings of its intermediate appellate
14
courts and trial courts, or we may certify the question to
15
the New York Court of Appeals.
16
Ins. Co. v. Madella, 372 F.3d 500, 505 (2d Cir. 2004).
17
urges that we certify this question, observing that this is
18
an option that we have and that the district court did not.
19
We decline to certify.
20
See State Farm Mut. Auto.
First, the Court of Appeals has signaled its
21
disinclination to decide this very question.
22
elected to decide Godfrey on an alternative sufficient
13
When it
BLAG
1
ground, the Court of Appeals expressed a preference and
2
expectation that the issue would be decided by the New York
3
legislature: “[w]e . . . hope that the Legislature will
4
address this controversy.”
5
hesitate to serve up to the Court of Appeals a question that
6
it is reluctant to answer for a prudential reason.
7
Godfrey, 13 N.Y.3d at 377.
We
Second, rulings of New York’s intermediate appellate
8
courts are useful and unanimous on this issue.
9
“well-established principle that the ruling of an
10
intermediate appellate state court is a datum for
11
ascertaining state law which is not to be disregarded by a
12
federal court unless it is convinced by other persuasive
13
data that the highest court of the state would decide
14
otherwise.”
15
Comm'n, 198 F.3d 317, 321 (2d Cir. 1999) (internal quotation
16
marks and ellipsis omitted).
17
appellate divisions have concluded that New York recognized
18
foreign same-sex marriages before the state passed its
19
marriage statute in 2011.
20
A.D.3d 566 (1st Dep't 2011) (Windsor’s home Department,
21
recognizing a 2008 Canadian marriage); Lewis v. N.Y. State
22
Dep't of Civil Serv., 872 N.Y.S.2d 578 (3rd Dep’t 2009),
It is a
Statharos v. New York City Taxi and Limousine
Three of New York’s four
See In re Estate of Ranftle, 81
14
1
aff'd on other grounds sub nom. Godfrey, 13 N.Y.3d 358;
2
Martinez v. Cnty. of Monroe, 850 N.Y.S.2d 740 (4th Dep’t
3
2008).
4
before Spyer died on February 5, 2009.
5
view of these decisions, we see no need to seek guidance
6
here.
7
under New York law at the time of Spyer’s death, she has
8
standing.
Two of these cases, Lewis and Martinez, were decided
Given the consistent
Because Windsor’s marriage would have been recognized
9
10
11
II
In
Baker v. Nelson, an appeal from a Minnesota Supreme
12
Court decision finding no right to same-sex marriage, the
13
Supreme Court issued a summary dismissal “for want of a
14
substantial federal question.”
15
Minnesota Supreme Court had held that “[t]he equal
16
protection clause of the Fourteenth Amendment, like the due
17
process clause, is not offended by the state's
18
classification of persons authorized to marry.”
19
Nelson, 291 Minn. 310, 313 (Minn. 1971).
20
Baker compels the inference that Congress may prohibit same-
21
sex marriage in the same way under federal law without
22
offending the Equal Protection Clause.
15
409 U.S. 810 (1971).
The
Baker v.
According to BLAG,
We disagree.
1
“The Supreme Court has long recognized that the
2
precedential value of a summary dismissal is limited to ‘the
3
precise issues presented and necessarily decided by’ the
4
dismissal.”
5
Cir. 2010) (quoting Mandell v. Bradley, 432 U.S. 173, 176
6
(1977)).
7
constitutionally define marriage as it does in Section 3 of
8
DOMA is sufficiently distinct from the question in Baker:
9
whether same-sex marriage may be constitutionally restricted
Alexander v. Cahill, 598 F.3d 79, 89 n.7 (2d
The question whether the federal government may
10
by the states.
11
married in this case, at least in the eye of New York, where
12
they lived.
13
does not control equal protection review of DOMA for these
14
reasons.1
After all, Windsor and Spyer were actually
Other courts have likewise concluded that Baker
1
See Massachusetts v. U.S. Dep’t of HHS, 682 F.3d 1, 8
(1st Cir. 2012) (finding that Baker permitted equal
protection review so long as arguments did not “rest on a
constitutional right to same-sex marriage”); Windsor, 833 F.
Supp. 2d at 399-400 (“The case before the Court does not
present the same issue as that presented in
Baker. . . . Accordingly, after comparing the issues in
Baker and those in the instant case, the Court does not
believe that Baker ‘necessarily decided’ the question of
whether DOMA violates the Fifth Amendment's Equal Protection
Clause.”); Pedersen v. Office of Pers. Mmgmt., No.
3:10-cv-1750, 2012 WL 3113883, at *11 (D. Conn. July 31,
2012) (“DOMA impacts federal benefits and obligations, but
does not prohibit a state from authorizing or forbidding
same-sex marriage, as was the case in Baker.”); Golinski v.
U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5
16
1
Even if Baker might have had resonance for Windsor’s
2
case in 1971, it does not today.
3
courts had best adhere to the view that if the Court has
4
branded a question as unsubstantial, it remains so except
5
when doctrinal developments indicate otherwise.’”
6
Miranda, 422 U.S. 332, 344 (1975) (quoting Port Auth.
7
Bondholders Protective Comm. v. Port of N.Y. Auth., 387 F.2d
8
259, 263 n.3 (2d Cir. 1967) (Friendly, J.)) (emphasis
9
added).
“‘[I]nferior federal
Hicks v.
In the forty years after Baker, there have been
10
manifold changes to the Supreme Court’s equal protection
11
jurisprudence.
12
When Baker was decided in 1971, “intermediate scrutiny”
13
was not yet in the Court’s vernacular.
14
429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting)
15
(coining “intermediate level scrutiny”).
See Craig v. Boren,
Classifications
(N.D. Cal. 2012) (“The failure of the federal government to
recognize Ms. Golinski's marriage and to provide benefits
does not alter the fact that she is married under state
law.”); Dragovich v. U.S. Dept. of Treasury, No. 4:10-cv01564-CW, 2012 WL 1909603, at *6-7 (N.D. Cal. May 24, 2012);
Smelt v. Cnty of Orange, 374 F. Supp. 2d. 861, 872-74 (C.D.
Cal. 2005), vacated in part on other grounds, 447 F.3d 673
(9th Cir. 2006); In re Kandu, 315 B.R. 123, 135-38 (Bankr.
W.D. Wash. 2004); see also Perry v. Brown, 671 F.3d 1052,
1082 n. 14 (9th Cir. 2012) (finding that Baker did not
preempt consideration of Proposition 8 case, because “the
question of the constitutionality of a state's ban on
same-sex marriage” was not before the court) (emphasis
added).
17
1
based on illegitimacy and sex were not yet deemed quasi-
2
suspect.
3
(1982) (applying intermediate scrutiny to a classification
4
based on illegitimacy, and describing how heightened
5
scrutiny had been used for such classifications starting in
6
1976); Frontiero v. Richardson, 411 U.S. 677, 682 (1973)
7
(plurality opinion) (identifying sex as a suspect class);
8
Boren, 429 U.S. at 197-98 (applying intermediate scrutiny to
9
a classification based on sex); United States v. Virginia,
See Lalli v. Lalli, 439 U.S. 259, 264-65, 275
10
518 U.S. 515, 575 (1996) (Scalia, J., dissenting)
11
(summarizing that sex-based classifications were analyzed
12
with rational basis review before the 1970's).2
13
had not yet ruled that “a classification of [homosexuals]
14
undertaken for its own sake” actually lacked a rational
15
basis.
16
1971, the government could lawfully “demean [homosexuals’]
17
existence or control their destiny by making their private
18
sexual conduct a crime.”
19
574, 578 (2003) (noting that there was a “tenable” equal
The Court
Romer v. Evans, 517 U.S. 620, 635 (1996).
And, in
Lawrence v. Texas, 539 U.S. 558,
2
While other classifications have been deemed quasisuspect or suspect over the years, the decisions to add sex
and illegitimacy are especially helpful in analyzing whether
the classification made in DOMA merits intermediate
scrutiny.
18
1
protection argument against such laws, but choosing instead
2
to overturn Bowers v. Hardwick, 478 U.S. 186 (1986)).
3
doctrinal changes constitute another reason why Baker does
4
not foreclose our disposition of this case.
5
These
The First Circuit has suggested in dicta that
6
recognition of a new suspect classification in this context
7
would “imply[] an overruling of Baker.”
8
682 F.3d at 9.
9
Circuit did not discuss.
See Massachusetts,
We disagree for two reasons that the First
First, when it comes to marriage,
10
legitimate regulatory interests of a state differ from those
11
of the federal government.
12
area that has long been regarded as a virtually exclusive
13
province of the States.”
14
(1975).
15
State . . . has [the] absolute right to prescribe the
16
conditions upon which the marriage relation between its own
17
citizens shall be created, and the causes for which it may
18
be dissolved.”
19
(1878), overruled on other grounds by Shaffer v. Heitner,
20
433 U.S. 186 (1977).
21
analysis of DOMA’s marital classification under federal law
22
is distinct from the analysis necessary to determine whether
23
the marital classification of a state would survive such
24
scrutiny.
Regulation of marriage is “an
Sosna v. Iowa, 419 U.S. 393, 404
It has for very long been settled that “[t]he
Pennoyer v. Neff, 95 U.S. 714, 734-35
Therefore, our heightened scrutiny
19
1
Second, the Supreme Court’s decision to apply rational
2
basis review in Romer does not imply to us a refusal to
3
recognize homosexuals as a quasi-suspect class.
4
Massachusetts, 682 F.3d at 9.
5
abandoned their quasi-suspect argument after the trial court
6
decision.
7
dissenting).
8
Baker has no bearing on this case.
See
The litigants in Romer had
See Romer, 517 U.S. at 640 n.1 (Scalia, J.,
We are satisfied, for these reasons, that
9
10
11
III
“In deciding an equal protection challenge to a statute
12
that classifies persons for the purpose of receiving
13
[federal] benefits, we are required, so long as the
14
classifications are not suspect or quasi-suspect and do not
15
infringe fundamental constitutional rights, to uphold the
16
legislation if it bears a rational relationship to a
17
legitimate governmental objective.”
18
F.2d 132, 136 (2d Cir. 1990).
19
bare . . . desire to harm a politically unpopular group
20
cannot constitute a legitimate government interest.’”
21
v. Evans, 517 U.S. 620, 634-35 (1996) (quoting Dep’t. of
22
Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
23
rational basis review is indulgent and respectful, it is not
Thomas v. Sullivan, 922
Of course, “‘a
20
Romer
So while
1
meant to be “toothless.”
2
234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495, 510
3
(1976)).
4
Schweiker v. Wilson, 450 U.S. 221,
The district court ruled that DOMA violated the Equal
5
Protection Clause for want of a rational basis.
6
833 F. Supp. 2d at 406.
7
basis for Section 3 of DOMA is closely argued.
8
amici proffer several justifications that alone or in tandem
9
are said to constitute sufficient reason for the enactment.
Windsor,
But the existence of a rational
BLAG and its
10
Among these reasons are protection of the fisc, uniform
11
administration of federal law notwithstanding recognition of
12
same-sex marriage in some states but not others, the
13
protection of traditional marriage generally, and the
14
encouragement of “responsible” procreation.
15
Windsor and her amici vigorously argue that DOMA is not
16
rationally related to any of these goals.
17
review places the burden of persuasion on the party
18
challenging a law, who must disprove “‘every conceivable
19
basis which might support it.’”
20
312, 320 (1993) (quoting Lehnhausen v. Lake Shore Auto Parts
21
Co., 410 U.S. 356, 364 (1973)).
22
absence of any rational basis takes up a heavy load.
23
would seem to be true in this case--the law was passed by
21
Rational basis
Heller v. Doe, 509 U.S.
So a party urging the
That
1
overwhelming bipartisan majorities in both houses of
2
Congress; it has varying impact on more than a thousand
3
federal laws; and the definition of marriage it affirms has
4
been long-supported and encouraged.
5
On the other hand, several courts have read the Supreme
6
Court’s recent cases in this area to suggest that rational
7
basis review should be more demanding when there are
8
“historic patterns of disadvantage suffered by the group
9
adversely affected by the statute.”
See Massachusetts, 682
10
F.3d at 10-11; Able v. U.S., 155 F.3d 628, 634 (2d Cir.
11
1998); United States v. Then, 56 F.3d 464, 468 (2d Cir.
12
1995) (Calabresi, J., concurring).
13
lines, the district court in this case and the First Circuit
14
in Massachusetts both adopted more exacting rational basis
15
review for DOMA.
16
(describing its “more careful assessment”); Windsor, 833 F.
17
Supp. 2d at 402 (noting that “rational basis analysis can
18
vary by context”).
19
characterized this form of analysis as “rational basis plus
20
or intermediate scrutiny minus.”
Proceeding along those
See Massachusetts, 682 F.3d at 11
At argument, counsel for BLAG wittily
Oral Arg. Tr. 16:10-12.
21
The Supreme Court has not expressly sanctioned such
22
modulation in the level of rational basis review; discussion
23
pro and con has largely been confined to concurring and
22
1
dissenting opinions.3
2
is some doctrinal instability in this area.
We think it is safe to say that there
3
Fortunately, no permutation of rational basis review is
4
needed if heightened scrutiny is available, as it is in this
5
case.
6
which explains why Section 3 of DOMA may withstand rational
7
basis review.
We therefore decline to join issue with the dissent,
3
Compare Lawrence, 539 U.S. at 580 (O’Connor, J.,
concurring) (“When a law exhibits such a desire to harm a
politically unpopular group, we have applied a more
searching form of rational basis review to strike down such
laws under the Equal Protection Clause.”) and U.S. R.R. Ret.
Bd. v. Fritz, 449 U.S. 166, 188 (1980) (Brennan, J.,
dissenting) (“In other cases, however, the courts must probe
more deeply.”) with City of Cleburne, Tex. v. Cleburne
Living Center, 473 U.S. 432, 459-60 (1985) (Marshall, J.,
concurring in part and dissenting in part) (“The refusal to
acknowledge that something more than minimum rationality
review is at work here is, in my view,
unfortunate . . . . [B]y failing to articulate the factors
that justify today's ‘second order’ rational-basis review,
the Court provides no principled foundation for determining
when more searching inquiry is to be invoked. Lower courts
are thus left in the dark on this important question, and
this Court remains unaccountable for its decisions
employing, or refusing to employ, particularly searching
scrutiny.”) and Mass. Bd. of Ret. v. Murgia, 427 U.S. 307,
321 (1976) (Marshall, J., dissenting) (“[T]he Court has
rejected, albeit Sub silentio, its most deferential
statements of the rationality standard in assessing the
validity under the Equal Protection Clause of much
noneconomic legislation.”). But see U.S. R.R. Ret. Bd., 449
U.S. at 176 n.10 (“The comments in the dissenting opinion
about the proper cases for which to look for the correct
statement of the equal protection rational-basis standard,
and about which cases limit earlier cases, are just that:
comments in a dissenting opinion.”).
23
1
Instead, we conclude that review of Section 3 of DOMA
2
requires heightened scrutiny.
3
certain factors to decide whether a new classification
4
qualifies as a quasi-suspect class.
5
whether the class has been historically “subjected to
6
discrimination,” Bowen v. Gilliard, 483 U.S. 587, 602
7
(1987); B) whether the class has a defining characteristic
8
that “frequently bears [a] relation to ability to perform or
9
contribute to society,” Cleburne, 473 U.S. at 440-41; C)
The Supreme Court uses
They include: A)
10
whether the class exhibits “obvious, immutable, or
11
distinguishing characteristics that define them as a
12
discrete group;” Bowen, 483 U.S. at 602; and D) whether the
13
class is “a minority or politically powerless.”
14
Immutability and lack of political power are not strictly
15
necessary factors to identify a suspect class.
16
Cleburne, 473 U.S. at 442 n.10 (“‘[T]here’s not much left of
17
the immutability theory, is there?’”) (quoting J. Ely,
18
Democracy and Distrust 150 (1980)); Cleburne, 473 U.S. at
19
472 n.24 (Marshall, J., concurring in part and dissenting in
20
part) (“The ‘political powerlessness’ of a group may be
21
relevant, but that factor is neither necessary, as the
22
gender cases demonstrate, nor sufficient, as the example of
23
minors illustrates.”); Nyquist v. Mauclet, 432 U.S. 1, 9
24
Id.
See
1
n.11 (1977) (rejecting the argument that alienage did not
2
deserve strict scrutiny because it was not immutable); see
3
also Pedersen, 2012 WL 3113883, at *13; Golinski, 824 F.
4
Supp. 2d at 983; Kerrigan v. Comm’r of Pub. Health, 289
5
Conn. 135, 167-68 (2008). Nevertheless, immutability and
6
political power are indicative, and we consider them here.
7
In this case, all four factors justify heightened scrutiny:
8
A) homosexuals as a group have historically endured
9
persecution and discrimination; B) homosexuality has no
10
relation to aptitude or ability to contribute to society; C)
11
homosexuals are a discernible group with non-obvious
12
distinguishing characteristics, especially in the subset of
13
those who enter same-sex marriages; and D) the class remains
14
a politically weakened minority.
15
A)
16
It is easy to conclude that homosexuals have suffered a
History of Discrimination
17
history of discrimination.
18
to establish and document this history, but we think it is
19
not much in debate.
20
animus and discrimination against homosexuals in this
21
country is that, for many years and in many states,
22
homosexual conduct was criminal.
These laws had the
23
imprimatur of the Supreme Court.
See Bowers, 478 U.S. at
Windsor and several amici labor
Perhaps the most telling proof of
25
1
196; see also Lawrence, 539 U.S. at 578 (noting that such
2
laws “demean[ed homosexuals’] existence [and] control[led]
3
their destiny”).
4
BLAG argues that discrimination against homosexuals
5
differs from that against racial minorities and women
6
because “homosexuals as a class have never been politically
7
disenfranchised.”
8
Citizens born out of wedlock have never been inhibited in
9
voting; yet the Supreme Court has applied intermediate
True, but the difference is not decisive.
10
scrutiny in cases of illegitimacy.
11
Lalli, 439 U.S. 259 (1982).
12
unlike protected classes, homosexuals have not “suffered
13
discrimination for longer than history has been recorded.”
14
But whether such discrimination existed in Babylon is
15
neither here nor there.
16
endured discrimination in this country since at least the
17
1920s.
18
sufficient to document a “history of discrimination.”
19
Pedersen, 2012 WL 3113883 at *21 (summarizing that “the
20
majority of cases which have meaningfully considered the
21
question [have] likewise held that homosexuals as a class
22
have experienced a long history of discrimination”).
23
B)
See generally Lalli v.
Second, BLAG argues that,
BLAG concedes that homosexuals have
Ninety years of discrimination is entirely
Relation to Ability
26
See
1
Also easy to decide in this case is whether the class
2
characteristic “frequently bears [a] relation to ability to
3
perform or contribute to society.”
4
440-41; see Frontiero, 411 U.S. at 686 (“[W]hat
5
differentiates sex from such non-suspect statuses as
6
intelligence or physical disability, and aligns it with the
7
recognized suspect criteria, is that the sex characteristic
8
frequently bears no relation to ability to perform or
9
contribute to society.”).
Cleburne, 473 U.S. at
In Cleburne, the Supreme Court
10
ruled that heightened scrutiny was inappropriate because
11
“those who are mentally retarded have a reduced ability to
12
cope with and function in the everyday world.”
13
442.
14
age classifications, finding that heightened scrutiny was
15
not appropriate for mandatory retirement laws because
16
“physical ability generally declines with age” and such
17
requirements reasonably “serve[d] to remove
18
from . . . service those whose fitness for uniformed work
19
presumptively has diminished with age.”
20
316.
21
473 U.S. at
The Court employed similar reasoning with respect to
There is no such impairment here.
Murgia, 427 U.S. at
There are some
22
distinguishing characteristics, such as age or mental
23
handicap, that may arguably inhibit an individual's ability
27
1
to contribute to society, at least in some respect.
2
homosexuality is not one of them.
3
experience has nothing to do with aptitude or performance.
4
But
The aversion homosexuals
We do not understand BLAG to argue otherwise.
Rather,
5
BLAG suggests that the proper consideration is whether “the
6
classification turns on ‘distinguishing characteristics
7
relevant to interests the State has the authority to
8
implement,’” quoting Cleburne, 473 U.S. at 441.
9
urges that same-sex couples have a diminished ability to
10
discharge family roles in procreation and the raising of
11
children.
12
standard to support its interpretation, and it is
13
inconsistent with actual cases.
14
U.S. at 686 (distinguishing that sex, unlike intelligence,
15
has no bearing on one’s general ability to contribute to
16
society).
17
by BLAG bear upon whether the law withstands scrutiny (the
18
second step of analysis) rather than upon the level of
19
scrutiny to apply.
20
(1988) (defining the test for intermediate scrutiny as
21
whether a classification is “substantially related to an
22
important government interest”).
Thus, BLAG
BLAG cites no precedential application of that
See, e.g., Frontiero, 411
In any event, the abilities or inabilities cited
Cf. Clark v. Jeter, 486 U.S. 456, 461
23
28
1
2
C)
Distinguishing Characteristic
We conclude that homosexuality is a sufficiently
3
discernible characteristic to define a discrete minority
4
class.
5
Montgomery County, Ohio, 470 U.S. 1009, 1014 (1985)
6
(Brennan, J., dissenting from denial of certiorari)
7
(“[H]omosexuals constitute a significant and insular
8
minority of this country’s population.”).
9
See Rowland v. Mad River Local School Dist.,
This consideration is often couched in terms of
10
“immutability.”
11
orientation is not necessarily fixed, suggesting that it may
12
change over time, range along a continuum, and overlap (for
13
bisexuals).
14
“obvious, immutable, or distinguishing characteristics that
15
define . . . a discrete group.”
16
(emphasis added).
17
Mathews v. Lucas, 427 U.S. 495, 506 (1976).
18
based on alienage, illegitimacy, and national origin are all
19
subject to heightened scrutiny, Cleburne, 473 U.S. at 440-
20
41, even though these characteristics do not declare
21
themselves, and often may be disclosed or suppressed as a
BLAG and its amici argue that sexual
But the test is broader: whether there are
See Bowen, 483 U.S. at 602
No “obvious badge” is necessary.
29
See
Classifications
1
matter of preference.4
2
characteristic of the class calls down discrimination when
3
it is manifest.
4
What seems to matter is whether the
Thus a person of illegitimate birth may keep that
5
status private, and ensure that no outward sign discloses
6
the status in social settings or in the workplace, or on the
7
subway.
8
benefits on the death of a parent (for example), the
9
illegitimate status becomes manifest.
But when such a person applies for Social Security
The characteristic is
10
necessarily revealed in order to exercise a legal right.
11
Similarly, sexual preference is necessarily disclosed when
4
Alienage and illegitimacy are actually subject to
change. See Pedersen, 2012 WL 3113883 at *23 (“The Supreme
Court has held that resident aliens constitute a suspect
class despite the ability to opt out of the class
voluntarily. Additionally, one's status as illegitimate may
be subject to change and is therefore not a strictly
immutable characteristic.”) (internal citation omitted); see
also Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989)
(Norris, J., concurring) (“It is clear that by
‘immutability’ the [Supreme] Court has never meant strict
immutability in the sense that members of the class must be
physically unable to change or mask the trait defining their
class. People can have operations to change their sex.
Aliens can ordinarily become naturalized citizens. The
status of illegitimate children can be changed. People can
frequently hide their national origin by changing their
customs, their names, or their associations. . . . At a
minimum, then, the Supreme Court is willing to treat a trait
as effectively immutable if changing it would involve great
difficulty, such as requiring a major physical change or a
traumatic change of identity.”).
30
1
two persons of the same sex apply for a marriage license (as
2
they are legally permitted to do in New York), or when a
3
surviving spouse of a same-sex marriage seeks the benefit of
4
the spousal deduction (as Windsor does here).
5
BLAG argues that a classification based on sexual
6
orientation would be more “amorphous” than discrete.
7
be that the category exceeds the number of persons whose
8
sexual orientation is outwardly “obvious, immutable, or
9
distinguishing,” and who thereby predictably undergo
It may
10
discrimination.
11
illegitimacy and national origin.
12
is whether the characteristic invites discrimination when it
13
is manifest.
14
But that is surely also true of
Again, what matters here
The class affected by Section 3 of DOMA is composed
15
entirely of persons of the same sex who have married each
16
other.
17
category of homosexuals; but as counsel for BLAG conceded at
18
argument, there is nothing amorphous, capricious, or
19
tentative about their sexual orientation.
20
12:11-14.
21
are the population most visible to the law, and they are
22
foremost in mind when reviewing DOMA’s constitutionality.
Such persons constitute a subset of the larger
Oral Arg. Tr.
Married same-sex couples like Windsor and Spyer
23
31
1
We therefore conclude that sexual orientation is a
2
sufficiently distinguishing characteristic to identify the
3
discrete minority class of homosexuals.
4
D)
5
Finally, we consider whether homosexuals are a
Political Power
6
politically powerless minority.
7
Without political power, minorities may be unable to protect
8
themselves from discrimination at the hands of the
9
majoritarian political process.
See Bowen, 483 U.S. at 602.
We conclude that
10
homosexuals are still significantly encumbered in this
11
respect.
12
The question is not whether homosexuals have achieved
13
political successes over the years; they clearly have.
14
question is whether they have the strength to politically
15
protect themselves from wrongful discrimination.
16
Supreme Court ruled that sex-based classifications were
17
subject to heightened scrutiny in 1973, the Court
18
acknowledged that women had already achieved major political
19
victories.
20
Amendment had been ratified in 1920, and Title VII had
21
already outlawed sex-based employment.
22
The Court was persuaded nevertheless that women still lacked
23
adequate political power, in part because they were “vastly
See Frontiero, 411 U.S. at 685.
32
The
When the
The Nineteenth
See 78 Stat. 253.
1
underrepresented in this Nation’s decisionmaking councils,”
2
including the presidency, the Supreme Court, and the
3
legislature.
4
Frontiero, 411 U.S. at 686 n.17.
There are parallels between the status of women at the
5
time of Frontiero and homosexuals today: their position “has
6
improved markedly in recent decades,” but they still “face
7
pervasive, although at times more subtle,
8
discrimination . . . in the political arena.”
9
411 U.S. at 685-86.
Frontiero,
It is difficult to say whether
10
homosexuals are “under-represented” in positions of power
11
and authority without knowing their number relative to the
12
heterosexual population.
13
seemingly small number of acknowledged homosexuals so
14
situated is attributable either to a hostility that excludes
15
them or to a hostility that keeps their sexual preference
16
private--which, for our purposes, amounts to much the same
17
thing.
18
suppress some degree of political activity by inhibiting the
19
kind of open association that advances political agendas.
20
See Rowland, 470 U.S. at 1014 (Brennan, J., dissenting from
21
denial of certiorari) (“Because of the immediate and severe
22
opprobrium often manifested against homosexuals once so
23
identified publicly, members of this group are particularly
But it is safe to say that the
Moreover, the same considerations can be expected to
33
1
powerless to pursue their rights openly in the political
2
arena.”).
3
In sum, homosexuals are not in a position to adequately
4
protect themselves from the discriminatory wishes of the
5
majoritarian public.
6
7
* * *
Analysis of these four factors supports our conclusion
8
that homosexuals compose a class that is subject to
9
heightened scrutiny.
We further conclude that the class is
10
quasi-suspect (rather than suspect) based on the weight of
11
the factors and on analogy to the classifications recognized
12
as suspect and quasi-suspect.
13
the target of significant and long-standing discrimination
14
in public and private spheres, this mistreatment “is not
15
sufficient to require ‘our most exacting scrutiny.’”
16
Trimble v. Gordon, 430 U.S. 762, 767 (1977) (quoting Mathews
17
v. Lucas, 427 U.S. 495, 506 (1976)).
18
19
While homosexuals have been
The next step is to determine whether DOMA survives
intermediate scrutiny review.
20
21
IV
22
To withstand intermediate scrutiny, a classification
23
must be “substantially related to an important government
34
1
interest.”
2
“Substantially related” means that the explanation must be
3
“‘exceedingly persuasive.’”
4
U.S. 515, 533 (1996) (quoting Mississippi Univ. for Women v.
5
Hogan, 458 U.S. 718, 724 (1982)).
6
be genuine, not hypothesized or invented post hoc in
7
response to litigation.”
8
9
Clark v. Jeter, 486 U.S. 456, 461 (1988).
United States v. Virginia, 518
“The justification must
Id.
BLAG advances two primary arguments for why Congress
enacted DOMA.
First, it cites “unique federal interests,”
10
which include maintaining a consistent federal definition of
11
marriage, protecting the fisc, and avoiding “the unknown
12
consequences of a novel redefinition of a foundational
13
social institution.”
14
enacted the statute to encourage “responsible procreation.”
15
At argument, BLAG’s counsel all but conceded that these
16
reasons for enacting DOMA may not withstand intermediate
17
scrutiny.
Second, BLAG argues that Congress
Oral Arg. Tr. 16:24-17:6.
18
A)
19
Statements in the Congressional Record express an
Maintaining a “Uniform Definition” of Marriage
20
intent to enforce uniform eligibility for federal marital
21
benefits by insuring that same-sex couples receive--or
35
1
lose--the same federal benefits across all states.5
2
However, the emphasis on uniformity is suspicious because
3
Congress and the Supreme Court have historically deferred to
4
state domestic relations laws, irrespective of their
5
variations.
6
To the extent that there has ever been “uniform” or
7
“consistent” rule in federal law concerning marriage, it is
8
that marriage is “a virtually exclusive province of the
9
States.”
Sosna, 419 U.S. at 404.
As the Supreme Court has
10
emphasized, “the states, at the time of the adoption of the
11
Constitution, possessed full power over the subject of
12
marriage and divorce. . . . [T]he Constitution delegated no
13
authority to the Government of the United States on the
14
subject of marriage and divorce.”
15
U.S. 562, 575 (1906) (emphasis added), overruled on other
16
grounds by Williams v. State of North Carolina, 317 U.S. 287
17
(1942).
18
an area of traditional state regulation.”
19
682 F.3d at 13.
Haddock v. Haddock, 201
DOMA was therefore an unprecedented intrusion “into
Massachusetts,
This is a reason to look upon Section 3 of
5
For example, certain legislators were concerned that
it would be administratively difficult to deal with benefit
changes as same-sex couples moved between states with
different policies on same-sex marriage. See, e.g., 150
Cong. Rec. 15318 (2004) (Sen. Inhofe).
36
1
DOMA with a cold eye.
2
itself instructive; ‘[d]iscriminations of an unusual
3
character especially suggest careful consideration to
4
determine whether they are obnoxious to the constitutional
5
provision.’”
6
(quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32,
7
37-38 (1928)).
8
9
“The absence of precedent . . . is
Romer v. Evans, 517 U.S. 620, 633 (1996)
Moreover, DOMA’s sweep arguably creates more discord
and anomaly than uniformity, as many amici observe.
Because
10
DOMA defined only a single aspect of domestic relations law,
11
it left standing all other inconsistencies in the laws of
12
the states, such as minimum age, consanguinity, divorce, and
13
paternity.
14
Supporting Petitioner at 12-13 (noting that “the federal
15
government has always accepted the states’ different ways of
16
defining parental status” and offering numerous examples of
17
critical differences in state parental policies).
18
See Br. of Amici Curiae Family Law Professors
The uniformity rationale is further undermined by
19
inefficiencies that it creates.
20
Circuit found, it was simpler--and more consistent--for the
21
federal government to ask whether a couple was married under
22
the law of the state of domicile, rather than adding “an
23
additional criterion, requiring the federal government to
37
As a district court in this
1
identify and exclude all same-sex marital unions from
2
federal recognition.”
3
Golinski, 824 F. Supp. 2d at 1001-02 (“The passage of DOMA
4
actually undermined administrative consistency by requiring
5
that the federal government, for the first time, discern
6
which state definitions of marriage are entitled to federal
7
recognition and which are not.”).
8
9
Pedersen, 2012 WL 3113883 at *48; see
Because DOMA is an unprecedented breach of longstanding
deference to federalism that singles out same-sex marriage
10
as the only inconsistency (among many) in state law that
11
requires a federal rule to achieve uniformity, the
12
rationale premised on uniformity is not an exceedingly
13
persuasive justification for DOMA.
14
B)
15
Another professed goal of Congress is to save
Protecting the Fisc
16
government resources by limiting the beneficiaries of
17
government marital benefits.
18
(1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2922.
19
prudence is undoubtedly an important government interest.
20
Windsor and certain amici contest whether the measure will
21
achieve a net benefit to the Treasury; but in matters of the
22
federal budget, Congress has the prerogative to err (if
23
error it is), and cannot be expected to prophesy the future
H.R. Rep. No. 104-664, at 18
38
Fiscal
1
accurately.
2
saving of welfare costs cannot justify an otherwise
3
invidious classification.”
4
365, 375 (1971) (quotation marks omitted).
5
court observed, “excluding any arbitrarily chosen group of
6
individuals from a government program conserves government
7
resources.”
8
marks).
9
But the Supreme Court has held that “[t]he
Graham v. Richardson, 403 U.S.
As the district
Windsor, 833 F. Supp. 2d at 406 (quotation
Citing Bowen v. Owens, 476 U.S. 340, 348 (1986), BLAG
10
draws the distinction that DOMA did not withdraw benefits
11
from same-sex spouses; since DOMA was enacted before same-
12
sex marriage was permitted in any state, DOMA operated to
13
prevent the extension of benefits to people who never
14
enjoyed them.
15
grounds and did not involve an invidious classification.
16
Id. at 349-50.
17
benefit withdrawal in the sense that it functionally
18
eliminated longstanding federal recognition of all marriages
19
that are properly ratified under state law--and the federal
20
benefits (and detriments) that come with that recognition.
21
However, Bowen was decided on rational basis
Moreover, DOMA is properly considered a
Furthermore, DOMA is so broad, touching more than a
22
thousand federal laws, that it is not substantially related
23
to fiscal matters.
As amicus Citizens for Responsibility
39
1
and Ethics in Washington demonstrates, DOMA impairs a number
2
of federal laws (involving bankruptcy and conflict-of-
3
interest) that have nothing to do with the public fisc.
4
Br. of Amicus Curiae Citizens for Responsibility and Ethics
5
in Washington at 5-11, 18-23.
6
intent to conserve public resources.
7
8
9
10
See
DOMA transcends a legislative
For these reasons, DOMA is not substantially related to
the important government interest of protecting the fisc.
C) Preserving a Traditional Understanding of Marriage
Congress undertook to justify DOMA as a measure for
11
preserving traditional marriage as an institution.
12
Cong. Rec. 14951.
13
does not give [a law] immunity from attack for lacking a
14
rational basis.”
15
tradition is hard to justify as meeting the more demanding
16
test of having a substantial relation to an important
17
government interest.
18
and rejected in litigation concerning anti-sodomy laws.
19
Lawrence, 539 U.S. at 577-78 (“‘[T]he fact that the
20
governing majority in a State has traditionally viewed a
21
particular practice as immoral is not a sufficient reason
22
for upholding a law prohibiting the practice; neither
23
history nor tradition could save a law prohibiting
150
But “[a]ncient lineage of a legal concept
Heller, 509 U.S. at 326.
A fortiori,
Similar appeals to tradition were made
40
See
1
miscegenation from constitutional attack.’”) (quoting
2
Bowers, 478 U.S. at 216 (Stevens, J., dissenting)) (emphasis
3
added).
4
Even if preserving tradition were in itself an
5
important goal, DOMA is not a means to achieve it.
6
district court found: “because the decision of whether
7
same-sex couples can marry is left to the states, DOMA does
8
not, strictly speaking, ‘preserve’ the institution of
9
marriage as one between a man and a woman.”
10
As the
Windsor, 833 F.
Supp. at 403.
11
Preservation of a traditional understanding of marriage
12
therefore is not an exceedingly persuasive justification for
13
DOMA.
14
D)
15
Finally, BLAG presents three related reasons why DOMA
Encouraging Responsible Procreation
16
advances the goals of “responsible childrearing”:
17
subsidizes procreation because only opposite-sex couples can
18
procreate “naturally”; DOMA subsidizes biological parenting
19
(for more or less the same reason); and DOMA facilitates the
20
optimal parenting arrangement of a mother and a father.
21
agree that promotion of procreation can be an important
22
government objective.
23
substantially related to it.
DOMA
But we do not see how DOMA is
41
We
1
All three proffered rationales have the same defect:
2
they are cast as incentives for heterosexual couples,
3
incentives that DOMA does not affect in any way.
4
not provide any incremental reason for opposite-sex couples
5
to engage in “responsible procreation.”6
6
opposite-sex couples to marry and procreate (or not) were
7
the same after DOMA was enacted as they were before.7
8
courts have likewise been unable to find even a rational
9
connection between DOMA and encouragement of responsible
DOMA does
Incentives for
Other
10
procreation and child-rearing.
11
at 14-15 (underscoring the “lack of any demonstrated
12
connection between DOMA’s treatment of same-sex couples and
13
its asserted goal of strengthening the bonds and benefits to
14
society of heterosexual marriage”) (citations omitted);
15
Windsor, 833 F. Supp. at 404-05; Pedersen, 2012 WL 3113883,
16
at *40-43.
See Massachusetts, 682 F.3d
17
6
“[T]he argument that withdrawing the designation of
‘marriage’ from same-sex couples could on its own promote
the strength or stability of opposite-sex marital
relationships lacks any such footing in reality.” Perry v.
Brown, 671 F.3d 1052, 1089 (9th Cir. 2012).
7
To the extent that BLAG is suggesting that Congress’
laws might actually influence sexual orientation, there is
no evidence to support that claim (and it strikes us as farfetched).
42
1
2
DOMA is therefore not substantially related to the
important government interest of encouraging procreation.
3
***
4
DOMA’s classification of same-sex spouses was not
5
substantially related to an important government interest.
6
Accordingly, we hold that Section 3 of DOMA violates equal
7
protection and is therefore unconstitutional.
8
9
10
V
Our straightforward legal analysis sidesteps the fair
11
point that same-sex marriage is unknown to history and
12
tradition.
13
holy matrimony.
14
status--however fundamental--and New York has elected to
15
extend that status to same-sex couples.
16
and dissolve a couple’s marriage, but it cannot sanctify or
17
bless it.
But law (federal or state) is not concerned with
Government deals with marriage as a civil
A state may enforce
For that, the pair must go next door.
18
19
20
21
CONCLUSION
For the foregoing reasons, we AFFIRM the grant of
Windsor’s motion for summary judgment.
43
1
2
STRAUB, Circuit Judge, dissenting in part and concurring in part:
INTRODUCTION
3
I respectfully dissent in part and concur in part.
4
I concur with those parts of the majority opinion that (1) deny BLAG’s motion to dismiss
5
the appeal taken by the United States, and (2) decline to certify to the New York Court of
6
Appeals the question of whether the State of New York recognized Windsor’s marriage at the
7
time of her wife’s death. For the reasons that follow, I dissent from the majority’s holding that
8
DOMA is unconstitutional under the Fifth Amendment’s equal protection guarantee.
9
The majority holds DOMA unconstitutional, a federal law which formalizes the
10
understanding of marriage in the federal context extant in the Congress, the Presidency, and the
11
Judiciary at the time of DOMA’s enactment and, I daresay, throughout our nation’s history. If
12
this understanding is to be changed, I believe it is for the American people to do so.
13
Forty years ago, the United States Supreme Court was presented with the essentially
14
identical challenge we have here. The then DOMA-like Minnesota law was upheld in that state’s
15
highest court because it found that the right to marry without regard to sex was not a
16
fundamental right and the law’s thrust was not irrational or invidious discrimination. The
17
Supreme Court of Minnesota held that the applicable Minnesota statute defining marriage as a
18
union between a man and a woman did not violate the United States Constitution. Upon their
19
appeal to the United States Supreme Court, the plaintiffs’ jurisdictional statement squarely
20
claimed that Minnesota’s same-sex marriage prohibition violated their equal protection rights.
21
The Supreme Court, in dismissing the appeal for “want of a substantial federal question,”
22
obviously found no constitutional infirmity in that DOMA-like Minnesota law. I am unable to
-1-
1
conclude, as it is suggested we should, that the Supreme Court of the United States would have
2
held as it did had it concluded that the Minnesota law was unconstitutional—at a time when it
3
was required to accept the appellate challenge. The Supreme Court made a merits decision, and
4
has never walked away from it or ever suggested that its disposition elided a merits
5
determination on some procedural basis. It has further instructed us that such a disposition,
6
albeit summary, rejects the challenge presented in the jurisdictional statement and is binding on
7
the lower federal courts. And, as recently as 2003, Justice O’Connor reminded us that rational
8
reasons exist to promote the traditional institution of marriage. Baker dictates my decision.
9
Furthermore, it is argued here that we are to disregard this binding precedent and the
10
traditionally applicable rational basis standard of review and, instead, now create a new type of
11
suspect classification requiring a heightened level of scrutiny in respect of the federal definition
12
of marriage. The Supreme Court has never done so, while reminding us to be wary of creating
13
any new such classification and itself not having created any in decades. I believe it would be
14
imprudent to do so in this case. Eleven of our nation’s federal Circuit Courts of Appeals have
15
not utilized an elevated form of scrutiny as to sexual orientation discrimination. Most recently,
16
the First Circuit went to the extreme of creating a new, increased level of rational basis analysis.
17
This appears to be the first case in which this Court is asked to do the same or more, and the
18
majority is the first to apply intermediate scrutiny to invalidate the federal definition of marriage
19
as between a man and a woman. The discrimination in this case does not involve a recognized
20
suspect or quasi-suspect classification. It is squarely about the preservation of the traditional
21
institution of marriage and its procreation of children. DOMA centers on legitimate state
22
interests that go beyond mere moral disapproval of an excluded group. DOMA’s classification is
-2-
1
to be reviewed on the basis of whether it has a rational relation to any legitimate end. Utilizing
2
that standard, I conclude that DOMA is constitutional. The rational basis standard is most
3
deferential to the determinations of the Congress. Such may be conclusory and are not to be
4
tried in the traditional fact-oriented process. The public policy choice set forth in DOMA is to be
5
made by Congress, not the Judiciary. In DOMA, Congress has set the boundaries for marriage—
6
all in keeping with American society’s historical view of a marriage as being between a man and
7
a woman. This is not the first time the Congress has signaled its intentions in various definitions
8
of eligibility for federal purposes as to children, marriage, and domestic relations. These have at
9
times conflicted with state laws but the federal law has always prevailed for federal purposes.
10
The Congress had the benefit of advice from the Department of Justice that DOMA is
11
constitutional. The Congress decided to codify what had always been implicit in federal law.
12
The history of federal legislation in respect of the meaning of marriage or spouse was never even
13
suggested to mean anything other than the lawful union of one man and one woman for all
14
federal purposes. The nation’s traditional understanding was memorialized in DOMA. Congress
15
explicitly sought to recognize for federal purposes the significance of our historical
16
understanding of a mainstream value, joining the biological component of the marriage
17
relationship to the legal responsibility of rearing the offspring of that union. The Congress
18
referenced its intention to sanction, for federal purposes, society’s desire to approve the man and
19
woman long term union as the ideal by which to beget and rear children. Indeed, state high
20
courts—as in New York—have credited their legislature’s rational decisions to promote the
21
welfare of children via opposite-sex marriage laws. Further, Congress has articulated, as another
22
legitimate reason for DOMA, that the federal fisc as well as America’s desired right to equitable
-3-
1
distribution of benefits should not be based on the particularity or peculiarity of any state’s
2
definition of marriage, but rather the federal government is entitled to codify a single definition
3
of marriage as historically understood.
4
The Congress was uniform and consistent. And, it chose not to rush ahead with a
5
redefinition at a time when all the states utilized the traditional definition of marriage. It chose to
6
let the issue evolve within American society. The Congress accomplished its task in a manner
7
which continues to respect the principle of federalism. The states remain free to define marriage
8
as they choose, pursuant to DOMA. And, forty-one of our states continue to define marriage as
9
DOMA does. The totality of the foregoing is sufficient to hold DOMA constitutional under the
10
rational basis standard. Even the majority opinion, while ultimately holding DOMA
11
unconstitutional under a higher level of scrutiny, appears to imply that DOMA passes rational
12
basis review. (Maj. Op. at 22:3–9.)
13
My final observation relates to the Attorney General’s current position. His assertion that
14
sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is
15
recently minted, and is contrary to an established body of cases to the contrary. The Attorney
16
General’s position is unprecedented in its departure from the Department of Justice’s long-
17
standing policy of defending federal statutes even if the President disagrees as a matter of policy.
18
At bottom, the issue here is marriage at the federal level for federal purposes, and not
19
other legitimate interests. The Congress and the President formalized in DOMA, for federal
20
purposes, the basic human condition of joining a man and a woman in a long-term relationship
21
and the only one which is inherently capable of producing another generation of humanity.
22
Whether that understanding is to continue is for the American people to decide via their choices
-4-
1
in electing the Congress and the President. It is not for the Judiciary to search for new standards
2
by which to negate a rational expression of the nation via the Congress.
3
4
DISCUSSION
I.
The Origin and Impact of DOMA
5
DOMA was enacted in 1996 in response to the possible end to the exclusion of same-sex
6
couples from civil marriage in Hawaii. In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawaii
7
Supreme Court held that denying same-sex couples the right to marry must be justified under
8
strict scrutiny, and remanded for further proceedings consistent with this determination.1 The
9
House Judiciary Committee’s Report on DOMA (the “House Report”) described Baehr as part of
10
an “orchestrated legal assault being waged against traditional heterosexual marriage.” See H.R.
11
Rep. No. 104-664, at 2–3 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906–07 (“House
12
Report” or “H. Rep.”).
13
DOMA has two key provisions. Section 2, the choice-of-law section, states:
14
15
16
17
18
19
20
No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.
21
28 U.S.C. § 1738C. This provision expresses Congress’s desire to prevent a situation where one
22
state would be forced to recognize same-sex marriages performed and recognized in a different
23
state.
1
Same-sex marriage never became law in Hawaii because, following Baehr, the Hawaii Constitution was amended
to allow for the legislative prohibition of same-sex marriage. See Haw. Const. art. I, § 23. But, this did not occur
until after DOMA was enacted.
-5-
1
2
3
4
5
6
7
Section 3, the definitional section of DOMA, provides:
In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word “marriage”
means only a legal union between one man and one woman as
husband and wife and the word “spouse” refers only to a person of
the opposite sex who is a husband or a wife.
8
1 U.S.C. § 7. This provision articulates Congressional recognition, for federal purposes, that
9
marriage is the union of a man and a woman.
10
The House Report indicates that several motivations led Congress to pass DOMA. It
11
identifies four “governmental interests advanced by this legislation: (1) defending and nurturing
12
the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality;
13
(3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce
14
government resources.” (H. Rep. at 12–18.) The House Report also justifies DOMA as a means
15
to “encourag[e] responsible procreation and child-rearing,” H. Rep. at 13, and as a way to reflect
16
Congress’s “moral disapproval of homosexuality, and a moral conviction that heterosexuality
17
better comports with traditional (especially Judeo-Christian) morality.” (H. Rep. at 16.)
18
Given the broad range of federal laws to which marital status is relevant, the
19
consequences of DOMA are far-reaching. In addition to preventing a surviving same-sex spouse
20
like Windsor from inheriting money or property free from an estate tax, DOMA prevents same-
21
sex married couples from lessening tax burdens by filing joint federal tax returns, see 26 U.S.C.
22
§ 1(a)-(c); prevents the surviving spouse of a same-sex marriage from collecting Social Security
23
survivor benefits, see, e.g., 42 U.S.C. § 402; and prevents federal employees from sharing their
24
health insurance and certain other medical benefits with same-sex spouses. As a result of
25
DOMA, married same-sex couples are deprived of many other, lesser-known rights, benefits, and
-6-
1
privileges including, inter alia, benefits relating to intellectual property; housing benefits;
2
veteran’s benefits; immigration entitlements (same-sex spouses are the only legally married
3
spouses of American citizens who can face deportation); employment benefits in the private
4
sector (including sick leave to care for one’s spouse under the Family and Medical Leave Act);
5
and protections relating to domestic and intimate partner crimes and family violence.
6
In sum, DOMA codifies, for purposes of federal statutes, regulations, and rulings, the
7
understanding of marriage as “only a legal union between one man and one woman as husband
8
and wife,” see 1 U.S.C. § 7, and it reserves to each state the ability to retain that definition as its
9
policy if the state so chooses, or to alter it, as it sees fit. See 28 U.S.C. § 1738C. In enacting
10
DOMA, therefore, Congress (1) maintained the status quo as to the federal definition of marriage
11
for the purposes of federal programs and benefits; and (2) recognized the right of any state to
12
allow gays and lesbians to marry while, at the same time, permitting other states to adhere to
13
their existing understandings of the institution of marriage.
14
II.
Standard of Review
15
We review a grant of summary judgment de novo. Bank of N.Y. v. First Millennium, Inc.,
16
607 F.3d 905, 914 (2d Cir. 2010). Summary judgment is appropriate only if “there is no genuine
17
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
18
R. Civ. P. 56(a). A fact is material “if it ‘might affect the outcome of the suit under the
19
governing law,’” and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable
20
jury could return a verdict for the nonmoving party.’” Holtz v. Rockefeller & Co., 258 F.3d 62,
21
69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
-7-
1
There being no dispute as to the material facts in this matter, I find, as a matter of law,
2
that DOMA is constitutional.
3
III.
4
The Precedential Effect of Baker v. Nelson
The majority concludes that Windsor’s claim is not foreclosed by the Supreme Court’s
5
summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972). In Baker, a same-sex couple
6
seeking the right to marry challenged a Minnesota law that limited marriage to opposite-sex
7
couples on the grounds that it violated due process and equal protection, as it unconstitutionally
8
discriminated on the basis of sex. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The
9
Minnesota Supreme Court, applying rational basis review, upheld the statute because it found the
10
right to marry without regard to sex was not fundamental, and because classifying who can
11
marry based on sex was not “irrational or invidious discrimination.” Id. at 187. The Court
12
reasoned that “[i]t is unrealistic to think that the original draftsmen of our marriage statutes,
13
which date from territorial days, would have used the term” to mean anything other than “the
14
state of union between persons of the opposite sex.” Id. at 186. In so doing, the Court found
15
support in the 1966 version of Webster’s Third New International Dictionary, the fourth edition
16
of Black’s Law Dictionary, the Book of Genesis, and Skinner v. Oklahoma, which declared that
17
“[m]arriage and procreation are fundamental to the very existence and survival of the race.” 316
18
U.S. 535, 541 (invalidating Oklahoma’s Habitual Criminal Sterilization Act under the Fourteenth
19
Amendment’s Equal Protection Clause).
20
The Minnesota Supreme Court rejected petitioners’ reliance on Griswold v. Connecticut,
21
381 U.S. 479 (1965), and Loving v. Virginia, 388 U.S. 1 (1967). The Minnesota Supreme Court
22
held that the privacy right recognized in Griswold was “inherent in the marital relationship,” and
-8-
1
that Loving did not militate in favor of petitioners because “Virginia’s anti-miscegenation
2
statute . . . was invalidated solely on the grounds of its patent racial discrimination.” Id. at 186–
3
87. The Court concluded that in both a “commonsense and in a constitutional sense, there is a
4
clear distinction between a martial restriction based merely upon race and one based upon the
5
fundamental difference in sex.” Id. at 187. The United States Supreme Court summarily
6
dismissed the appeal of the Minnesota Supreme Court’s ruling for “want of a substantial federal
7
question.” Baker, 409 U.S. at 810.
8
The equal protection guarantee of the Fifth Amendment, which applies to the federal
9
government, functions identically to the Equal Protection Clause of the Fourteenth Amendment,
10
which applies to the states. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995).
11
Therefore, jurisprudence interpreting one applies to the other. It follows that any ruling of the
12
Supreme Court on a Fourteenth Amendment equal protection challenge to the denial of same-sex
13
marriage applies with equal force to an equal protection challenge to the denial of same-sex
14
marriage under the Fifth Amendment.
15
According to the jurisdictional statement of the appellants in Baker, the case presented,
16
inter alia, the question of “[w]hether appellee’s refusal, pursuant to Minnesota marriage statutes,
17
to sanctify appellants’ marriage because both are of the male sex violates their rights under the
18
equal protection clause of the Fourteenth Amendment.” (JA-695.) The question presented here,
19
by Windsor, can be formulated in a strikingly similar fashion: “Whether Section 3 of the
20
Defense of Marriage Act is consistent with the equal protection component of the Fifth
21
Amendment Due Process Clause.” (DOJ Br. at 2.)
-9-
1
Baker is a disposition on the merits, not a mere denial of certiorari, Hicks v. Miranda, 422
2
U.S. 332, 344 (1975), and any ruling inconsistent with its terms must be avoided. “[L]ower
3
courts are bound by summary decisions by this Court until such time as the Court informs (them)
4
that (they) are not.” Hicks, 422 U.S. at 344–45 (internal quotation omitted).
5
A summary dismissal means that “the Court found that the decision below was correct
6
and that no substantial question of the merits was raised.” E. Gressman, et al., Supreme Court
7
Practice § 5.18, p.365 (9th ed. 2007). See also Roxbury Taxpayers Alliance v. Del. Cnty. Bd. of
8
Supervisors, 80 F.3d 42, 48 (2d Cir. 1996) (recognizing dismissal for want of a substantial
9
federal question as “a decision on the merits of the case”); Port Auth. Bondholders Protective
10
Comm. v. Port of N.Y. Auth., 387 F.2d 259, 262 n.3 (2d Cir. 1967) (“[U]nless and until the
11
Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that
12
if the Court has branded a question as unsubstantial, it remains so except when doctrinal
13
developments indicate otherwise.”); cf. Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)
14
(rejecting argument that summary dispositions have “very little precedential significance” and
15
stating that “we are bound by the Supreme Court’s summary affirmances until such time as the
16
Court informs us that we are not”) (internal quotation omitted). Thus, Baker squarely rejected
17
the contention that prohibiting same-sex marriages violated equal protection.2
18
Whatever factual differences exist between the challenge to the Minnesota law presented
19
in Baker and Windsor’s challenge to DOMA, they are too attenuated to remove the instant case
20
from the scope of Baker’s precedential effect. Although the facts in this case are not identical to
2
1988 legislation curtailing the Supreme Court’s appellate jurisdiction did not change the precedential import of
summary dispositions. “Abolition of the [mandatory] appeal jurisdiction does not change this rule.” 16B Charles
Alan Wright & Arthur R. Miller, et al., Federal Practice & Procedure § 4014 (2d ed. 2012).
-10-
1
those in Baker, the “precedential value of a dismissal for want of a substantial federal question
2
extends beyond the facts of the particular case to all similar cases.” Wright v. Lane Cnty. Dist.
3
Court, 647 F.2d 940, 941 (9th Cir. 1981); see also League of Women Voters of Nassau Cnty. v.
4
Nassau Cnty. Bd. of Supervisors, 737 F.2d 155, 164 (2d Cir. 1984) (the court’s “responsibility in
5
gauging [a summary disposition’s] authority . . . is to mark out the ‘reach and content’ of that
6
prior disposition”).
7
The same-sex couple in Baker argued that Minnesota’s exclusion of same-sex couples
8
from the institution of civil marriage violated the Equal Protection Clause because it was
9
discrimination not rationally related to any legitimate governmental interest. Forty years may
10
have passed, but Windsor makes the same claim today (based on, inter alia, similar arguments
11
regarding the over-and under-inclusiveness of the limitation on the marriage right vis-à-vis the
12
procreation rationale). Whatever differences exist between Windsor’s claim and those advanced
13
in Baker, they are insignificant compared to the central fact that both cases present equal
14
protection challenges to laws prohibiting the recognition of any marriage entered into by two
15
persons of the same sex. Thus, any distinctions do not render DOMA sufficiently different from
16
Minnesota’s marriage law at the time of Baker such that it can be said the issues in this case were
17
not before and decided by the Supreme Court. The relevant facts of this case are substantially
18
similar to those of Baker, which necessarily decided that a state law defining marriage as a union
19
between a man and woman does not violate the Equal Protection Clause. Baker is the last word
20
from the Supreme Court regarding the constitutionality of a state law limiting marriage to
21
opposite-sex couples under the Equal Protection Clause and thus remains binding on this Court,
-11-
1
given that the equal protection component of the Fifth Amendment is identical to and
2
coextensive with the Fourteenth Amendment guarantee.
3
Since Baker holds that states may use the traditional definition of marriage for state
4
purposes without violating equal protection, it necessarily follows that Congress may define
5
marriage the same way for federal purposes without violating equal protection. See Citizens for
6
Equal Prot. v. Bruning, 455 F.3d 859, 870 (8th Cir. 2006) (“In the nearly one hundred and fifty
7
years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme
8
Court has suggested that a state statute or constitutional provision codifying the traditional
9
definition of marriage violates the Equal Protection Clause or any other provision of the United
10
States Constitution.”); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (per curiam) (Baker
11
“constitutes an adjudication on the merits which is binding on the lower federal courts”); Adams
12
v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980) (finding Baker controlling in case where
13
same-sex spouse appealed denial of petition with INS to be classified as “immediate relative”),
14
aff’d, 673 F.2d 1036, 1039 n.2 (9th Cir. 1982) (acknowledging precedential nature of Baker);
15
Wilson v. Ake, 354 F. Supp. 2d 1298, 1305 (M.D. Fla. 2005) (Baker is “binding precedent” with
16
“dispositive effect” requiring dismissal of equal protection challenge to DOMA).
17
The correctness of the Baker holding was placed squarely before the Supreme Court in
18
that case’s jurisdictional statement. The Court’s summary dismissal for want of a substantial
19
federal question is therefore a controlling precedent, unless and until re-examined by the
20
Supreme Court. Hicks, 422 U.S. at 343–45. “The Court neither acknowledges nor holds that
21
other courts should ever conclude that its more recent cases have, by implication, overruled an
22
earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to
-12-
1
this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 207
2
(1997).3
3
The close resemblance between the issue presented in Baker and the claim advanced by
4
Windsor means that the scope of Baker controls the question raised by this appeal, foreclosing
5
Windsor’s claim. That is, both cases involve the validity of same-sex couples’ deprivation of
6
marriage rights, a question already presented to and adjudicated on the merits by the Supreme
7
Court. In addition, if, as Baker held, denying same-sex couples the right to marry does not
8
violate equal protection, it follows that denying same-sex couples a subset of the rights (i.e.,
9
federal rights) associated with marriage is also constitutional. This conclusion is inescapable.
10
For the sake of completeness, in the event that there is any doubt that Baker forecloses
11
Windsor’s claim, I now proceed to consider the merits.
12
IV.
Principles of Equal Protection Analysis
13
“The Due Process Clause of the Fifth Amendment assures every person the equal
14
protection of the laws, ‘which is essentially a direction that all persons similarly situated should
15
be treated alike.’” Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998) (quoting City of
16
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
3
Although we have noted that questions may stop being “insubstantial” when subsequent doctrinal developments so
indicate, Port Auth. Bondholders, 387 F.2d at 263 n.3, the Supreme Court has never, despite the numerous
developments in the last forty years, stated that its holding in Baker is invalid. I am not convinced by Windsor’s
arguments that the Supreme Court’s decisions in Romer v. Evans and Lawrence v. Texas have eroded Baker’s
foundations such that it no longer holds sway.
In Romer, the Supreme Court applied rational basis scrutiny to laws that discriminated on the basis of sexual
orientation. In Lawrence, the Supreme Court expressly stated that “[t]he present case does not involve . . . whether
the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence,
539 U.S. at 578. Consequently, there are no doctrinal changes in Supreme Court jurisprudence implying that Baker
is no longer binding authority and Baker’s effect therefore hinges on whether the issues in this case were presented
to and necessarily decided by the Supreme Court.
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1
When the subject of unequal treatment is a member of a class that historically has been
2
the object of discrimination, or government conduct employs a classification—inter alia, race,
3
alienage, nationality, sex, and illegitimacy—closely associated with inequality, “the Supreme
4
Court has required a higher degree of justification than a rational basis, either strict or
5
intermediate scrutiny. Under the strict scrutiny test the government must demonstrate a
6
compelling need for the different treatment and that the provision in question is narrowly tailored
7
to achieve its objective. Under intermediate scrutiny, the government must at least demonstrate
8
that the classification is substantially related to an important governmental objective.” Id. at
9
631–32 (internal citations omitted).
10
Where no suspect classification is employed or fundamental right infringed upon by
11
government conduct, the constitutional guarantee of equal protection is satisfied where a
12
classification bears a rational relationship to an appropriate governmental interest. See Heller v.
13
Doe, 509 U.S. 312, 320 (1993). In evaluating whether the asserted purposes of a federal law are
14
rationally related to its ends, we defer to the judgment of Congress. Congressional enactments
15
that do not infringe upon a fundamental right or employ a suspect classification are entitled to “a
16
strong presumption of validity,” and must be sustained if “‘there is any reasonably conceivable
17
state of facts that could provide a rational basis for the classification.’” Id. at 319–20 (quoting
18
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). Rational basis review in an equal
19
protection analysis does not authorize “‘the judiciary [to] sit as a superlegislature to judge the
20
wisdom or desirability of legislative policy determinations made in areas that neither affect
21
fundamental rights nor proceed along suspect lines.’” Id. at 319 (quoting New Orleans v. Dukes,
22
427 U.S. 297, 303 (1976)).
-14-
1
Unlike under heightened scrutiny, in a rational basis equal protection analysis courts look
2
to any “conceivable basis” for the challenged law, not limited to those articulated by or even
3
consistent with the rationales offered by the legislature. Beach Commc’ns, 508 U.S. at 312.4
4
Those attacking the rationality of a legislative classification have the burden “to negative every
5
conceivable basis which might support it.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
6
356, 364 (1973) (internal quotation omitted). “The Constitution presumes that, absent some
7
reason to infer antipathy, even improvident decisions will eventually be rectified by the
8
democratic process and that judicial intervention is generally unwarranted no matter how
9
unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979)
10
(footnote omitted). “[A] law will be sustained if it can be said to advance a legitimate
11
government interest, even if the law seems unwise or works to the disadvantage of a particular
12
group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996).
13
Under the rational review framework, where there are “plausible reasons” for Congressional
14
action, a court’s “inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
15
This standard of review is “a paradigm of judicial restraint.” Beach Commc’ns, 508 U.S. at 314.
16
“[C]ourts are compelled under rational-basis review to accept a legislature’s generalizations even
17
when there is an imperfect fit between means and ends.” Heller, 509 U.S. at 321. “Only by
18
faithful adherence to th[e] guiding principle of [restraint in] judicial review of legislation is it
19
possible to preserve to the legislative branch its rightful independence and its ability to function.”
20
Beach Commc’ns, 508 U.S. at 315 (internal quotation omitted).
4
Indeed, in Beach Communications, the Supreme Court upheld the challenged law using a posited reason for a
federal agency regulation, even though Congress had previously rejected that purpose and the regulation presented a
conflict in the statutory scheme. Id. at 318.
-15-
1
Having a conceivable legitimate governmental interest is, alone, not sufficient for rational
2
basis review. To survive rational basis review, a law must also have a rational relationship to the
3
asserted legitimate governmental interest. In assessing the existence of a rational relationship,
4
courts should be guided by the knowledge that rational basis review is “the most relaxed and
5
tolerant form of judicial scrutiny under the Equal Protection Clause.” City of Dallas v. Stanglin,
6
490 U.S. 19, 26 (1989).
7
However, even under rational basis review, a law will fail if it seeks to further an
8
illegitimate end. For example, “the accommodation of . . . bias or animosity can never serve as a
9
legitimate government interest; mere negative attitudes, or fear, unsubstantiated by factors which
10
are properly cognizable in the circumstances, are not permissible bases for differential treatment
11
by the government.” Able, 155 F.3d at 634 (internal quotations omitted). Laws that single out a
12
certain class of citizens for disfavored legal status “raise the inevitable inference that the
13
disadvantage imposed is born of animosity toward the class of persons affected.” Romer, 517
14
U.S. at 633–34. And such animosity cannot constitute a legitimate governmental objective.
15
Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
16
Where the discrimination challenged is motivated both by impermissible purposes (e.g.,
17
animus, negative attitudes, malice, fear, the desire to harm a group, moral disapproval,
18
ignorance) and permissible purposes (under rational basis review, virtually any goal not
19
forbidden by the Constitution), the law may still be constitutionally valid. While “negative
20
attitudes,” “fear” or other biases “may often accompany irrational (and therefore
21
unconstitutional) discrimination, their presence alone does not a constitutional violation make.”
22
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001).
-16-
1
Because any single valid rationale is sufficient to support DOMA’s constitutionality, I
2
analyze only as many possible interests as necessary to sustain the law. See F.C.C. v. Beach
3
Commc’n, Inc., 508 U.S. 307, 317 (1993). I find that several of BLAG’s rationale suffice to
4
satisfy constitutional scrutiny.
5
V.
6
DOMA Survives Rational Basis Review
The House Report identifies four governmental interests advanced by DOMA:
7
“(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending
8
traditional notions of morality; (3) protecting state sovereignty and democratic self-governance;
9
and (4) preserving scarce government resources.” (H. Rep. at 12.)
10
BLAG contends that DOMA is supported by six rationales, all of which independently
11
justify the legislation under rational basis review. DOMA, it is argued, advances governmental
12
interest in: (1) maintaining a uniform federal definition of marriage, (2) preserving the public
13
fisc and respecting prior legislative judgments, (3) exercising caution, (4) recognizing opposite-
14
sex couples’ unique ability to procreate, (5) incentivizing the raising of children by their
15
biological parents, and (6) encouraging childrearing in a setting with both a mother and a father.
16
At oral argument, the Department of Justice confirmed that in 1996, in “a couple of
17
different letters,” it indicated to Congress that it believed “courts would uphold section three of
18
DOMA.” (Oral Arg. Tr. 42:8–14.) Specifically, in a letter dated May 14, 1996, the Department
19
of Justice indicated to the Honorable Henry J. Hyde, Chairman of the House Committee on the
20
Judiciary, that “[t]he Department of Justice believes that H.R. 3396 [DOMA] would be sustained
21
as constitutional.” (H. Rep. at 32.) On May 29, 1996, the Department of Justice again advised
22
Congress, in a letter to the Honorable Charles T. Canady, Chairman of the House Subcommittee
-17-
1
on the Constitution (Committee on the Judiciary), that DOMA “would be sustained as
2
constitutional if challenged in court, and that it does not raise any legal issues that necessitate
3
further comment by the Department.” (Id. at 32–33.)
4
The Department of Justice maintained this position until early 2011, defending DOMA
5
against numerous lawsuits in the intervening years. Indeed, from 2009 through early 2011, the
6
Department of Justice took the position that uniformity and a desire to preserve the status quo
7
vis-à-vis a federal definition of marriage provided a rationale for DOMA sufficient to sustain the
8
law under rational basis review, which was argued to be the applicable standard of scrutiny. See
9
Office of Pers. Mgmt. Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, Gill v. Office of Pers.
10
Mgmt., No. 09-cv-10309 (JLT), at 16–19 (D. Mass. Sept. 18, 2009) (docket entry no. 21); U.S.
11
Dep’t of Health and Human Servs. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss,
12
Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs., No. 09-cv-11156 (JLT), at
13
28–31 (D. Mass. Oct. 30, 2009) (docket entry no. 17); U.S. Dep’t of the Treasury Mot. to
14
Dismiss, Dragovich v. Dep’t of Treasury, No. 10-cv-1564 (CW), at 18–24 (N.D. Cal. July 2,
15
2010) (docket entry no. 25); U.S. Office of Pers. Mgmt. Supplemental Br. in Resp. to Ct.’s Order
16
of Oct. 15, 2010, Golinski v. Office of Pers. Mgmt., No. 10-257 (JSW), at 10–15 (N.D. Cal. Nov.
17
19, 2010) (docket entry no. 83). As late as January of 2011, the Department of Justice told the
18
First Circuit that DOMA was not unconstitutional. See Corrected Br. for the U.S. Dep’t of
19
Health and Human Servs., Commonwealth of Mass. v. U.S. Dep’t of Health and Human Servs.,
20
Nos. 10-2204, 10-2207, 10-2214, at 26–55 (1st Cir. Jan. 19, 2011). No relevant facts or law
21
have changed since early 2011 when the Department of Justice last took this position. Indeed, at
22
oral argument, the Department of Justice acknowledged that its current position on DOMA is, in
-18-
1
part, a result of “a decision that has been made by the Attorney General and by the President, [a]
2
constitutional judgment.” (Oral Arg. Tr. 42:21–43:6.)
3
Even now the Department of Justice acknowledges that “a reasonable argument for
4
Section 3’s constitutionality may be proffered under” the rational basis standard, and that there
5
exists “substantial circuit court authority applying rational basis review to sexual-orientation
6
classifications.” (JA-56, JA-53.) At argument, the Department of Justice summarized its most
7
recent arguments for DOMA’s rational basis as “maintaining the status quo” and achieving “a
8
degree of uniformity for federal benefits, coupled with preserving room for state policy
9
development.” (Oral Arg. Tr. 44:3–7.)
10
As explained above, only if there is no conceivable legitimate governmental interest, or
11
DOMA is not rationally related to any such interest, will the statute be unconstitutional under
12
rational basis review.
13
A.
Responsible Procreation and Childrearing by Biological Parents
14
In enacting DOMA, Congress sought to explicitly recognize, for federal purposes, the
15
biological component of the marital relationship and the legal responsibility of rearing the
16
offspring of such a union. Numerous state high courts have accepted this as a rational basis for
17
excluding same-sex couples, even legally recognized same-sex parents, from the institution of
18
civil marriage. DOMA advances the governmental interest in connecting marriage to biological
19
procreation by excluding certain couples who cannot procreate simply by joinder of their
20
different sexual being from the federal benefits of marital status.
21
22
Under rational basis review, courts must consider and credit all rationales for restricting
federal marriage benefits to opposite-sex couples that do not evince unconstitutional animus.
-19-
1
Numerous courts have recognized that denying same-sex couples federal marriage rights or even
2
the right to marry at all can be grounded in reasons other than animus. See Massachusetts v. U.S.
3
Dep’t of Health and Human Servs., 682 F.3d 1, 16 (1st Cir. 2012) (“Massachusetts v. HHS”)
4
(“we do not rely upon the charge that DOMA’s hidden but dominant purpose was hostility to
5
homosexuality”); In re Kandu, 315 B.R. 123, 147–48 (Bankr. W.D. Wash. 2004) (noting that
6
DOMA can be explained by legitimate governmental interests); Standhardt v. Superior Court, 77
7
P.3d 451, 465 (Ariz. Ct. App. 2003) (“Arizona’s prohibition of same-sex marriages furthers a
8
proper legislative end and was not enacted simply to make same-sex couples unequal to
9
everyone else.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“We do not
10
consider the refusal to issue the [marriage] license [to persons of the same sex] a punishment.”);
11
In re Marriage of J.B. & H.B., 326 S.W.3d 654, 680 (Tex. Ct. App. 2010) (rejecting argument
12
that limiting marriage and divorce to opposite-sex couples is “explicable only by class-based
13
animus”). See also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (“Unlike the moral disapproval
14
of same-sex relations—the asserted state interest in this case—other reasons exist to promote the
15
institution of marriage beyond mere moral disapproval of an excluded group.”) (O’Connor, J.,
16
concurring).
17
The interest in recognizing the connections between marriage and childrearing by
18
biological parents can be broken down into several components. First, DOMA expresses
19
Congressional recognition that “responsible begetting and rearing of new generations is of
20
fundamental importance to civil society.” (Amicus Br. of States of Indiana, et al. at 25.)
21
Because the state has an interest in children, the state is thus also interested in preventing
22
“irresponsible procreation,” a phenomenon implicated exclusively by heterosexuals. (BLAG Br.
-20-
1
at 49.) Because of these legitimate interests, reserving federal marriage rights to opposite-sex
2
couples “protect[s] civil society,” Amicus Br. of States of Indiana, et al. at 25, because without
3
the inducement of marriage, opposite-sex couples would accidentally procreate, giving rise to
4
unstable and unhealthy families. Marriage thus plays the important role of “channel[ing
5
opposite-sex] sexual desires” which, in the absence of marriage, would result in unstable
6
relationships, which have been documented to be harmful to children. (Amicus Br. of States of
7
Indiana, et al. at 26.)
8
As stated by BLAG, “[m]arriage attempts to promote permanence and stability, which are
9
vitally important to the welfare of the children of the marriage.” (BLAG Br. at 48–49.) That is,
10
marriage works to combat the risk of instability which is characteristic of inherently procreative
11
opposite-sex relationships, but absent from same-sex relationships. See Amicus Br. of States of
12
Indiana, et al. at 24 (“civil marriage recognition arises from the need to encourage biological
13
parents to remain together for the sake of their children”).5 DOMA advances this interest, in that
14
the state only needs to provide incentives to opposite-sex couples in the form of marriage,
15
because only opposite-sex couples have unintended, unplanned, unwanted children. Same-sex
5
See also Andersen v. King Cnty., 138 P.3d 963, 982–83 (Wash. 2006) (“[A]s Skinner, Loving, and Zablocki
indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the
only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and
procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple's willingness
or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise
children and have children with third party assistance or through adoption do not mean that limiting marriage to
opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational
basis.”); Lewis v. Harris, 875 A.2d 259, 277 (N.J. App. Div. 2005) (Parrillo, J.A.D., concurring) (“[A] core feature
of marriage is its binary, opposite-sex nature. . . . [T]he binary idea of marriage arose precisely because there are
two sexes.”); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 979 n.1 (Mass. 2003) (Sosman, J., dissenting)
(“[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse
between a man and a woman frequently results in pregnancy and childbirth . . . that fact lies at the core of why
society fashioned the institution of marriage in the first place.”).
-21-
1
couples, by contrast, reproduce only “deliberately choosing to do so and by devoting a serious
2
investment of time, attention, and resources.” (Amicus Br. of States of Indiana, et al. at 35.)
3
4
Numerous courts have accepted this rationale as a basis for excluding same-sex couples
from civil marriage. The New York Court of Appeals, for instance, determined that
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
The Legislature could . . . find that [heterosexual] relationships are
all too often casual or temporary. It could find that an important
function of marriage is to create more stability and permanence in
the relationships that cause children to be born. It thus could
choose to offer an inducement—in the form of marriage and its
attendant benefits—to opposite-sex couples who make a solemn,
long-term commitment to each other. The Legislature could find
that this rationale for marriage does not apply with comparable
force to same-sex couples. These couples can become parents by
adoption, or by artificial insemination or other technological
marvels, but they do not become parents as a result of accident or
impulse. The Legislature could find that unstable relationships
between people of the opposite sex present a greater danger that
children will be born into or grow up in unstable homes than is the
case with same-sex couples, and thus that promoting stability in
opposite-sex relationships will help children more.
21
Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (plurality opinion). See also Andersen, 138
22
P.3d at 1002 (Johnson, J., concurring); Morrison v. Sadler, 821 N.E.2d 15, 24–25 (Ind. Ct. App.
23
2005).
24
25
26
27
28
29
30
31
DOMA furthers the interest in recognizing the link between marriage and procreation for
the reasons noted by the Maryland Court of Appeals:
[S]afeguarding an environment most conducive to the stable
propagation and continuance of the human race is a legitimate
government interest. The question remains whether there exists a
sufficient link between an interest in fostering a stable environment
for procreation and the means at hand used to further that goal, i.e.,
an implicit restriction on those who wish to avail themselves of
-22-
1
2
3
4
5
6
7
8
9
State-sanctioned marriage. We conclude that there does exist a
sufficient link. . . . This “inextricable link” between marriage and
procreation reasonably could support the definition of marriage as
between a man and a woman only, because it is that relationship
that is capable of producing biological offspring of both members
(advances in reproductive technologies notwithstanding).
Conaway v. Deane, 932 A.2d 571, 630–31 (Md. 2007) (internal citations omitted).
Another component of the procreation and childrearing rationale for restricting federal
rights to opposite-sex marriage is the Congressional desire to have children raised in families
10
with only biological mothers and fathers, which same-sex couples cannot provide. Thus, BLAG
11
contends that DOMA “offer[s] special encouragement for relationships that result in mothers and
12
fathers jointly raising their biological children,” an interest which “simply does not apply to
13
same-sex couples.” (BLAG Br. at 54.) DOMA accomplishes this encouragement by limiting
14
federal marriage rights to opposite-sex couples.
15
Congress might well have enacted DOMA after consulting “the entire history of
16
civilization” regarding the “problems” that arise when there is no institution to encourage
17
biological parents to remain together. (Amicus Br. of States of Indiana, et al. at 35.) This, too,
18
has been accepted as a rational reason for excluding same-sex couples (including legally
19
recognized same-sex parents) from civil marriages. See, e.g., Hernandez, 855 N.E.2d at 8
20
(plurality opinion) (“Plaintiffs seem to assume that they have demonstrated the irrationality of
21
the view that opposite-sex marriages offer advantages to children by showing there is no
22
scientific evidence to support it. Even assuming no such evidence exists, this reasoning is
23
flawed. In the absence of conclusive scientific evidence, the Legislature could rationally proceed
-23-
1
on the commonsense premise that children will do best with a mother and father in the home.”).6
2
I agree with BLAG that the evidence offered by Windsor and the professional organizations and
3
child welfare amici who advocate for affirmance does not make Congress’s “common sense”
4
regarding the needs of children a forbidden governmental interest under rational basis review.
5
(BLAG Br. at 55.)
6
As noted hereafter in the context of uniformity, the manner in which DOMA furthers the
7
legitimate governmental interests in childrearing, responsible procreation, and biological
8
parentage respects the principles of federalism. States may still arrive at individual
9
determinations regarding who may and may not marry, and DOMA does nothing to change this
10
functioning of our federal system.7 DOMA simply excludes certain couples who are married
11
under state law from eligibility for certain federal rights, benefits, privileges, and obligations.
12
DOMA’s exclusion of married same-sex couples, under the rational basis review where
13
means and ends need not match, see Heller, 509 U.S. at 321, is sufficiently related to the federal
14
interest in recognizing the link between the marital relationship and the rearing of its offspring.
15
16
6
Amici American Psychological Association, American Academy of Pediatrics, American Psychiatric Association,
American Psychoanalytic Association, National Association of Social Workers, and New York State Psychological
Association argue that no such credible evidence exists. See Amicus Br. of the American Psychological
Association, et al. at 15–23.
7
The majority’s holding that DOMA’s definition of marriage as between a man and a woman is unconstitutional
will doubtless be used to invalidate the laws in those forty-one states. Such has to be so given the fact that the equal
protection analysis by the majority in this case for federal purposes pursuant to the Fifth Amendment is the same as
that to be applied as to the states pursuant to the Fourteenth Amendment and is, therefore, the yardstick by which to
hold unconstitutional the law in the forty-one states. Indeed, an affirmance by the Supreme Court of the majority’s
view would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.
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1
B.
Maintaining the Status Quo of Uniformity
2
BLAG contends that DOMA is rationally related to the legitimate governmental “interest
3
in uniform eligibility for federal marital benefits.” (BLAG Br. at 39.) Congress, it is argued, has
4
a “long history of enacting federal definitions of marriage that do not simply incorporate state
5
definitions and inevitably will conflict with some of them.” (Id. at 42–43.) A uniform federal
6
definition of marriage “ensures that similarly-situated couples will have the same benefits
7
regardless of which state they happen to live in.” (Id. at 39–40.) The District Court expressed
8
skepticism regarding the legitimacy of this end, but principally rejected this justification because
9
DOMA “intrude[s] upon the states’ business of regulating domestic relations.” (JA-1007–09.)
10
Windsor and various amici argue that “[t]he federal government [has always] accepted states’
11
determinations of who was validly married – no matter how far states’ criteria for validity
12
diverged from one other,” Historians Amicus Br. at 15, and that the promulgation of a federal
13
definition of marriage “injects the federal government into domestic relations law and works to
14
delegitimize both the lawful marriages of thousands of same-sex couples and the considered
15
judgments of . . . [s]tates to sanction same-sex marriages, . . . intrud[ing] on core state powers.”
16
(States of New York, Vermont, and Connecticut Amicus Br. at 14.)
17
The subject of domestic relations, including marriage, has been the province of the states.
18
See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (“Long ago we observed that
19
‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to
20
the laws of the States and not to the laws of the United States.’”) (quoting In re Burrus, 136 U.S.
21
586, 593 (1890)). But DOMA does not change this, and does nothing to strip the status that
-25-
1
states confer on couples they marry. Instead, DOMA limits the federal benefits, rights,
2
privileges, and responsibilities of marriage to a subset of those deemed married under state law.
3
That the federal government often defers to state determinations regarding marriage does
4
not obligate it to do so. While a state may be perfectly disinterested in prying into the reasons a
5
couple marries, the federal government remains deeply and properly concerned with the
6
reason(s) why a couple weds. See Massachusetts v. HHS, 682 F.3d at 12 (“Congress surely has
7
an interest in who counts as married. The statutes and programs that section 3 governs are
8
federal regimes such as social security, the Internal Revenue Code and medical insurance for
9
federal workers; and their benefit structure requires deciding who is married to whom.”).
10
For example, when people marry for immigration purposes, the federal government may
11
validly deem the marriage “fraudulent,” even though it remains valid under state law. See 8
12
U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of
13
evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or
14
fined not more than $250,000, or both.”); 8 U.S.C. §§ 1154(a)(2)(A), 1255(e). Courts have
15
recognized this principle. See, e.g., Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009)
16
(plaintiff remained a “spouse” and “immediate relative” under the Immigration and
17
Naturalization Act, even if her marriage actually ceased under state law upon the death of her
18
spouse); Adams v. Howerton, 673 F.2d 1036, 1040–41 (9th Cir. 1982) (even same-sex marriage
19
valid under state law does not count as a marriage for federal immigration law purposes); Lutwak
20
v. United States, 344 U.S. 604, 610–11 (1953) (noting a marriage’s adherence to local law is
21
immaterial if the marriage was “part of [a] conspiracy to defraud the United States”). Tellingly,
22
Windsor does not argue that federal Immigration and Customs Enforcement interferes with
-26-
1
traditional state functions when it leaves states free to recognize, for their own purposes, any
2
marriage they like but refuses to grant legal residency to immigrants it believes married only to
3
secure the benefits of marriage.
4
DOMA alters the general, but by no means unyielding, practice of the federal
5
government accepting marriages recognized by state law. However, at the time Congress acted,
6
all states recognized only opposite-sex marriages, and the fact that Congress chose to maintain
7
that status quo in response to this new, evolving social issue does not invalidate its legislative
8
interest. It may be that, prior to DOMA, any federal “definition” of marriage was limited to
9
advancing the targeted goal of a particular federal program, not a blanket, undifferentiated policy
10
choice imposed on statuses created by states. See Massachusetts v. HHS, 682 F.3d at 12. But
11
this fact does not render the asserted interest in uniformity illegitimate or so lacking a “footing in
12
the realities of the subject addressed by the legislation” as to fail rational basis review. Heller,
13
509 U.S. at 321.
14
Section 3 of DOMA was enacted as the debate regarding marriage equality was just
15
beginning in the states. At that time, no state had actually permitted same-sex couples to marry.
16
In the intervening years, six states and the District of Columbia have enacted statutes or issued
17
court decisions that permit same-sex marriage.8 On the other hand, thirty states have amended
18
their founding documents by constitutional amendment to prohibit same-sex marriage, and
19
eleven more states have enacted statutes to the same effect.9 Given the evolving nature of this
8
See N.Y. Dom. Rel. Law § 10-a (McKinney 2011); N.H. Rev. Stat. § 457:1-a (2010); D.C. Stat. § 46-401 (2010);
Vt. Stat. Ann. tit. 15 § 8 (2009); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Kerrigan v. Comm’r of Pub.
Health, 957 A.2d 407 (Conn. 2008); Goodridge, 798 N.E.2d 941 (Mass. 2003).
9
See Ala. Const. Art. I, § 36.03; Ala. Code § 30-1-19; Alaska Const. Art. 1, § 25; Alaska Stat. § 25.05.013; Ariz.
Const. Art. 30 § 1; Ariz. Rev. Stat. §§ 25-101 & 25-112; Ark. Const. Amend. 83, § 1; Ark. Code Ann. §§ 9-11-109,
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1
issue, Congress was entitled to maintain the status quo pending further developments.
2
Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the
3
outcome of this debate in each state, with the meanings of those terms under federal law
4
changing with any change in a given state. As Windsor rightly notes, prior to DOMA, a state’s
5
authorization of same-sex marriage had numerous implications for federal laws to the extent
6
those laws were construed to incorporate state-law definitions of marriage. In order to avoid
7
federal implications of state-law developments in the area of marriage, Congress, by enacting
8
DOMA, reasonably froze federal benefits policy as it existed in 1996 with respect to same-sex
9
marriage.
10
The federal government can legitimately limit the national impact of state-level policy
11
development. Doing so facilitates the ability of the states to serve as laboratories of policy
12
development. As the Massachusetts Supreme Court stated when it held that the Massachusetts
13
state constitution required allowing same-sex couples to marry, “[t]he genius of our Federal
9-11-107, 9-11-208; Cal. Const. Art. I, § 7.5; Colo. Const. Art. 2, § 31; Colo. Rev. Stat. § 14-2-104; 13 Del. Code
Ann. § 101; Fla. Const. Art. 1 § 27; Fla. Stat. § 741.212; Ga. Const. Art. 1, § 4, I; Ga. Code Ann. § 19-3-3.1; Haw.
Const. Art. 1, § 23; Haw. Rev. Stat. § 572-1; Idaho Const. Art. III, § 28; Idaho Code Ann. §§ 32-201 & 32-209; 750
Ill. Comp. Stat. 5/212; Ind. Code § 31-11-1-1; Kan. Const. Art. 15, § 16; Kan. Stat. Ann. §§ 23-101 & 23-115; Ky.
Const § 233A; Ky. Rev. Stat. Ann. §§ 402.005 & 402.020; La. Const. Art. 12, § 15; La. Civ. Code Ann. Art. 86, 89;
Me. Rev. Stat. Ann. tit. 19-A, § 701; Md. Code Ann., Fam. Law, § 2-201; Mich. Const. Art. 1, § 25; Mich. Comp.
Laws § 551.1; Minn. Stat.§ 517.03; Miss. Const. Art. 14, § 263A; Miss. Code Ann. § 93-1-1; Mo. Const. Art. I,
§ 33; Mo. Rev. Stat. § 451.022; Mont. Const. Art. XIII, § 7; Mont. Code Ann. § 40-1-401; Neb. Const. Art. I, § 29;
Nev. Const. Art. 1, § 21; N.C. Gen. Stat. § 51-1.2; N.D. Const. Art. XI, § 28; N.D. Cent. Code §§ 14-03-01 & 1403-08; Ohio Const. Art. 15, § 11; Ohio Rev. Code Ann. § 3101.01(C); Okla. Const. Art. 2, § 35; Okla. Stat. Ann. tit.
43, § 3.1; Or. Const. Art. XV, § 5a; 23 Pa. Cons. Stat. §§ 1102, 1704; S.C. Const. Art. XVII, § 15; S.C. Code Ann.
§ 20-1-15; S.D. Const. Art. 21, § 9; S.D. Codified Laws § 25-1-1; Tenn. Const. Art. XI, § 18; Tenn. Code Ann.
§ 36-3-113; Tex. Const. Art. 1, § 32; Tex. Fam. Code Ann. §§ 2.001(b) & 6.204; Utah Const. Art. I, § 29; Utah
Code Ann. §§ 30-1-2(5) & 30-1-4.1; Va. Const. Art. 1, § 15-A; Va. Code Ann. §§ 20-45.2 & 20-45.3; Wash. Rev.
Code § 26.04.010(1); W. Va. Code § 48-2-603; Wis. Const. Art. XIII, § 13; Wis. Stat. §§ 765.001(2) & 765.04;
Wyo. Stat. Ann. § 20-1-101. The statutory prohibitions or amendments of nineteen of these forty-one states forbid
not only same-sex marriage, but any other form of relationship recognition, such as domestic partnership or civil
union, between two persons of the same sex.
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1
system is that each State’s Constitution has vitality specific to its own traditions, and
2
that . . . each State is free to address difficult issues of individual liberty in . . . its own” manner.
3
Goodridge, 798 N.E.2d at 967.
4
Windsor argues that DOMA upends, rather than preserves, the status quo of
5
Congressional control over the meaning of marriage for federal purposes. But this argument is
6
contrary to the clear legal landscape at the time of DOMA’s enactment—that is, at the time, all
7
states were in full accord in recognizing only opposite-sex marriages. Congress’s actions allow
8
it to maintain a “wait-and-see” approach in the face of evolving state approaches to same-sex
9
marriages, thereby avoiding the need to immediately deal with the potentially significant impact
10
on federal law that a state’s recognition of same-sex marriage could have. Indeed, the far-
11
reaching impact of the federal definition of marriage in terms of rights, benefits, responsibilities,
12
and privileges (upon which Windsor places great emphasis) means that Congressional action can
13
quite reasonably be understood to have perceived this potential impact and decided that it was in
14
the federal government’s interest to maintain consistency and uniformity in distributing federal
15
benefits and administering federal programs.
16
Congress may, and both parties agree that it often does, borrow definitions from state
17
law, but Windsor is incorrect to suggest that it is required to do so or is irrational when it does
18
not. Put directly, Congress may also legitimately take an approach that attempts to create
19
uniformity across the states. In DOMA, Congress chose to adopt a uniform federal definition of
20
“marriage” and “spouse” for purposes of federal laws. Congress could rationally conclude that
21
maintaining the status quo at the federal level during a period of flux would allow states that
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1
wish to make changes in the legal definition of marriage to retain their inherent prerogative to do
2
so, while permitting others to maintain the traditional view.
3
Rational basis review embodies the principle that, as Congress did in enacting DOMA,
4
legislatures are free to refine their “preferred approach as circumstances change and as they
5
develop a more nuanced understanding of how best to proceed.” Massachusetts v. Envtl. Prot.
6
Agency, 549 U.S. 497, 524 (2007). Contrary to Windsor’s contention, the preservation of the
7
status quo—the definition of marriage that was uniform among all fifty states in the year of
8
DOMA’s passage—constitutes a legitimate governmental interest insofar as it allows Congress
9
the ability to “wait and see” how the issue of same-sex marriage would take shape among the
10
11
many and diverse states of our nation.
The uniformity that DOMA recognized and maintained has been recognized both
12
explicitly and implicitly by courts for many years from various jurisdictions across the nation.
13
Perhaps most explicitly, the Supreme Court stated:
14
15
16
17
18
19
20
21
22
23
24
[N]o legislation can be supposed more wholesome and necessary
in the founding of a free, self-governing commonwealth, fit to take
rank as one of the co-ordinate states of the Union, than that which
seeks to establish it on the basis of the idea of family, as consisting
in and springing from the union for life of one man and one
woman in the holy estate of matrimony; the sure foundation of all
that is stable and noble in our civilization; the best guaranty of that
reverent morality which is the source of all beneficent progress in
social and political improvement.
Murphy v. Ramsey, 114 U.S. 15, 45 (1885).
25
Other courts have explained that this uniformity has not always been explicit or necessary
26
to state. Almost forty years ago a Washington state court put it thus: “[A]lthough it appears that
27
the appellate courts of this state until now have not been required to define specifically what
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1
constitutes a marriage, it is apparent from a review of cases dealing with legal questions arising
2
out of the marital relationship that the definition of marriage as the legal union of one man and
3
one woman who are otherwise qualified to enter into the relationship not only is clearly implied
4
from such cases, but also was deemed by the court in each case to be so obvious as not to require
5
recitation.” Singer v. Hara, 522 P.2d 1187, 1191–92 (Wash. Ct. App. 1974). See also Jones v.
6
Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973) (“In substance, the [marital] relationship
7
proposed by the [same-sex] appellants does not authorize the issuance of a marriage license
8
because what they propose is not a marriage.”).
9
Cases predating Murphy demonstrate that the Supreme Court consistently lauded this
10
conception of marriage as a critical social institution. See Reynolds v. United States, 98 U.S.
11
145, 165-66 (1878) (“Marriage, while from its very nature a sacred obligation, is nevertheless, in
12
most civilized nations, a civil contract, and usually regulated by law. Upon it society may be
13
said to be built, and out of its fruits spring social relations and social obligations and duties.”).
14
Subsequent to Murphy, the Supreme Court has continued to view the biological link of
15
parents to children as deserving of special recognition and protection. See Michael H. v. Gerald
16
D., 491 U.S. 110, 120 n.1 (1989) (indicating that where, inter alia, a “husband and wife” are
17
“cohabiting,” there is a presumption that they are in a “harmonious and apparently exclusive
18
marital relationship”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (noting the special
19
“intimate relation of husband and wife”); see also Lawrence v. Texas, 539 U.S. 558, 567 (2003)
20
(“[I]t would demean a married couple were it to be said marriage is simply about the right to
21
have sexual intercourse.”). And marriage has been noted to carry special legal entitlements for
22
those men and women who enter into it. See, e.g., Griswold¸ 381 U.S at 495 (noting it is hard to
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1
conceive of what “is more private or more intimate than a husband and wife’s marital relations”
2
and “the rights to marital privacy and to marry and raise a family are of similar order and
3
magnitude as the fundamental rights specifically protected” in the Constitution) (Goldberg, J.,
4
concurring); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (determining right to “marry,
5
establish a home and bring up children” is a liberty right under the Fourteenth Amendment).10
6
The Supreme Court also has taken care to preserve and distinguish the rights of the
7
natural—that is, biological—family over “families” other than the biological. See Lehr v.
8
Robertson, 463 U.S 248, 256–57 (1983) (“The institution of marriage has played a critical role
9
both in defining the legal entitlements of family members and in developing the decentralized
10
structure of our democratic society. In recognition of that role . . . state laws almost universally
11
express an appropriate preference for the formal family.”) (footnotes omitted).11 It has noted that
12
“the Constitution protects the sanctity of the family precisely because the institution of the family
10
See also Caban v. Mohammed, 441 U.S. 380, 397 (1979) (“Even if it be assumed that each married parent after
divorce has some substantive due process right to maintain his or her parental relationship . . . , it by no means
follows that each unwed parent has any such right.”) (internal citations omitted) (Stewart, J., dissenting); Poe v.
Ullman, 367 U.S. 497, 553 (1961) (recognizing that “the intimacy of husband and wife is necessarily an essential
and accepted feature of the institution of marriage, an institution which the State not only must allow, but which
always and in every age it has fostered and protected,” and noting also that the “State” may “exert its power . . . to
say who may marry”) (Harlan, J., dissenting).
11
See also Santosky v. Kramer, 455 U.S. 745, 753 (1982) (noting the “absence of dispute” that “freedom of personal
choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment,” and
noting that “[e]ven when blood relationships are strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life”); Trimble v. Gordon, 430 U.S. 762, 769 (1977) (describing the “family unit” as
“perhaps the most fundamental social institution of our society”); Smith v. Org. of Foster Families for Equal. &
Reform, 431 U.S. 816, 823, 843–45 (1977) (noting New York State’s support of laudable policy that “natural
parents” provide the “positive, nurturing family relationships” and “normal family life in a permanent home” that
offers the “best opportunity for children to develop and thrive” and noting the “usual understanding of ‘family’
implies biological relationships”) (internal citations omitted); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The
rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man, and rights far
more precious . . . than property rights.”) (internal citations and quotations omitted); Prince v. Massachusetts, 321
U.S. 158, 166 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the
parents.”).
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1
is deeply rooted in this Nation’s history and tradition.” Moore v. City of E. Cleveland, Ohio, 431
2
U.S. 494, 503 (1977) (Powell, J., plurality opinion). The Court has indicated repeatedly that
3
“history and tradition” are the “source for ‘supplying . . . content to th[e] Constitutional
4
concept’” that biological family units are afforded additional protections under our nation’s laws.
5
Id. at 540 (citing Poe v. Ulman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). Thus, it is
6
and always has been the “‘traditions and (collective) conscience of our people,’” not the
7
“personal and private notions” of judges, that determine societal rights, including what marriage
8
is as an institution and who is entitled to participate in it. Griswold, 381 U.S. at 493 (citing
9
Snyder v. Commonwealth of Mass., 291 U.S. 97, 105 (1934)) (Goldberg, J., concurring).
10
In light of these decisions relying on the traditional understanding of marriage as only
11
between one man and one woman, I join Justice Black in the sentiment that “[o]ne of the most
12
effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the
13
crucial word or words of a constitutional guarantee another word or words, more or less flexible
14
and more or less restricted in meaning.” Griswold, 381 U.S. at 509 (Black, J., dissenting).
15
Marriage today, according to the federal government, means what it has always meant—a
16
holy union, essential to the survival of the species, between a man and a woman, the principal
17
purpose of which is to encourage responsible child rearing. Murphy set forth this understanding,
18
Baker v. Nelson reaffirmed it, and no Supreme Court case since Murphy gives me reason to
19
doubt that definition should not still stand.
20
Having found the interest in maintaining uniformity (including in the form of the 1996
21
status quo) legitimate, the means employed to advance this goal appear appropriate. As noted
22
above, BLAG argues that DOMA “ensures that similarly-situated couples [i.e., married same-sex
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1
couples and all unmarried couples] will have the same federal benefits [i.e., none] regardless of
2
which state they happen to live in, and avoids a confusing situation in which same-sex couples
3
would lose (or gain) federal marital status simply by moving between states with different
4
policies on recognition of same-sex marriages.” (BLAG Br. at 39–40 (emphasis added).) The
5
relevant discrimination, however, to be justified by BLAG is DOMA’s differential treatment of
6
married couples based on the sex of the persons constituting the couple. Married same-sex
7
couples are similarly-situated to married opposite-sex couples with respect to the relevant
8
characteristic at issue: marital status.
9
Windsor claims that the line DOMA draws fails rational basis review because the
10
purported justifications for the discrimination “make no sense” and “are impossible to credit” in
11
light of how the groups at issue are similarly situated. However, the regulation of federal
12
programs is emphatically the province of Congress. Having not previously defined the scope of
13
federal programs the way DOMA does should not forever bind Congress’s hands from doing so,
14
or make Congressional action nonsensical, especially when viewed in light of the clear and
15
unaltered judicial characterization of the nation’s historical understanding of marriage.
16
Windsor contends that DOMA creates complexity and establishes two tiers of married
17
couples in states that permit same-sex marriage. But the question of uniformity of marriage at
18
the state level is not DOMA’s concern. While the tension between state and federal policies in
19
this area are real, they are no greater than those that have existed among the states—tensions
20
which Windsor acknowledges reflect the essence of, and have endured under, our federal system.
21
I conclude, therefore, that it was rational for Congress to prefer uniform substantive
22
eligibility criteria for federal marital benefits for same-sex couples over “uniform” deference to
-34-
1
varying state criteria. Such a goal may be an exception to Congress’s general deference to the
2
states in the area of marriage (even in the face of contentious state-level variation) but this in no
3
way makes the legislative classification employed in pursuit of uniformity irrational in light of
4
the tremendous deference we afford acts of Congress under rational basis review. See Heller,
5
509 U.S. at 321 (“[C]ourts are compelled under rational-basis review to accept a legislature’s
6
generalizations even when there is an imperfect fit between means and ends.”).
7
When, as here, an issue involves policy choices, the Supreme Court has cautioned that
8
“the appropriate forum for their resolution in a democracy is the legislature.” Maher v. Roe, 432
9
U.S. 464, 479 (1977). DOMA rationally serves the legitimate government interest in
10
maintaining the status quo of the definition of marriage pending evolution of the issue in the
11
states.
12
*
13
*
*
Because the recognition of the biological connection of marriage to childrearing and the
14
pursuit of uniformity (including in the form of preserving the status quo) are sufficient to support
15
DOMA under rational basis review, I choose not to discuss the other asserted rationales. Beach
16
Commc’ns, 508 U.S. at 317. Nevertheless, I next address whether sexual orientation
17
classifications should, as a matter of first impression in this Circuit, be subject to heightened
18
scrutiny in an equal protection analysis.
19
VI.
20
Appropriate Level of Review for Sexual Orientation Discrimination
The Supreme Court has reserved heightened scrutiny for a small number of subject
21
classifications—principally race, alienage, nationality, sex, and illegitimacy. Heightened
22
scrutiny attaches in recognition that these traits have been used to impose, and are therefore
-35-
1
closely associated with, social inequality. Therefore, government conduct that employs these
2
classifications is suspect and must have more than a legitimate or merely permissible
3
justification.
4
The question of the appropriate level of scrutiny for laws that discriminate in respect of
5
the definition of marriage on the basis of sexual orientation is an issue of first impression in this
6
Circuit. See Able v. United States, 155 F.3d 628, 632 (2d Cir. 1998) (declining to consider, in
7
military context where judicial deference is “at its apogee,” the question whether sexual
8
orientation discrimination would trigger heightened scrutiny because challengers did not argue
9
for “any more onerous standard than the rational basis test” and therefore “the sole question
10
11
before us is whether the Act survives rational basis review”).
“[W]here individuals in the group affected by a law have distinguishing characteristics
12
relevant to interests the State has the authority to implement, the courts have been very reluctant,
13
as they should be in our federal system and with our respect for the separation of powers, to
14
closely scrutinize legislative choices as to whether, how, and to what extent those interests
15
should be pursued.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441–42
16
(1985). The Supreme Court has repeatedly rejected arguments by litigants and rulings by lower
17
courts that would grant heightened review to legislative distinctions based on mental handicap,
18
id. at 442–47, kinship, Lyng v. Castillo, 477 U.S. 635, 638 (1986), age, Mass. Bd. of Ret. v.
19
Murgia, 427 U.S. 307, 314 (1976), and poverty, San Antonio Indep. Sch. Dist. v. Rodriguez, 411
20
U.S. 1, 29 (1973).
21
The Supreme Court, despite having the opportunity to apply heightened review,
22
invalidated the provision of the Colorado Constitution challenged in Romer under rational basis
-36-
1
review. See 517 U.S. 620 (1996). That Romer was decided under the rational basis standard
2
without a need to employ a more exacting level of review does not mean that the question of the
3
appropriate tier of equal protection scrutiny was not before the Court. Indeed, although the
4
Romer plaintiffs “elected not to appeal” the lower court’s determination that sexual orientation
5
does not constitute a “suspect” or “quasi-suspect” classification, the Supreme Court “evidently
6
agree[d] that ‘rational basis’ . . . is the governing standard.” Romer, 517 U.S. at 641 n.1 (Scalia,
7
J., dissenting).
8
9
Until the majority’s opinion, DOMA had never been held by the Supreme Court or any
Circuit Court to involve a suspect or quasi-suspect classification. Indeed, in light of the Supreme
10
Court’s reluctance to apply heightened scrutiny to new categories of discrimination, and in
11
consideration of the fact that it declined to do so in Romer, eleven other circuits have also not
12
taken this step. See Massachusetts v. HHS, 682 F.3d at 9; Davis v. Prison Health Servs., 679
13
F.3d 433, 438 (6th Cir. 2012); Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012); Cook v.
14
Gates, 528 F.3d 42, 61–62 (1st Cir. 2008); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113
15
(10th Cir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Johnson
16
v. Johnson, 385 F.3d 503, 532 (5th Cir. 2004); Lofton v. Sec’y of Dep’t of Children & Family
17
Servs., 358 F.3d 804, 818 (11th Cir. 2004); Thomasson v. Perry, 80 F.3d 915, 927–28 (4th Cir.
18
1996); High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573–74 (9th Cir.
19
1990); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Woodward v. United States,
20
871 F.2d 1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987);
21
Nat’l Gay Task Force v. Bd. of Educ. of City of Okla. City, 729 F.2d 1270, 1273 (10th Cir. 1984),
22
aff’d by an equally divided court, 470 U.S. 903 (1985) (per curiam). In Massachusetts v. HHS,
-37-
1
the First Circuit rejected the application of strict and intermediate scrutiny, recognized that
2
DOMA satisfies rational basis review, and yet went on to create a novel “plus” level of scrutiny
3
applicable to DOMA, in contravention of the Supreme Court’s holding in Baker. Such judicial
4
impositions of new levels of review deprive the American people of further consideration of
5
DOMA through their democratically elected representatives.
6
Significantly, numerous Circuit Courts of Appeals decisions declining to extend
7
heightened scrutiny to sexual orientation discrimination post-date both Romer v. Evans and
8
Lawrence v. Texas. Windsor argues that the determinations made regarding the appropriate level
9
of scrutiny in decisions such as Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008) (rational-basis
10
review applies, and “Lawrence does not alter this conclusion”) and Witt v. Dep’t of Air Force,
11
527 F.3d 806, 821 (9th Cir. 2008) (Circuit precedent requiring rational-basis review “was not
12
disturbed by Lawrence, which declined to address equal protection”) are distinguishable because
13
the cases arose in a military context where judicial deference is “at its apogee.” See Able, 155
14
F.3d at 632. But as the voluminous authority cited above makes clear, see Section IV, supra,
15
whatever additional deference courts afford Congressional action in the military context, rational
16
basis review is, even in the civilian context, highly deferential to the legislature, not a mechanism
17
for judges to second guess properly enacted legislative judgments, and the “paradigm of
18
restraint.” See Beach Commc’ns, 508 U.S. at 314. See also Perry, 671 F.3d at 1080 n.13
19
(relying, in the civilian context, on rulings that declined to apply heightened scrutiny to sexual
20
orientation classifications in the military context). Indeed, the Department of Justice so
21
acknowledged last year—until it changed its constitutional position following the President’s
22
announcement of a change in policy.
-38-
1
Therefore, I would join these eleven circuits, driven not only by a reluctance to do that
2
which the Supreme Court itself has not undertaken when given the chance, but also out of
3
routine respect for extant precedent. Subjecting the federal definition of marriage to heightened
4
scrutiny would defy or, at least, call into question the continued validity of Baker, which we are
5
not empowered to do. Baker involved a law that prohibited same-sex marriage, and thus
6
discriminated on the basis of sexual orientation. Holding that sexual orientation merits
7
heightened scrutiny would be substantively inconsistent with Baker since (1) any legislative
8
action faces a high likelihood of invalidation under heightened scrutiny, and (2) it would be
9
curious to apply heightened scrutiny to a form of discrimination that does not raise a substantial
10
federal question of constitutional law. See Massachusetts v. HHS, 682 F.3d at 9 (“[T]o create
11
such a new suspect classification for same-sex relationships would have far-reaching
12
implications—in particular, by implying an overruling of Baker, which we are neither
13
empowered to do nor willing to predict.”). Any such development must come from the elected
14
representatives of the American people.12
12
Indeed, one elected representative—the President—has already taken steps to mitigate the harms visited upon
same-sex couples by DOMA. The President has issued a memorandum requiring all executive departments and
agencies to take steps, consistent with existing law, to extend benefits to the same-sex domestic partners of federal
employees, and where applicable, to the children of same-sex domestic partners of federal employees. See
Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees (June 20,
2010). The Office of Personnel Management (“OPM”) was directed to clarify that for purposes of employee
assistance programs, same-sex domestic partners and their children qualify as “family members.” In addition,
pursuant to a Presidential Memorandum Regarding Federal Benefits and Non-discrimination (June 17, 2009), OPM
issued regulations expanding the definition of “qualified relatives” to include same-sex domestic partners of eligible
federal employees in the federal long-term care insurance program. See 5 CFR 875.213 (June 1, 2010).
In Congress, efforts provide various types of federal benefits for same-sex domestic partners—such as health
insurance, life insurance, pensions, and other employment-related benefits—are routinely introduced, if
unsuccessful. See, e.g., S. 2521, 110th Cong. (2007); H.R. 4838, 110th Cong. (2007) (bills died in committee); S.
1102, 111th Cong. (2009); H.R. 2517, 111th Cong. (2009) (no action taken on either version after being reported out
-39-
1
Whatever the merits of doing so in a context other than the marital union, I conclude that,
2
in respect of the unique institution of marriage it would be imprudent to announce a new rule
3
under which sexual orientation is subject to heightened scrutiny.
4
5
6
CONCLUSION
For the foregoing reasons, I would hold that per Baker, the legislative distinction drawn
by DOMA satisfies rational basis review and is therefore constitutional.
7
Whether connections between marriage, procreation, and biological offspring recognized
8
by DOMA and the uniformity it imposes are to continue is not for the courts to decide, but rather
9
an issue for the American people and their elected representatives to settle through the
10
democratic process. Courts should not intervene where there is a robust political debate because
11
doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling
12
on a vigorous debate. Courts should not entertain claims like those advanced here, as we can
13
intervene in this robust debate only to cut it short.
14
I respectfully dissent from the majority opinion to the extent it holds otherwise.
of committees); S. 1910, 112th Cong. (2011) (reported out of committee); H.R. 3485, 112th Cong. (2011) (remains
in committee).
-40-
Litigators Making a Difference
Syllabus:
Lawrence Et Al v. Texas
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
(Slip Opinion)
OCTOBER TERM, 2002
1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LAWRENCE ET AL. v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS,
FOURTEENTH DISTRICT
No. 02–102.
Argued March 26, 2003—Decided June 26, 2003
Responding to a reported weapons disturbance in a private residence,
Houston police entered petitioner Lawrence’s apartment and saw him
and another adult man, petitioner Garner, engaging in a private,
consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two
persons of the same sex to engage in certain intimate sexual conduct.
In affirming, the State Court of Appeals held, inter alia, that the
statute was not unconstitutional under the Due Process Clause of the
Fourteenth Amendment. The court considered Bowers v. Hardwick,
478 U. S. 186, controlling on that point.
Held: The Texas statute making it a crime for two persons of the same
sex to engage in certain intimate sexual conduct violates the Due
Process Clause. Pp. 3–18.
(a) Resolution of this case depends on whether petitioners were free
as adults to engage in private conduct in the exercise of their liberty
under the Due Process Clause. For this inquiry the Court deems it
necessary to reconsider its Bowers holding. The Bowers Court’s initial substantive statement—“The issue presented is whether the
Federal Constitution confers a fundamental right upon homosexuals
to engage in sodomy . . . ,” 478 U. S., at 190—discloses the Court’s
failure to appreciate the extent of the liberty at stake. To say that
the issue in Bowers was simply the right to engage in certain sexual
conduct demeans the claim the individual put forward, just as it
would demean a married couple were it said that marriage is just
about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a
particular sexual act, their penalties and purposes have more farreaching consequences, touching upon the most private human con-
2
LAWRENCE v. TEXAS
Syllabus
duct, sexual behavior, and in the most private of places, the home.
They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons
to choose without being punished as criminals. The liberty protected
by the Constitution allows homosexual persons the right to choose to
enter upon relationships in the confines of their homes and their own
private lives and still retain their dignity as free persons. Pp. 3–6.
(b) Having misapprehended the liberty claim presented to it, the
Bowers Court stated that proscriptions against sodomy have ancient
roots. 478 U. S., at 192. It should be noted, however, that there is no
longstanding history in this country of laws directed at homosexual
conduct as a distinct matter. Early American sodomy laws were not
directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and
women or men and men. Moreover, early sodomy laws seem not to
have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against
those who could not or did not consent: relations between men and
minor girls or boys, between adults involving force, between adults
implicating disparity in status, or between men and animals. The
longstanding criminal prohibition of homosexual sodomy upon which
Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of
prosecuting acts because of their homosexual character. Far from
possessing “ancient roots,” ibid., American laws targeting same-sex
couples did not develop until the last third of the 20th century. Even
now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers
are more complex than the majority opinion and the concurring
opinion by Chief Justice Burger there indicated. They are not without doubt and, at the very least, are overstated. The Bowers Court
was, of course, making the broader point that for centuries there
have been powerful voices to condemn homosexual conduct as immoral, but this Court’s obligation is to define the liberty of all, not to
mandate its own moral code, Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 850. The Nation’s laws and traditions in the past
half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.
See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 6–12.
(c) Bowers’ deficiencies became even more apparent in the years
following its announcement. The 25 States with laws prohibiting the
conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States,
Cite as: 539 U. S. ____ (2003)
3
Syllabus
including Texas, that still proscribe sodomy (whether for same-sex or
heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851—
which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education—and Romer v. Evans, 517
U. S. 620, 624—which struck down class-based legislation directed at
homosexuals—cast Bowers’ holding into even more doubt. The
stigma the Texas criminal statute imposes, moreover, is not trivial.
Although the offense is but a minor misdemeanor, it remains a
criminal offense with all that imports for the dignity of the persons
charged, including notation of convictions on their records and on job
application forms, and registration as sex offenders under state law.
Where a case’s foundations have sustained serious erosion, criticism
from other sources is of greater significance. In the United States,
criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a
wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual
conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow
more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828. Bowers’ holding has
not induced detrimental reliance of the sort that could counsel
against overturning it once there are compelling reasons to do so.
Casey, supra, at 855–856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12–17.
(d) Bowers’ rationale does not withstand careful analysis. In his
dissenting opinion in Bowers JUSTICE STEVENS concluded that (1) the
fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice, and (2) individual decisions concerning the
intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That
analysis should have controlled Bowers, and it controls here. Bowers
was not correct when it was decided, is not correct today, and is
hereby overruled. This case does not involve minors, persons who
might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults
who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the
4
LAWRENCE v. TEXAS
Syllabus
Due Process Clause gives them the full right to engage in private
conduct without government intervention. Casey, supra, at 847. The
Texas statute furthers no legitimate state interest which can justify
its intrusion into the individual’s personal and private life. Pp. 17–
18.
41 S. W. 3d 349, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which STEVENS,
SOUTER, GINSBURG, and BREYER, JJ., joined. O’CONNOR, J., filed an
opinion concurring in the judgment. SCALIA, J., filed a dissenting
opinion, in which REHNQUIST, C. J., and THOMAS, J., joined. THOMAS, J.,
filed a dissenting opinion.
Cite as: 539 U. S. ____ (2003)
1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 02–102
_________________
JOHN GEDDES LAWRENCE AND TYRON GARNER,
PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT
[June 26, 2003]
JUSTICE KENNEDY delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In
our tradition the State is not omnipresent in the home.
And there are other spheres of our lives and existence,
outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds.
Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate
conduct. The instant case involves liberty of the person
both in its spatial and more transcendent dimensions.
I
The question before the Court is the validity of a Texas
statute making it a crime for two persons of the same sex
to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police
Department were dispatched to a private residence in
response to a reported weapons disturbance. They entered
an apartment where one of the petitioners, John Geddes
Lawrence, resided. The right of the police to enter does
not seem to have been questioned. The officers observed
2
LAWRENCE v. TEXAS
Opinion of the Court
Lawrence and another man, Tyron Garner, engaging in a
sexual act. The two petitioners were arrested, held in
custody over night, and charged and convicted before a
Justice of the Peace.
The complaints described their crime as “deviate sexual
intercourse, namely anal sex, with a member of the same
sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. §21.06(a) (2003).
It provides: “A person commits an offense if he engages in
deviate sexual intercourse with another individual of the
same sex.” The statute defines “[d]eviate sexual intercourse” as follows:
“(A) any contact between any part of the genitals of
one person and the mouth or anus of another person;
or
“(B) the penetration of the genitals or the anus of another person with an object.” §21.01(1).
The petitioners exercised their right to a trial de novo in
Harris County Criminal Court. They challenged the
statute as a violation of the Equal Protection Clause of the
Fourteenth Amendment and of a like provision of the
Texas Constitution. Tex. Const., Art. 1, §3a. Those contentions were rejected. The petitioners, having entered a
plea of nolo contendere, were each fined $200 and assessed
court costs of $141.25. App. to Pet. for Cert. 107a–110a.
The Court of Appeals for the Texas Fourteenth District
considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. After hearing the
case en banc the court, in a divided opinion, rejected the
constitutional arguments and affirmed the convictions. 41
S. W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in
Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling
on the federal due process aspect of the case. Bowers then
Cite as: 539 U. S. ____ (2003)
3
Opinion of the Court
being authoritative, this was proper.
We granted certiorari, 537 U. S. 1044 (2002), to consider
three questions:
“1. Whether Petitioners’ criminal convictions under
the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not
identical behavior by different-sex couples—violate
the Fourteenth Amendment guarantee of equal protection of laws?
“2. Whether Petitioners’ criminal convictions for adult
consensual sexual intimacy in the home violate their
vital interests in liberty and privacy protected by the
Due Process Clause of the Fourteenth Amendment?
“3. Whether Bowers v. Hardwick, 478 U. S. 186
(1986), should be overruled?” Pet. for Cert. i.
The petitioners were adults at the time of the alleged
offense. Their conduct was in private and consensual.
II
We conclude the case should be resolved by determining
whether the petitioners were free as adults to engage in
the private conduct in the exercise of their liberty under
the Due Process Clause of the Fourteenth Amendment to
the Constitution. For this inquiry we deem it necessary to
reconsider the Court’s holding in Bowers.
There are broad statements of the substantive reach of
liberty under the Due Process Clause in earlier cases,
including Pierce v. Society of Sisters, 268 U. S. 510 (1925),
and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most
pertinent beginning point is our decision in Griswold v.
Connecticut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives.
The Court described the protected interest as a right to
4
LAWRENCE v. TEXAS
Opinion of the Court
privacy and placed emphasis on the marriage relation and
the protected space of the marital bedroom. Id., at 485.
After Griswold it was established that the right to make
certain decisions regarding sexual conduct extends beyond
the marital relationship. In Eisenstadt v. Baird, 405 U. S.
438 (1972), the Court invalidated a law prohibiting the
distribution of contraceptives to unmarried persons. The
case was decided under the Equal Protection Clause, id.,
at 454; but with respect to unmarried persons, the Court
went on to state the fundamental proposition that the law
impaired the exercise of their personal rights, ibid. It
quoted from the statement of the Court of Appeals finding
the law to be in conflict with fundamental human rights,
and it followed with this statement of its own:
“It is true that in Griswold the right of privacy in
question inhered in the marital relationship. . . . 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 affecting a person as the decision whether
to bear or beget a child.” Id., at 453.
The opinions in Griswold and Eisenstadt were part of
the background for the decision in Roe v. Wade, 410 U. S.
113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws
of other States were affected as well. Although the Court
held the woman’s rights were not absolute, her right to
elect an abortion did have real and substantial protection
as an exercise of her liberty under the Due Process Clause.
The Court cited cases that protect spatial freedom and
cases that go well beyond it. Roe recognized the right of a
woman to make certain fundamental decisions affecting
her destiny and confirmed once more that the protection of
liberty under the Due Process Clause has a substantive
dimension of fundamental significance in defining the
Cite as: 539 U. S. ____ (2003)
5
Opinion of the Court
rights of the person.
In Carey v. Population Services Int’l, 431 U. S. 678 (1977),
the Court confronted a New York law forbidding sale or
distribution of contraceptive devices to persons under 16
years of age. Although there was no single opinion for the
Court, the law was invalidated. Both Eisenstadt and
Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This
was the state of the law with respect to some of the most
relevant cases when the Court considered Bowers v.
Hardwick.
The facts in Bowers had some similarities to the instant
case. A police officer, whose right to enter seems not to
have been in question, observed Hardwick, in his own
bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the
Georgia statute prohibited the conduct whether or not the
participants were of the same sex, while the Texas statute,
as we have seen, applies only to participants of the same
sex. Hardwick was not prosecuted, but he brought an
action in federal court to declare the state statute invalid.
He alleged he was a practicing homosexual and that the
criminal prohibition violated rights guaranteed to him by
the Constitution. The Court, in an opinion by Justice
White, sustained the Georgia law. Chief Justice Burger
and Justice Powell joined the opinion of the Court and
filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined
by Brennan, Marshall, and STEVENS, JJ.); id., at 214
(opinion of STEVENS, J., joined by Brennan and Marshall,
JJ.).
The Court began its substantive discussion in Bowers as
follows: “The issue presented is whether the Federal Con-
6
LAWRENCE v. TEXAS
Opinion of the Court
stitution confers a fundamental right upon homosexuals to
engage in sodomy and hence invalidates the laws of the
many States that still make such conduct illegal and have
done so for a very long time.” Id., at 190. That statement,
we now conclude, discloses the Court’s own failure to
appreciate the extent of the liberty at stake. To say that
the issue in Bowers was simply the right to engage in
certain sexual conduct demeans the claim the individual
put forward, just as it would demean a married couple
were it to be said marriage is simply about the right to
have sexual intercourse. The laws involved in Bowers and
here are, to be sure, statutes that purport to do no more
than prohibit a particular sexual act. Their penalties and
purposes, though, have more far-reaching consequences,
touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home. The
statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts
by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person
or abuse of an institution the law protects. It suffices for
us to acknowledge that adults may choose to enter upon
this relationship in the confines of their homes and their
own private lives and still retain their dignity as free
persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but
one element in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether
there is a fundamental right to engage in consensual
sodomy, the Bowers Court said: “Proscriptions against
Cite as: 539 U. S. ____ (2003)
7
Opinion of the Court
that conduct have ancient roots.” Id., at 192. In academic
writings, and in many of the scholarly amicus briefs filed
to assist the Court in this case, there are fundamental
criticisms of the historical premises relied upon by the
majority and concurring opinions in Bowers. Brief for
Cato Institute as Amicus Curiae 16–17; Brief for American
Civil Liberties Union et al. as Amici Curiae 15–21; Brief
for Professors of History et al. as Amici Curiae 3–10. We
need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations
counsel against adopting the definitive conclusions upon
which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial
times there were prohibitions of sodomy derived from the
English criminal laws passed in the first instance by the
Reformation Parliament of 1533. The English prohibition
was understood to include relations between men and
women as well as relations between men and men. See,
e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718)
(interpreting “mankind” in Act of 1533 as including
women and girls).
Nineteenth-century commentators
similarly read American sodomy, buggery, and crimeagainst-nature statutes as criminalizing certain relations
between men and women and between men and men. See,
e.g., 2 J. Bishop, Criminal Law §1028 (1858); 2 J. Chitty,
Criminal Law 47–50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May,
The Law of Crimes §203 (2d ed. 1893). The absence of
legal prohibitions focusing on homosexual conduct may be
explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of
person did not emerge until the late 19th century. See,
e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J.
D’Emilio & E. Freedman, Intimate Matters: A History of
8
LAWRENCE v. TEXAS
Opinion of the Court
Sexuality in America 121 (2d ed. 1997) (“The modern
terms homosexuality and heterosexuality do not apply to
an era that had not yet articulated these distinctions”).
Thus early American sodomy laws were not directed at
homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not
suggest approval of homosexual conduct. It does tend to
show that this particular form of conduct was not thought
of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been
enforced against consenting adults acting in private. A
substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as
in the case of a minor or the victim of an assault. As to
these, one purpose for the prohibitions was to ensure there
would be no lack of coverage if a predator committed a
sexual assault that did not constitute rape as defined by
the criminal law. Thus the model sodomy indictments
presented in a 19th-century treatise, see 2 Chitty, supra,
at 49, addressed the predatory acts of an adult man
against a minor girl or minor boy. Instead of targeting
relations between consenting adults in private, 19thcentury sodomy prosecutions typically involved relations
between men and minor girls or minor boys, relations
between adults involving force, relations between adults
implicating disparity in status, or relations between men
and animals.
To the extent that there were any prosecutions for the
acts in question, 19th-century evidence rules imposed a
burden that would make a conviction more difficult to
obtain even taking into account the problems always
inherent in prosecuting consensual acts committed in
private. Under then-prevailing standards, a man could
not be convicted of sodomy based upon testimony of a
Cite as: 539 U. S. ____ (2003)
9
Opinion of the Court
consenting partner, because the partner was considered
an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a
minor, and therefore incapable of consent. See, e.g., F.
Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton,
Criminal Law 512 (8th ed. 1880). The rule may explain in
part the infrequency of these prosecutions. In all events
that infrequency makes it difficult to say that society
approved of a rigorous and systematic punishment of the
consensual acts committed in private and by adults. The
longstanding criminal prohibition of homosexual sodomy
upon which the Bowers decision placed such reliance is as
consistent with a general condemnation of nonprocreative
sex as it is with an established tradition of prosecuting
acts because of their homosexual character.
The policy of punishing consenting adults for private
acts was not much discussed in the early legal literature.
We can infer that one reason for this was the very private
nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was
public criticism of homosexuals as such and an insistence
that the criminal laws be enforced to discourage their
practices. But far from possessing “ancient roots,” Bowers,
478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of
consensual, homosexual sodomy between adults for the
years 1880–1995 are not always clear in the details, but a
significant number involved conduct in a public place. See
Brief for American Civil Liberties Union et al. as Amici
Curiae 14–15, and n. 18.
It was not until the 1970’s that any State singled out
same-sex relations for criminal prosecution, and only nine
States have done so. See 1977 Ark. Gen. Acts no. 828;
1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977
Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev.
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Opinion of the Court
Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex.
Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105
(Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of
these States did not adhere to the policy of suppressing
homosexual conduct. Over the course of the last decades,
States with same-sex prohibitions have moved toward
abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600,
80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433,
942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d
250 (Tenn. App. 1996); Commonwealth v. Wasson, 842
S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518
(repealing Nev. Rev. Stat. §201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the
concurring opinion by Chief Justice Burger indicate.
Their historical premises are not without doubt and, at the
very least, are overstated.
It must be acknowledged, of course, that the Court in
Bowers was making the broader point that for centuries
there have been powerful voices to condemn homosexual
conduct as immoral. The condemnation has been shaped
by religious beliefs, conceptions of right and acceptable
behavior, and respect for the traditional family. For many
persons these are not trivial concerns but profound and
deep convictions accepted as ethical and moral principles
to which they aspire and which thus determine the course
of their lives. These considerations do not answer the
question before us, however. The issue is whether the
majority may use the power of the State to enforce these
views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to
mandate our own moral code.” Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).
Chief Justice Burger joined the opinion for the Court in
Bowers and further explained his views as follows: “Deci-
Cite as: 539 U. S. ____ (2003)
11
Opinion of the Court
sions of individuals relating to homosexual conduct have
been subject to state intervention throughout the history
of Western civilization. Condemnation of those practices
is firmly rooted in Judeao-Christian moral and ethical
standards.” 478 U. S., at 196. As with Justice White’s
assumptions about history, scholarship casts some doubt
on the sweeping nature of the statement by Chief Justice
Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick
and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all
events we think that our laws and traditions in the past
half century are of most relevance here. These references
show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct
their private lives in matters pertaining to sex. “[H]istory
and tradition are the starting point but not in all cases the
ending point of the substantive due process inquiry.”
County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998)
(KENNEDY, J., concurring).
This emerging recognition should have been apparent
when Bowers was decided. In 1955 the American Law
Institute promulgated the Model Penal Code and made
clear that it did not recommend or provide for “criminal
penalties for consensual sexual relations conducted in
private.” ALI, Model Penal Code §213.2, Comment 2,
p. 372 (1980). It justified its decision on three grounds:
(1) The prohibitions undermined respect for the law by
penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and
(3) the laws were arbitrarily enforced and thus invited the
danger of blackmail. ALI, Model Penal Code, Commentary 277–280 (Tent. Draft No. 4, 1955). In 1961 Illinois
changed its laws to conform to the Model Penal Code.
Other States soon followed. Brief for Cato Institute as
Amicus Curiae 15–16.
In Bowers the Court referred to the fact that before 1961
12
LAWRENCE v. TEXAS
Opinion of the Court
all 50 States had outlawed sodomy, and that at the time of
the Court’s decision 24 States and the District of Columbia
had sodomy laws. 478 U. S., at 192–193. Justice Powell
pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to
enforce its law for decades. Id., at 197–198, n. 2 (“The
history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”).
The sweeping references by Chief Justice Burger to the
history of Western civilization and to Judeo-Christian
moral and ethical standards did not take account of other
authorities pointing in an opposite direction. A committee
advising the British Parliament recommended in 1957
repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual
Offenses and Prostitution (1963). Parliament enacted the
substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights
considered a case with parallels to Bowers and to today’s
case. An adult male resident in Northern Ireland alleged
he was a practicing homosexual who desired to engage in
consensual homosexual conduct. The laws of Northern
Ireland forbade him that right. He alleged that he had
been questioned, his home had been searched, and he
feared criminal prosecution. The court held that the laws
proscribing the conduct were invalid under the European
Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all
countries that are members of the Council of Europe (21
nations then, 45 nations now), the decision is at odds with
the premise in Bowers that the claim put forward was
insubstantial in our Western civilization.
In our own constitutional system the deficiencies in
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13
Opinion of the Court
Bowers became even more apparent in the years following
its announcement. The 25 States with laws prohibiting
the relevant conduct referenced in the Bowers decision are
reduced now to 13, of which 4 enforce their laws only
against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with
respect to consenting adults acting in private. The State
of Texas admitted in 1994 that as of that date it had not
prosecuted anyone under those circumstances. State v.
Morales, 869 S. W. 2d 941, 943.
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court
reaffirmed the substantive force of the liberty protected by
the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional
protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child
rearing, and education. Id., at 851. In explaining the
respect the Constitution demands for the autonomy of the
person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices
central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define
one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about
these matters could not define the attributes of personhood were they formed under compulsion of the
State.” Ibid.
Persons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do. The
decision in Bowers would deny them this right.
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LAWRENCE v. TEXAS
Opinion of the Court
The second post-Bowers case of principal relevance is
Romer v. Evans, 517 U. S. 620 (1996). There the Court
struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer
invalidated an amendment to Colorado’s constitution
which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal
quotation marks omitted), and deprived them of protection
under state antidiscrimination laws. We concluded that
the provision was “born of animosity toward the class of
persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case, counsel for the
petitioners and some amici contend that Romer provides
the basis for declaring the Texas statute invalid under the
Equal Protection Clause. That is a tenable argument, but
we conclude the instant case requires us to address
whether Bowers itself has continuing validity. Were we to
hold the statute invalid under the Equal Protection Clause
some might question whether a prohibition would be valid
if drawn differently, say, to prohibit the conduct both
between same-sex and different-sex participants.
Equality of treatment and the due process right to
demand respect for conduct protected by the substantive
guarantee of liberty are linked in important respects, and
a decision on the latter point advances both interests. If
protected conduct is made criminal and the law which
does so remains unexamined for its substantive validity,
its stigma might remain even if it were not enforceable as
drawn for equal protection reasons. When homosexual
conduct is made criminal by the law of the State, that
declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and
in the private spheres. The central holding of Bowers has
been brought in question by this case, and it should be
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15
Opinion of the Court
addressed. Its continuance as precedent demeans the
lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is
not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system.
Still, it remains a criminal offense with all that imports
for the dignity of the persons charged. The petitioners will
bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to
state laws requiring the registration of sex offenders.
Smith v. Doe, 538 U. S. __ (2003); Connecticut Dept. of
Public Safety v. Doe, 538 U. S. 1 (2003). We are advised
that if Texas convicted an adult for private, consensual
homosexual conduct under the statute here in question
the convicted person would come within the registration
laws of a least four States were he or she to be subject to
their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho
Code §§18–8301 to 18–8326 (Cum. Supp. 2002); La. Code
Crim. Proc. Ann., §§15:540–15:549 (West 2003); Miss.
Code Ann. §§45–33–21 to 45–33–57 (Lexis 2003); S. C.
Code Ann. §§23–3–400 to 23–3–490 (West 2002)). This
underscores the consequential nature of the punishment
and the state-sponsored condemnation attendant to the
criminal prohibition. Furthermore, the Texas criminal
conviction carries with it the other collateral consequences
always following a conviction, such as notations on job
application forms, to mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When
our precedent has been thus weakened, criticism from
other sources is of greater significance. In the United
States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not
just as to its historical assumptions. See, e.g., C. Fried,
Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81–84 (1991); R. Posner, Sex and Reason
16
LAWRENCE v. TEXAS
Opinion of the Court
341–350 (1992). The courts of five different States have
declined to follow it in interpreting provisions in their own
state constitutions parallel to the Due Process Clause of
the Fourteenth Amendment, see Jegley v. Picado, 349 Ark.
600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327,
510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont.
433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926
S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers relied on values we share with a
wider civilization, it should be noted that the reasoning
and holding in Bowers have been rejected elsewhere. The
European Court of Human Rights has followed not Bowers
but its own decision in Dudgeon v. United Kingdom. See
P. G. & J. H. v. United Kingdom, App. No. 00044787/98,
¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus,
259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct.
H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.
See Brief for Mary Robinson et al. as Amici Curiae 11–12.
The right the petitioners seek in this case has been accepted as an integral part of human freedom in many
other countries. There has been no showing that in this
country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect
accorded to the judgments of the Court and to the stability
of the law. It is not, however, an inexorable command.
Payne v. Tennessee, 501 U. S. 808, 828 (1991) (“Stare
decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence
to the latest decision’ ”) (quoting Helvering v. Hallock, 309
U. S. 106, 119 (1940))). In Casey we noted that when a
Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance
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17
Opinion of the Court
on the existence of that liberty cautions with particular
strength against reversing course. 505 U. S., at 855–856;
see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”). The holding in Bowers, however, has not
induced detrimental reliance comparable to some instances where recognized individual rights are involved.
Indeed, there has been no individual or societal reliance
on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do
so. Bowers itself causes uncertainty, for the precedents
before and after its issuance contradict its central holding.
The rationale of Bowers does not withstand careful
analysis. In his dissenting opinion in Bowers JUSTICE
STEVENS came to these conclusions:
“Our prior cases make two propositions abundantly
clear. First, the fact that the governing majority in a
State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law
prohibiting the practice; neither history nor tradition
could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by
married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the
Due Process Clause of the Fourteenth Amendment.
Moreover, this protection extends to intimate choices
by unmarried as well as married persons.” 478 U. S.,
at 216 (footnotes and citations omitted).
JUSTICE STEVENS’ analysis, in our view, should have been
controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is
not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not
involve persons who might be injured or coerced or who
18
LAWRENCE v. TEXAS
Opinion of the Court
are situated in relationships where consent might not
easily be refused. It does not involve public conduct or
prostitution. It does not involve whether the government
must give formal recognition to any relationship that
homosexual persons seek to enter. The case does involve
two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for
their private lives. The State cannot demean their existence or control their destiny by making their private
sexual conduct a crime. Their right to liberty under the
Due Process Clause gives them the full right to engage in
their conduct without intervention of the government. “It
is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter.”
Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into
the personal and private life of the individual.
Had those who drew and ratified the Due Process
Clauses of the Fifth Amendment or the Fourteenth
Amendment known the components of liberty in its manifold possibilities, they might have been more specific.
They did not presume to have this insight. They knew
times can blind us to certain truths and later generations
can see that laws once thought necessary and proper in
fact serve only to oppress. As the Constitution endures,
persons in every generation can invoke its principles in
their own search for greater freedom.
The judgment of the Court of Appeals for the Texas
Fourteenth District is reversed, and the case is remanded
for further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 539 U. S. ____ (2003)
1
O’CONNOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 02–102
_________________
JOHN GEDDES LAWRENCE AND TYRON GARNER,
PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT
[June 26, 2003]
JUSTICE O’CONNOR, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478
U. S. 186 (1986). I joined Bowers, and do not join the
Court in overruling it. Nevertheless, I agree with the
Court that Texas’ statute banning same-sex sodomy is
unconstitutional. See Tex. Penal Code Ann. §21.06 (2003).
Rather than relying on the substantive component of the
Fourteenth Amendment’s Due Process Clause, as the
Court does, I base my conclusion on the Fourteenth
Amendment’s Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly
situated should be treated alike.” Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 439 (1985); see also
Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, “legislation is presumed to
be valid and will be sustained if the classification drawn
by the statute is rationally related to a legitimate state
interest.” Cleburne v. Cleburne Living Center, supra, at
440; see also Department of Agriculture v. Moreno, 413
U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632–
633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11–12 (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that
2
LAWRENCE v. TEXAS
O’CONNOR, J., concurring in judgment
even improvident decisions will eventually be rectified by
the democratic processes.” Cleburne v. Cleburne Living
Center, supra, at 440; see also Fitzgerald v. Racing Assn.
of Central Iowa, ante, p. ___; Williamson v. Lee Optical of
Okla., Inc., 348 U. S. 483 (1955). We have consistently
held, however, that some objectives, such as “a bare . . .
desire to harm a politically unpopular group,” are not
legitimate state interests. Department of Agriculture v.
Moreno, supra, at 534. See also Cleburne v. Cleburne
Living Center, supra, at 446–447; Romer v. Evans, supra,
at 632. When a law exhibits such a desire to harm a
politically unpopular group, we have applied a more
searching form of rational basis review to strike down
such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review
to hold a law unconstitutional under the Equal Protection
Clause where, as here, the challenged legislation inhibits
personal relationships. In Department of Agriculture v.
Moreno, for example, we held that a law preventing those
households containing an individual unrelated to any
other member of the household from receiving food stamps
violated equal protection because the purpose of the law
was to “ ‘discriminate against hippies.’ ” 413 U. S., at 534.
The asserted governmental interest in preventing food
stamp fraud was not deemed sufficient to satisfy rational
basis review. Id., at 535–538. In Eisenstadt v. Baird, 405
U. S. 438, 447–455 (1972), we refused to sanction a law
that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to
single persons. Likewise, in Cleburne v. Cleburne Living
Center, supra, we held that it was irrational for a State to
require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity
houses and apartment buildings—did not have to obtain
such a permit. And in Romer v. Evans, we disallowed a
state statute that “impos[ed] a broad and undifferentiated
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3
O’CONNOR, J., concurring in judgment
disability on a single named group”—specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees
that if these cases have stare decisis effect, Texas’ sodomy
law would not pass scrutiny under the Equal Protection
Clause, regardless of the type of rational basis review that
we apply. See post, at 17–18 (opinion of SCALIA, J.).
The statute at issue here makes sodomy a crime only if
a person “engages in deviate sexual intercourse with
another individual of the same sex.” Tex. Penal Code Ann.
§21.06(a) (2003). Sodomy between opposite-sex partners,
however, is not a crime in Texas. That is, Texas treats the
same conduct differently based solely on the participants.
Those harmed by this law are people who have a same-sex
sexual orientation and thus are more likely to engage in
behavior prohibited by §21.06.
The Texas statute makes homosexuals unequal in the
eyes of the law by making particular conduct—and only
that conduct—subject to criminal sanction. It appears
that prosecutions under Texas’ sodomy law are rare. See
State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting
in 1994 that §21.06 “has not been, and in all probability
will not be, enforced against private consensual conduct
between adults”). This case shows, however, that prosecutions under §21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the
consequences of conviction are not. As the Court notes,
see ante, at 15, petitioners’ convictions, if upheld, would
disqualify them from or restrict their ability to engage in a
variety of professions, including medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code Ann.
§164.051(a)(2)(B) (2003 Pamphlet) (physician); §451.251
(a)(1) (athletic trainer); §1053.252(2) (interior designer).
Indeed, were petitioners to move to one of four States,
their convictions would require them to register as sex
offenders to local law enforcement. See, e.g., Idaho Code
§18–8304 (Cum. Supp. 2002); La. Stat. Ann. §15:542 (West
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LAWRENCE v. TEXAS
O’CONNOR, J., concurring in judgment
Cum. Supp. 2003); Miss. Code Ann. §45–33–25 (West
2003); S. C. Code Ann. §23–3–430 (West Cum. Supp.
2002); cf. ante, at 15.
And the effect of Texas’ sodomy law is not just limited to
the threat of prosecution or consequence of conviction.
Texas’ sodomy law brands all homosexuals as criminals,
thereby making it more difficult for homosexuals to be
treated in the same manner as everyone else. Indeed,
Texas itself has previously acknowledged the collateral
effects of the law, stipulating in a prior challenge to this
action that the law “legally sanctions discrimination
against [homosexuals] in a variety of ways unrelated to
the criminal law,” including in the areas of “employment,
family issues, and housing.” State v. Morales, 826 S. W.
2d 201, 203 (Tex. App. 1992).
Texas attempts to justify its law, and the effects of the
law, by arguing that the statute satisfies rational basis
review because it furthers the legitimate governmental
interest of the promotion of morality. In Bowers, we held
that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We
rejected the argument that no rational basis existed to
justify the law, pointing to the government’s interest in
promoting morality. 478 U. S., at 196. The only question
in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a
right to engage in homosexual sodomy. Id., at 188, n. 2.
Bowers did not hold that moral disapproval of a group is a
rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is
not punished.
This case raises a different issue than Bowers: whether,
under the Equal Protection Clause, moral disapproval is a
legitimate state interest to justify by itself a statute that
bans homosexual sodomy, but not heterosexual sodomy. It
is not. Moral disapproval of this group, like a bare desire
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5
O’CONNOR, J., concurring in judgment
to harm the group, is an interest that is insufficient to
satisfy rational basis review under the Equal Protection
Clause. See, e.g., Department of Agriculture v. Moreno,
supra, at 534; Romer v. Evans, 517 U. S., at 634–635.
Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law
that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause
because legal classifications must not be “drawn for the
purpose of disadvantaging the group burdened by the
law.” Id., at 633. Texas’ invocation of moral disapproval
as a legitimate state interest proves nothing more than
Texas’ desire to criminalize homosexual sodomy. But the
Equal Protection Clause prevents a State from creating “a
classification of persons undertaken for its own sake.” Id.,
at 635. And because Texas so rarely enforces its sodomy
law as applied to private, consensual acts, the law serves
more as a statement of dislike and disapproval against
homosexuals than as a tool to stop criminal behavior. The
Texas sodomy law “raise[s] the inevitable inference that
the disadvantage imposed is born of animosity toward the
class of persons affected.” Id., at 634.
Texas argues, however, that the sodomy law does not
discriminate against homosexual persons. Instead, the
State maintains that the law discriminates only against
homosexual conduct. While it is true that the law applies
only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.
Under such circumstances, Texas’ sodomy law is targeted
at more than conduct. It is instead directed toward gay
persons as a class. “After all, there can hardly be more
palpable discrimination against a class than making the
conduct that defines the class criminal.” Id., at 641
(SCALIA, J., dissenting) (internal quotation marks omit-
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LAWRENCE v. TEXAS
O’CONNOR, J., concurring in judgment
ted). When a State makes homosexual conduct criminal,
and not “deviate sexual intercourse” committed by persons
of different sexes, “that declaration in and of itself is an
invitation to subject homosexual persons to discrimination
both in the public and in the private spheres.” Ante, at 14.
Indeed, Texas law confirms that the sodomy statute is
directed toward homosexuals as a class. In Texas, calling
a person a homosexual is slander per se because the word
“homosexual” “impute[s] the commission of a crime.”
Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310
(CA5 1997) (applying Texas law); see also Head v. Newton,
596 S. W. 2d 209, 210 (Tex. App. 1980). The State has
admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State
v. Morales, 826 S. W. 2d, at 202–203 (“[T]he statute
brands lesbians and gay men as criminals and thereby
legally sanctions discrimination against them in a variety
of ways unrelated to the criminal law”). Texas’ sodomy
law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law.
See ibid. In Romer v. Evans, we refused to sanction a law
that singled out homosexuals “for disfavored legal status.”
517 U. S., at 633. The same is true here. The Equal
Protection Clause “ ‘neither knows nor tolerates classes
among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson,
163 U. S. 537, 559 (1896) (Harlan, J. dissenting)).
A State can of course assign certain consequences to a
violation of its criminal law. But the State cannot single
out one identifiable class of citizens for punishment that
does not apply to everyone else, with moral disapproval as
the only asserted state interest for the law. The Texas
sodomy statute subjects homosexuals to “a lifelong penalty
and stigma. A legislative classification that threatens the
creation of an underclass . . . cannot be reconciled with”
the Equal Protection Clause. Plyler v. Doe, 457 U. S., at
239 (Powell, J., concurring).
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7
O’CONNOR, J., concurring in judgment
Whether a sodomy law that is neutral both in effect and
application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886),
would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I
am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the
private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our
democratic society. In the words of Justice Jackson:
“The framers of the Constitution knew, and we should
not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law
which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door
to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will
apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v.
New York, 336 U. S. 106, 112–113 (1949) (concurring
opinion).
That this law as applied to private, consensual conduct
is unconstitutional under the Equal Protection Clause
does not mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail under
rational basis review. Texas cannot assert any legitimate
state interest here, such as national security or preserving
the traditional institution of marriage. Unlike the moral
disapproval of same-sex relations—the asserted state
interest in this case—other reasons exist to promote the
institution of marriage beyond mere moral disapproval of
an excluded group.
A law branding one class of persons as criminal solely
based on the State’s moral disapproval of that class and
8
LAWRENCE v. TEXAS
O’CONNOR, J., concurring in judgment
the conduct associated with that class runs contrary to the
values of the Constitution and the Equal Protection
Clause, under any standard of review. I therefore concur
in the Court’s judgment that Texas’ sodomy law banning
“deviate sexual intercourse” between consenting adults of
the same sex, but not between consenting adults of different sexes, is unconstitutional.
Cite as: 539 U. S. ____ (2003)
1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 02–102
_________________
JOHN GEDDES LAWRENCE AND TYRON GARNER,
PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT
[June 26, 2003]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
“Liberty finds no refuge in a jurisprudence of doubt.”
Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 844 (1992). That was the Court’s sententious
response, barely more than a decade ago, to those seeking
to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court’s
response today, to those who have engaged in a 17-year
crusade to overrule Bowers v. Hardwick, 478 U. S. 186
(1986), is very different. The need for stability and certainty presents no barrier.
Most of the rest of today’s opinion has no relevance to its
actual holding—that the Texas statute “furthers no legitimate state interest which can justify” its application to
petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia’s antisodomy statute under the rational-basis test). Though
there is discussion of “fundamental proposition[s],” ante,
at 4, and “fundamental decisions,” ibid. nowhere does the
Court’s opinion declare that homosexual sodomy is a
“fundamental right” under the Due Process Clause; nor
does it subject the Texas law to the standard of review
2
LAWRENCE v. TEXAS
SCALIA, J., dissenting
that would be appropriate (strict scrutiny) if homosexual
sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely
untouched its central legal conclusion: “[R]espondent
would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling
to do.” 478 U. S., at 191. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”—which it undoubtedly is—and proceeds to apply an
unheard-of form of rational-basis review that will have
far-reaching implications beyond this case. Ante, at 3.
I
I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v.
Hardwick. I do not myself believe in rigid adherence to
stare decisis in constitutional cases; but I do believe that
we should be consistent rather than manipulative in
invoking the doctrine. Today’s opinions in support of
reversal do not bother to distinguish—or indeed, even
bother to mention—the paean to stare decisis coauthored
by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread
criticism of Roe was strong reason to reaffirm it:
“Where, in the performance of its judicial duties, the
Court decides a case in such a way as to resolve the
sort of intensely divisive controversy reflected in
Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling
reason . . . would subvert the Court’s legitimacy beyond any serious question.” 505 U. S., at 866–867.
Today, however, the widespread opposition to Bowers, a
decision resolving an issue as “intensely divisive” as the
Cite as: 539 U. S. ____ (2003)
3
SCALIA, J., dissenting
issue in Roe, is offered as a reason in favor of overruling it.
See ante, at 15–16. Gone, too, is any “enquiry” (of the sort
conducted in Casey) into whether the decision sought to be
overruled has “proven ‘unworkable,’ ” Casey, supra, at 855.
Today’s approach to stare decisis invites us to overrule
an erroneously decided precedent (including an “intensely
divisive” decision) if: (1) its foundations have been “eroded”
by subsequent decisions, ante, at 15; (2) it has been subject
to “substantial and continuing” criticism, ibid.; and (3) it
has not induced “individual or societal reliance” that
counsels against overturning, ante, at 16. The problem is
that Roe itself—which today’s majority surely has no
disposition to overrule—satisfies these conditions to at
least the same degree as Bowers.
(1) A preliminary digressive observation with regard to
the first factor: The Court’s claim that Planned Parenthood v. Casey, supra, “casts some doubt” upon the holding
in Bowers (or any other case, for that matter) does not
withstand analysis. Ante, at 10. As far as its holding is
concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when
Bowers was decided. And if the Court is referring not to
the holding of Casey, but to the dictum of its famed sweetmystery-of-life passage, ante, at 13 (“ ‘At the heart of liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human
life’ ”): That “casts some doubt” upon either the totality of
our jurisprudence or else (presumably the right answer)
nothing at all. I have never heard of a law that attempted
to restrict one’s “right to define” certain concepts; and if
the passage calls into question the government’s power to
regulate actions based on one’s self-defined “concept of
existence, etc.,” it is the passage that ate the rule of law.
I do not quarrel with the Court’s claim that Romer v.
Evans, 517 U. S. 620 (1996), “eroded” the “foundations” of
Bowers’ rational-basis holding. See Romer, supra, at 640–
4
LAWRENCE v. TEXAS
SCALIA, J., dissenting
643 (SCALIA, J., dissenting).) But Roe and Casey have
been equally “eroded” by Washington v. Glucksberg, 521
U. S. 702, 721 (1997), which held that only fundamental
rights which are “ ‘deeply rooted in this Nation’s history
and tradition’ ” qualify for anything other than rational
basis scrutiny under the doctrine of “substantive due
process.” Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted
in this Nation’s tradition.
(2) Bowers, the Court says, has been subject to “substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions.” Ante, at 15. Exactly what those nonhistorical
criticisms are, and whether the Court even agrees with
them, are left unsaid, although the Court does cite two
books. See ibid. (citing C. Fried, Order and Law: Arguing
the Reagan Revolution—A Firsthand Account 81–84
(1991); R. Posner, Sex and Reason 341–350 (1992)).1 Of
course, Roe too (and by extension Casey) had been (and
still is) subject to unrelenting criticism, including criticism
from the two commentators cited by the Court today. See
Fried, supra, at 75 (“Roe was a prime example of twisted
judging”); Posner, supra, at 337 (“[The Court’s] opinion in
Roe . . . fails to measure up to professional expectations
regarding judicial opinions”); Posner, Judicial Opinion
Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing
the opinion in Roe as an “embarrassing performanc[e]”).
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. “[T]here has been,” the Court
——————
1 This last-cited critic of Bowers actually writes: “[Bowers] is correct
nevertheless that the right to engage in homosexual acts is not deeply
rooted in America’s history and tradition.” Posner, Sex and Reason, at
343.
Cite as: 539 U. S. ____ (2003)
5
SCALIA, J., dissenting
says, “no individual or societal reliance on Bowers of the
sort that could counsel against overturning its holding
. . . .” Ante, at 16. It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded
today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that
certain sexual behavior is “immoral and unacceptable”
constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing
Bowers in upholding Alabama’s prohibition on the sale of
sex toys on the ground that “[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate
government interest under rational basis scrutiny”); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers
for the proposition that “[l]egislatures are permitted to
legislate with regard to morality . . . rather than confined
to preventing demonstrable harms”); Holmes v. California
Army National Guard 124 F. 3d 1126, 1136 (CA9 1997)
(relying on Bowers in upholding the federal statute and
regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663,
683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding
that “a person has no constitutional right to engage in
sexual intercourse, at least outside of marriage”);
Sherman v. Henry, 928 S. W. 2d 464, 469–473 (Tex. 1996)
(relying on Bowers in rejecting a claimed constitutional
right to commit adultery). We ourselves relied extensively
on Bowers when we concluded, in Barnes v. Glen Theatre,
Inc., 501 U. S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest
in protecting order and morality,” ibid., (plurality opinion);
see also id., at 575 (SCALIA, J., concurring in judgment).
State laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity are likewise sustainable only in
6
LAWRENCE v. TEXAS
SCALIA, J., dissenting
light of Bowers’ validation of laws based on moral choices.
Every single one of these laws is called into question by
today’s decision; the Court makes no effort to cabin the
scope of its decision to exclude them from its holding. See
ante, at 11 (noting “an emerging awareness that liberty
gives substantial protection to adult persons in deciding
how to conduct their private lives in matters pertaining to
sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses
is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of
morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process
Clause, the courts will be very busy indeed.” 478 U. S., at
196.2
——————
2 While
the Court does not overrule Bowers’ holding that homosexual
sodomy is not a “fundamental right,” it is worth noting that the “societal reliance” upon that aspect of the decision has been substantial as
well. See 10 U. S. C. §654(b)(1) (“A member of the armed forces shall be
separated from the armed forces . . . if . . . the member has engaged in
. . . a homosexual act or acts”); Marcum v. McWhorter, 308 F. 3d 635,
640–642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793–
794 (CA9 1995) (relying on Bowers in rejecting a grandparent’s claimed
“fundamental liberty interes[t]” in the adoption of her grandchildren);
Doe v. Wigginton, 21 F. 3d 733, 739–740 (CA6 1994) (relying on Bowers
in rejecting a prisoner’s claimed “fundamental right” to on-demand HIV
testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991)
(relying on Bowers in upholding a bisexual’s discharge from the armed
services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying
on Bowers in rejecting fire department captain’s claimed “fundamental”
interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214–1215
(CA8 1990) (relying on Bowers in rejecting a claim that state law
restricting surnames that could be given to children at birth implicates
a “fundamental right”); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4
1990) (relying on Bowers in rejecting substantive-due-process challenge
to a police department questionnaire that asked prospective employees
about homosexual activity); High Tech Gays v. Defense Industrial
Cite as: 539 U. S. ____ (2003)
7
SCALIA, J., dissenting
What a massive disruption of the current social order,
therefore, the overruling of Bowers entails. Not so the
overruling of Roe, which would simply have restored the
regime that existed for centuries before 1973, in which the
permissibility of and restrictions upon abortion were
determined legislatively State-by-State. Casey, however,
chose to base its stare decisis determination on a different
“sort” of reliance. “[P]eople,” it said, “have organized
intimate relationships and made choices that define their
views of themselves and their places in society, in reliance
on the availability of abortion in the event that contraception should fail.” 505 U. S., at 856. This falsely assumes
that the consequence of overruling Roe would have been to
make abortion unlawful. It would not; it would merely
have permitted the States to do so. Many States would
unquestionably have declined to prohibit abortion, and
others would not have prohibited it within six months
(after which the most significant reliance interests would
have expired). Even for persons in States other than
these, the choice would not have been between abortion
and childbirth, but between abortion nearby and abortion
in a neighboring State.
To tell the truth, it does not surprise me, and should
surprise no one, that the Court has chosen today to revise
the standards of stare decisis set forth in Casey. It has
thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.
——————
Security Clearance Office, 895 F. 2d 563, 570–571 (CA9 1988) (relying
on Bowers’ holding that homosexual activity is not a fundamental right
in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department’s policy of conducting
expanded investigations into backgrounds of gay and lesbian applicants
for secret and top-secret security clearance).
8
LAWRENCE v. TEXAS
SCALIA, J., dissenting
II
Having decided that it need not adhere to stare decisis,
the Court still must establish that Bowers was wrongly
decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly
imposes constraints on liberty. So do laws prohibiting
prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.
But there is no right to “liberty” under the Due Process
Clause, though today’s opinion repeatedly makes that
claim. Ante, at 6 (“The liberty protected by the Constitution allows homosexual persons the right to make this
choice”); ante, at 13 (“ ‘These matters . . . are central to the
liberty protected by the Fourteenth Amendment’ ”); ante,
at 17 (“Their right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth
Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:
“No state shall . . . deprive any person of life, liberty,
or property, without due process of law.” Amdt. 14
(emphasis added).
Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve
a compelling state interest. Washington v. Glucksberg,
521 U. S., at 721. We have held repeatedly, in cases the
Court today does not overrule, that only fundamental
rights qualify for this so-called “heightened scrutiny”
protection—that is, rights which are “ ‘deeply rooted in
this Nation’s history and tradition,’ ” ibid. See Reno v.
Flores, 507 U. S. 292, 303 (1993) (fundamental liberty
interests must be “so rooted in the traditions and con-
Cite as: 539 U. S. ____ (2003)
9
SCALIA, J., dissenting
science of our people as to be ranked as fundamental”
(internal quotation marks and citations omitted)); United
States v. Salerno, 481 U. S. 739, 751 (1987) (same). See
also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989)
(“[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ . . . but also that it be
an interest traditionally protected by our society”); Moore
v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality
opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923)
(Fourteenth Amendment protects “those privileges long
recognized at common law as essential to the orderly
pursuit of happiness by free men” (emphasis added)).3
All other liberty interests may be abridged or abrogated
pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.
Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny
because they do not implicate a “fundamental right” under
the Due Process Clause, 478 U. S., at 191–194. Noting
that “[p]roscriptions against that conduct have ancient
roots,” id., at 192, that “[s]odomy was a criminal offense at
common law and was forbidden by the laws of the original
13 States when they ratified the Bill of Rights,” ibid., and
that many States had retained their bans on sodomy, id.,
——————
3 The Court is quite right that “history and tradition are the starting
point but not in all cases the ending point of the substantive due
process inquiry,” ante, at 11. An asserted “fundamental liberty interest” must not only be “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must
also be “implicit in the concept of ordered liberty,” so that “neither
liberty nor justice would exist if [it] were sacrificed,” ibid. Moreover,
liberty interests unsupported by history and tradition, though not
deserving of “heightened scrutiny,” are still protected from state laws
that are not rationally related to any legitimate state interest. Id., at
722. As I proceed to discuss, it is this latter principle that the Court
applies in the present case.
10
LAWRENCE v. TEXAS
SCALIA, J., dissenting
at 193, Bowers concluded that a right to engage in homosexual sodomy was not “ ‘deeply rooted in this Nation’s
history and tradition,’ ” id., at 192.
The Court today does not overrule this holding. Not
once does it describe homosexual sodomy as a “fundamental right” or a “fundamental liberty interest,” nor does it
subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy
is “ ‘deeply rooted in this Nation’s history and tradition,’ ”
the Court concludes that the application of Texas’s statute
to petitioners’ conduct fails the rational-basis test, and
overrules Bowers’ holding to the contrary, see id., at 196.
“The Texas statute furthers no legitimate state interest
which can justify its intrusion into the personal and private life of the individual.” Ante, at 18.
I shall address that rational-basis holding presently.
First, however, I address some aspersions that the Court
casts upon Bowers’ conclusion that homosexual sodomy is
not a “fundamental right”—even though, as I have said,
the Court does not have the boldness to reverse that
conclusion.
III
The Court’s description of “the state of the law” at the
time of Bowers only confirms that Bowers was right. Ante,
at 5. The Court points to Griswold v. Connecticut, 381
U. S. 479, 481–482 (1965). But that case expressly disclaimed any reliance on the doctrine of “substantive due
process,” and grounded the so-called “right to privacy” in
penumbras of constitutional provisions other than the Due
Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972),
likewise had nothing to do with “substantive due process”;
it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on
the basis of the Equal Protection Clause. Of course Eisenstadt contains well known dictum relating to the “right to
Cite as: 539 U. S. ____ (2003)
11
SCALIA, J., dissenting
privacy,” but this referred to the right recognized in Griswold—a right penumbral to the specific guarantees in the
Bill of Rights, and not a “substantive due process” right.
Roe v. Wade recognized that the right to abort an unborn child was a “fundamental right” protected by the Due
Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was
“ ‘deeply rooted in this Nation’s history and tradition’ ”;
instead, it based its conclusion that “the Fourteenth
Amendment’s concept of personal liberty . . . is broad
enough to encompass a woman’s decision whether or not to
terminate her pregnancy” on its own normative judgment
that anti-abortion laws were undesirable. See id., at 153.
We have since rejected Roe’s holding that regulations of
abortion must be narrowly tailored to serve a compelling
state interest, see Planned Parenthood v. Casey, 505 U. S.,
at 876 (joint opinion of O’CONNOR, KENNEDY, and SOUTER,
JJ.); id., at 951–953 (REHNQUIST, C. J., concurring in
judgment in part and dissenting in part)—and thus, by
logical implication, Roe’s holding that the right to abort an
unborn child is a “fundamental right.” See 505 U. S., at
843–912 (joint opinion of O’CONNOR, KENNEDY, and
SOUTER, JJ.) (not once describing abortion as a “fundamental right” or a “fundamental liberty interest”).
After discussing the history of antisodomy laws, ante, at
7–10, the Court proclaims that, “it should be noted that
there is no longstanding history in this country of laws
directed at homosexual conduct as a distinct matter,” ante,
at 7. This observation in no way casts into doubt the
“definitive [historical] conclusion,” id., on which Bowers
relied: that our Nation has a longstanding history of laws
prohibiting sodomy in general—regardless of whether it
was performed by same-sex or opposite-sex couples:
“It is obvious to us that neither of these formulations
would extend a fundamental right to homosexuals to
12
LAWRENCE v. TEXAS
SCALIA, J., dissenting
engage in acts of consensual sodomy. Proscriptions
against that conduct have ancient roots. Sodomy was
a criminal offense at common law and was forbidden
by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth
Amendment was ratified, all but 5 of the 37 States in
the Union had criminal sodomy laws. In fact, until
1961, all 50 States outlawed sodomy, and today, 24
States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this
background, to claim that a right to engage in such
conduct is ‘deeply rooted in this Nation’s history and
tradition’ or ‘implicit in the concept of ordered liberty’
is, at best, facetious.” 478 U. S., at 192–194 (citations
and footnotes omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether
the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as
a distinct matter.” Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual
relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is
that it was criminalized—which suffices to establish that
homosexual sodomy is not a right “deeply rooted in our
Nation’s history and tradition.” The Court today agrees
that homosexual sodomy was criminalized and thus does
not dispute the facts on which Bowers actually relied.
Next the Court makes the claim, again unsupported by
any citations, that “[l]aws prohibiting sodomy do not seem
to have been enforced against consenting adults acting in
private.” Ante, at 8. The key qualifier here is “acting in
private”—since the Court admits that sodomy laws were
enforced against consenting adults (although the Court
contends that prosecutions were “infrequent,” ante, at 9).
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13
SCALIA, J., dissenting
I do not know what “acting in private” means; surely
consensual sodomy, like heterosexual intercourse, is rarely
performed on stage. If all the Court means by “acting in
private” is “on private premises, with the doors closed and
windows covered,” it is entirely unsurprising that evidence
of enforcement would be hard to come by. (Imagine the
circumstances that would enable a search warrant to be
obtained for a residence on the ground that there was
probable cause to believe that consensual sodomy was
then and there occurring.) Surely that lack of evidence
would not sustain the proposition that consensual sodomy
on private premises with the doors closed and windows
covered was regarded as a “fundamental right,” even
though all other consensual sodomy was criminalized.
There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and
official state reporters from the years 1880–1995. See
W. Eskridge, Gaylaw: Challenging the Apartheid of the
Closet 375 (1999) (hereinafter Gaylaw). There are also
records of 20 sodomy prosecutions and 4 executions during
the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58,
663 (1983). Bowers’ conclusion that homosexual sodomy is
not a fundamental right “deeply rooted in this Nation’s
history and tradition” is utterly unassailable.
Realizing that fact, the Court instead says: “[W]e think
that our laws and traditions in the past half century are of
most relevance here. These references show an emerging
awareness that liberty gives substantial protection to
adult persons in deciding how to conduct their private
lives in matters pertaining to sex.” Ante, at 11 (emphasis
added). Apart from the fact that such an “emerging
awareness” does not establish a “fundamental right,” the
statement is factually false. States continue to prosecute
all sorts of crimes by adults “in matters pertaining to sex”:
prostitution, adult incest, adultery, obscenity, and child
pornography. Sodomy laws, too, have been enforced “in
14
LAWRENCE v. TEXAS
SCALIA, J., dissenting
the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult,
homosexual sodomy. Gaylaw 375. In relying, for evidence
of an “emerging recognition,” upon the American Law
Institute’s 1955 recommendation not to criminalize
“ ‘consensual sexual relations conducted in private,’ ” ante,
at 11, the Court ignores the fact that this recommendation
was “a point of resistance in most of the states that considered adopting the Model Penal Code.” Gaylaw 159.
In any event, an “emerging awareness” is by definition
not “deeply rooted in this Nation’s history and tradition[s],” as we have said “fundamental right” status requires. Constitutional entitlements do not spring into
existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do
they spring into existence, as the Court seems to believe,
because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with
a wider civilization,” ante, at 16, but rather rejected the
claimed right to sodomy on the ground that such a right
was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” 478 U. S., at 193–194 (emphasis added). Bowers’
rational-basis holding is likewise devoid of any reliance on
the views of a “wider civilization,” see id., at 196. The
Court’s discussion of these foreign views (ignoring, of
course, the many countries that have retained criminal
prohibitions on sodomy) is therefore meaningless dicta.
Dangerous dicta, however, since “this Court . . . should not
impose foreign moods, fads, or fashions on Americans.”
Foster v. Florida, 537 U. S. 990, n. (2002) (THOMAS, J.,
concurring in denial of certiorari).
IV
I turn now to the ground on which the Court squarely
rests its holding: the contention that there is no rational
basis for the law here under attack. This proposition is so
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15
SCALIA, J., dissenting
out of accord with our jurisprudence—indeed, with the
jurisprudence of any society we know—that it requires
little discussion.
The Texas statute undeniably seeks to further the belief
of its citizens that certain forms of sexual behavior are
“immoral and unacceptable,” Bowers, supra, at 196—the
same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state
interest. The Court today reaches the opposite conclusion.
The Texas statute, it says, “furthers no legitimate state
interest which can justify its intrusion into the personal
and private life of the individual,” ante, at 18 (emphasis
addded). The Court embraces instead JUSTICE STEVENS’
declaration in his Bowers dissent, that “the fact that the
governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice,” ante, at 17.
This effectively decrees the end of all morals legislation.
If, as the Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate state interest,
none of the above-mentioned laws can survive rationalbasis review.
V
Finally, I turn to petitioners’ equal-protection challenge,
which no Member of the Court save JUSTICE O’CONNOR,
ante, at 1 (opinion concurring in judgment), embraces: On
its face §21.06(a) applies equally to all persons. Men and
women, heterosexuals and homosexuals, are all subject to
its prohibition of deviate sexual intercourse with someone
of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with
whom the sexual acts are performed: men can violate the
law only with other men, and women only with other
women. But this cannot itself be a denial of equal protec-
16
LAWRENCE v. TEXAS
SCALIA, J., dissenting
tion, since it is precisely the same distinction regarding
partner that is drawn in state laws prohibiting marriage
with someone of the same sex while permitting marriage
with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8
(1967), similarly were applicable to whites and blacks
alike, and only distinguished between the races insofar as
the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual
rational-basis review, because the Virginia statute was
“designed to maintain White Supremacy.” Id., at 6, 11. A
racially discriminatory purpose is always sufficient to
subject a law to strict scrutiny, even a facially neutral law
that makes no mention of race. See Washington v. Davis,
426 U. S. 229, 241–242 (1976). No purpose to discriminate
against men or women as a class can be gleaned from the
Texas law, so rational-basis review applies. That review is
readily satisfied here by the same rational basis that
satisfied it in Bowers—society’s belief that certain forms of
sexual behavior are “immoral and unacceptable,” 478
U. S., at 196. This is the same justification that supports
many other laws regulating sexual behavior that make a
distinction based upon the identity of the partner—
for example, laws against adultery, fornication, and
adult incest, and laws refusing to recognize homosexual
marriage.
JUSTICE O’CONNOR argues that the discrimination in
this law which must be justified is not its discrimination
with regard to the sex of the partner but its discrimination
with regard to the sexual proclivity of the principal actor.
“While it is true that the law applies only to conduct,
the conduct targeted by this law is conduct that is
closely correlated with being homosexual. Under such
circumstances, Texas’ sodomy law is targeted at more
Cite as: 539 U. S. ____ (2003)
17
SCALIA, J., dissenting
than conduct. It is instead directed toward gay persons as a class.” Ante, at 5.
Of course the same could be said of any law. A law
against public nudity targets “the conduct that is closely
correlated with being a nudist,” and hence “is targeted at
more than conduct”; it is “directed toward nudists as a
class.” But be that as it may. Even if the Texas law does
deny equal protection to “homosexuals as a class,” that
denial still does not need to be justified by anything more
than a rational basis, which our cases show is satisfied by
the enforcement of traditional notions of sexual morality.
JUSTICE O’CONNOR simply decrees application of “a
more searching form of rational basis review” to the Texas
statute. Ante, at 2. The cases she cites do not recognize
such a standard, and reach their conclusions only after
finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports
the classification at issue. See Romer v. Evans, 517 U. S.,
at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 448–450 (1985); Department of Agriculture v. Moreno,
413 U. S. 528, 534–538 (1973).
Nor does JUSTICE
O’CONNOR explain precisely what her “more searching
form” of rational-basis review consists of. It must at least
mean, however, that laws exhibiting “ ‘a . . . desire to harm
a politically unpopular group,’ ” ante, at 2, are invalid even
though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state
laws limiting marriage to opposite-sex couples. JUSTICE
O’CONNOR seeks to preserve them by the conclusory
statement that “preserving the traditional institution of
marriage” is a legitimate state interest. Ante, at 7. But
“preserving the traditional institution of marriage” is just
a kinder way of describing the State’s moral disapproval
of same-sex couples. Texas’s interest in §21.06 could be
18
LAWRENCE v. TEXAS
SCALIA, J., dissenting
recast in similarly euphemistic terms: “preserving the
traditional sexual mores of our society.” In the jurisprudence JUSTICE O’CONNOR has seemingly created, judges
can validate laws by characterizing them as “preserving
the traditions of society” (good); or invalidate them by
characterizing them as “expressing moral disapproval”
(bad).
*
*
*
Today’s opinion is the product of a Court, which is the
product of a law-profession culture, that has largely signed
on to the so-called homosexual agenda, by which I mean
the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has
traditionally attached to homosexual conduct. I noted in
an earlier opinion the fact that the American Association
of Law Schools (to which any reputable law school must
seek to belong) excludes from membership any school that
refuses to ban from its job-interview facilities a law firm
(no matter how small) that does not wish to hire as a
prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today’s opinion
is the Court’s grim warning that the criminalization of
homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the
private spheres.” Ante, at 14. It is clear from this that the
Court has taken sides in the culture war, departing from
its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans
do not want persons who openly engage in homosexual
conduct as partners in their business, as scoutmasters for
their children, as teachers in their children’s schools, or as
boarders in their home. They view this as protecting
themselves and their families from a lifestyle that they
believe to be immoral and destructive. The Court views it
Cite as: 539 U. S. ____ (2003)
19
SCALIA, J., dissenting
as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law
profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not
obviously “mainstream”; that in most States what the
Court calls “discrimination” against those who engage in
homosexual acts is perfectly legal; that proposals to ban
such “discrimination” under Title VII have repeatedly
been rejected by Congress, see Employment NonDiscrimination Act of 1994, S. 2238, 103d Cong., 2d Sess.
(1994); Civil Rights Amendments, H. R. 5452, 94th Cong.,
1st Sess. (1975); that in some cases such “discrimination”
is mandated by federal statute, see 10 U. S. C. §654(b)(1)
(mandating discharge from the armed forces of any service
member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a
constitutional right, see Boy Scouts of America v. Dale,
530 U. S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through
normal democratic means. Social perceptions of sexual
and other morality change over time, and every group has
the right to persuade its fellow citizens that its view of
such matters is the best. That homosexuals have achieved
some success in that enterprise is attested to by the fact
that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing
one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize
homosexual acts—or, for that matter, display any moral
disapprobation of them—than I would forbid it to do so.
What Texas has chosen to do is well within the range of
traditional democratic action, and its hand should not be
stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic
20
LAWRENCE v. TEXAS
SCALIA, J., dissenting
change. It is indeed true that “later generations can see
that laws once thought necessary and proper in fact serve
only to oppress,” ante, at 18; and when that happens, later
generations can repeal those laws. But it is the premise of
our system that those judgments are to be made by the
people, and not imposed by a governing caste that knows
best.
One of the benefits of leaving regulation of this matter
to the people rather than to the courts is that the people,
unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of
homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize
private homosexual acts—and may legislate accordingly.
The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in
Canada (in a decision that the Canadian Government has
chosen not to appeal). See Halpern v. Toronto, 2003 WL
34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow
Gay Couple’s Lead, Washington Post, June 12, 2003, p.
A25. At the end of its opinion—after having laid waste the
foundations of our rational-basis jurisprudence—the Court
says that the present case “does not involve whether the
government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17.
Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which
notes the constitutional protections afforded to “personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education,” and
then declares that “[p]ersons in a homosexual relationship
may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s
opinion dismantles the structure of constitutional law that
Cite as: 539 U. S. ____ (2003)
21
SCALIA, J., dissenting
has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of
homosexual conduct is “no legitimate state interest” for
purposes of proscribing that conduct, ante, at 18; and if, as
the Court coos (casting aside all pretense of neutrality),
“[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one
element in a personal bond that is more enduring,” ante,
at 6; what justification could there possibly be for denying
the benefits of marriage to homosexual couples exercising
“[t]he liberty protected by the Constitution,” ibid.? Surely
not the encouragement of procreation, since the sterile and
the elderly are allowed to marry. This case “does not
involve” the issue of homosexual marriage only if one
entertains the belief that principle and logic have nothing
to do with the decisions of this Court. Many will hope
that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court’s resolution are
only three: Texas’s prohibition of sodomy neither infringes
a “fundamental right” (which the Court does not dispute),
nor is unsupported by a rational relation to what the
Constitution considers a legitimate state interest, nor
denies the equal protection of the laws. I dissent.
Cite as: 539 U. S. ____ (2003)
1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 02–102
_________________
JOHN GEDDES LAWRENCE AND TYRON GARNER,
PETITIONERS v. TEXAS
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
TEXAS, FOURTEENTH DISTRICT
[June 26, 2003]
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA’s dissenting opinion. I write
separately to note that the law before the Court today “is
. . . uncommonly silly.” Griswold v. Connecticut, 381 U. S.
479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it.
Punishing someone for expressing his sexual preference
through noncommercial consensual conduct with another
adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of
this Court I am not empowered to help petitioners and
others similarly situated. My duty, rather, is to “decide
cases ‘agreeably to the Constitution and laws of the United
States.’ ” Id., at 530. And, just like Justice Stewart, I “can
find [neither in the Bill of Rights nor any other part of the
Constitution a] general right of privacy,” ibid., or as the
Court terms it today, the “liberty of the person both in its
spatial and more transcendent dimensions,” ante, at 1.
Litigators Making a Difference
John Geddes Lawrence and Tyron
Garner v. Texas: Brief of Petitioners
Paul Smith
Jenner & Block
Washington, DC
Marcia Greenberger
National Women’s Law Center
Washington, DC
Neal Katyal
Hogan Lovells
Washington, DC
Reprinted with Permission
No. 02-102
I N T HE
Supreme Court of the United States
____________
JOHN G EDDES L AWRENCE AND T YRON G ARNER ,
Petitioners,
v.
S TATE OF T EXAS,
Respondent.
_______
On Writ Of Certio rari
To The Court Of App eals Of Texas
Fourteenth District
__________
BRIEF OF PETITIONERS
__________
Paul M . Smith
William M. H ohengarten
Daniel M ach
Sharon M . McGow an
JENNER & B L O C K , LLC
601 13th Street, N.W.
Washing ton, DC 20005
(202) 639-6000
Mitchell Katine
W IL LIA M S , B I RN B E R G &
A NDERSEN , L.L.P.
6671 Southwest Freew ay,
Suite 303
Houston, Texas 77074
(713) 981-9595
Ruth E. Harlow
Counsel of Record
Patricia M. Logue
Susan L. Somm er
L A M B D A L EGAL D EFENSE
A N D E D U C AT IO N F U N D , I N C .
120 Wall Street, Suite 1500
New Y ork, NY 10005
(212) 809-8585
Counsel for Petitioners
i
QUESTIONS PRESENTED
1. Whether Petitioners’ criminal convictions under the Texas
“Homosexual Conduct” law – which criminalizes adult,
consensual same-sex intimate behavior, but not identical
behavior by different-sex couples – violate the Fourteenth
Amendment right to equal protection of the laws?
2. Whether Petitioners’ criminal convictions for adult consensual
sexual intimacy in the home violate their vital interests in
liberty and privacy protected by the Due Process Clause of
the Fourteenth Amendment?
3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be
overruled?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . v
OPINIONS AND ORDERS BELOW . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY AND CONSTITUTIONAL PROVISIONS . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.
Petitioners’ Arrests, Convictions,
and Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B.
The Homosexual Conduct Law . . . . . . . . . . . . . . 4
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I.
Section 21.06 Violates Constitutional Rights
to Liberty and Privacy Possessed by All
Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A.
American Adults Have Fundamental Liberty
and Privacy Interests in Making Their Own
Choices About Private, Consensual Sexual
Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iii
TABLE OF CONTENTS - continued
Page
II.
1.
Well-Established Protections for
Intimate Relationships, Bodily
Integrity, and the Privacy of the
Home Converge in This Vital
Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
There Is No Constitutional Exception
to Liberty for Gay and Lesbian
Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.
Objective Considerations Support
Recognition of Fundamental Interests
Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B.
Texas Cannot Justify Section 21.06’s Criminal
Prohibition of Petitioners’ and Other Adults’
Private Sexual Intimacy . . . . . . . . . . . . . . . . . . . 25
C.
Bowers Should Not Block Recognition and
Enforcement of These Fundamental
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 21.06 Discriminates Without Any Legitimate
and Rational Basis, Contrary to the Guarantee of
Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
A.
Section 21.06’s Classification Is Not
Rationally Related to Any Legitimate Purpose
and Serves Only the Illegitimate Purpose of
Disadvantaging One Group . . . . . . . . . . . . . . . . 34
iv
TABLE OF CONTENTS - continued
Page
B.
C.
The Broader Realities Reinforce This Law’s
Affront to Core Principles of Equal
Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1.
The Homosexual Conduct Law Brands
Gay Persons As Second-Class Citizens
and Licenses Wide-Ranging
Discrimination Against Them . . . . . . . 41
2.
The Homosexual Conduct Law Reflects
and Helps Fuel a Continuing History of
Discrimination Against Gay
Americans . . . . . . . . . . . . . . . . . . . . . . . . 45
Equal Protection Concerns Are Particularly
Strong Here Because of the Personal Burdens
Imposed by This Criminal Law . . . . . . . . . . . . . 48
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
v
TABLE OF AUTHORITIES
Page
CASES
Adams v. State, 86 S.W. 334 (Tex. Crim. App.
1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Agostini v. Felton, 521 U.S. 203 (1997) . . . . . . . . . . . . . . . . 29
Atkins v. Virginia, 122 S. Ct. 2242 (2002) . . . . . . . . . . . . . . 24
Atwater v. City of Lago Vista, 532 U.S. 318
(2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
BE&K Construction Co. v. NLRB, 122 S. Ct. 2390
(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) . . . . . . . . . . . . . 7
Baker v. Wade, 553 F. Supp. 1121 (N.D. Tex.
1982), rev’d, 769 F.2d 289 (5th Cir. 1985) . . . . . . . . 5, 7, 44
Board of Directors of Rotary International v.
Rotary Club of Duarte, 481 U.S. 537 (1987) . . . . . . . . . . . 12
Board of Regents v. Roth, 408 U.S. 564 (1972) . . . . . . . . . . 11
Board of Trustees of the University of Alabama
v. Garrett, 531 U.S. 356 (2001) . . . . . . . . . . . . . . . 34, 39, 40
Boddie v. Connecticut, 401 U.S. 371 (1971) . . . . . . . . . . . . . 49
Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) . . . . . . . . . 42
Boutilier v. INS, 387 U.S. 118 (1967) . . . . . . . . . . . . . . . . . . 46
Bowers v. Hardwick, 478 U.S. 186 (1986) . . . . . . . . . . passim
Brown v. Board of Education, 347 U.S. 483
(1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 32
vi
TABLE OF AUTHORITIES - continued
Page
Burdine v. Johnson, 66 F. Supp. 2d 854 (S.D.
Tex. 1999), aff‘d, 262 F.3d 336 (5th Cir. 2001),
cert. denied, 122 S. Ct. 2347 (2002) . . . . . . . . . . . . . . . . . . 44
C.M. v. State, 680 S.W.2d 53 (Tex. App. 1984) . . . . . . . . . . 5
Campbell v. Sundquist, 926 S.W.2d 250 (Tenn.
Ct. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24
Carey v. Population Services International,
431 U.S. 679 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Childers v. Dallas Police Department, 513 F.
Supp. 134 (N.D. Tex. 1981), aff’d, 669 F.2d
732 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
City of Cleburne v. Cleburne Living Center, Inc.,
473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . 10, 34, 37, 39, 40
City of Dallas v. England, 846 S.W.2d 957 (Tex.
App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 44
Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) . . . . . . 24
Commonwealth v. Wasson, 842 S.W.2d 487
(Ky. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 33, 35
County of Sacramento v. Lewis, 523 U.S. 833
(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Cruzan v. Director, Missouri Department of
Health, 497 U.S. 261 (1990) . . . . . . . . . . . 10, 13, 25, 26, 50
Ex parte D.W.W., 717 So. 2d 793 (Ala. 1998) . . . . . . . . . . 42
Dickerson v. United States, 530 U.S. 428 (2000) . . . . . . . . . 30
Doe v. Commonwealth’s Attorney for the City
of Richmond, 425 U.S. 901 (1976) . . . . . . . . . . . . . . . . . . . . 7
vii
TABLE OF AUTHORITIES - continued
Page
Doe v. Ventura, No. MC 01-489, 2001 WL 543734
(Minn. May 15, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Dunn v. Blumstein, 405 U.S. 330 (1972) . . . . . . . . . . . . . . . 32
Eisenstadt v. Baird, 405 U.S. 438 (1972) . . . . . . . . . . 9, 12, 41
Frisby v. Schultz, 487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . 14
Gitlow v. New York, 268 U.S. 652 (1925) . . . . . . . . . . . . . . 32
Griswold v. Connecticut, 381 U.S. 479
(1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 14, 20
Gryzcan v. State, 942 P.2d 112 (Mont. 1997) . . . . . . . . 23, 24
Ex parte H.H., 830 So. 2d 21 (Ala. 2002) . . . . . . . . . . . . . . 42
Head v. Newton, 596 S.W.2d 209 (Tex. App. 1980) . . . . . . 45
In re J.M., No. SO2A1432, 2003 WL 79330 (Ga. Jan.
13, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
J.P. v. P.W., 772 S.W.2d 786 (Mo. Ct. App. 1989) . . . . . . 43
Jegley v. Picado, 80 S.W.3d 332 (Ark.
2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 35, 38, 43
Kyllo v. United States, 533 U.S. 27 (2001) . . . . . . . . . . . . . . 14
Lewis v. State, 35 S.W. 372 (Tex. Crim. App.
1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 21
Lofton v. Kearney, 157 F. Supp. 2d 1372 (S.D.
Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In re Longstaff, 538 F. Supp. 589 (N.D. Tex.
1982), aff’d, 716 F.2d 1439 (5th Cir. 1983) . . . . . . . . . . . 27
Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . . . 20, 24
viii
TABLE OF AUTHORITIES - continued
Page
M.L.B. v. S.L.J., 519 U.S. 102 (1996) . . . . . . . . . . . . . . . 48, 49
McLaughlin v. Florida, 379 U.S. 184 (1964) . . . . . . . . . 32, 34
Maher v. Roe, 432 U.S. 464 (1977) . . . . . . . . . . . . . . . . . . . . 28
Malloy v. Hogan, 378 U.S. 1 (1964) . . . . . . . . . . . . . . . . . . . 32
Meyer v. Nebraska, 262 U.S. 390 (1923) . . . . . . . . . 10, 20, 29
Michael H. v. Gerald D., 491 U.S. 110 (1989) . . . . . . . . 18, 20
Michigan Organization for Human Rights v.
Kelley, No. 88-815820 CZ (Mich. Cir. Ct.
Wayne County July 9, 1990 ) . . . . . . . . . . . . . . . . . . . . . 23
Minnesota v. Olson, 495 U.S. 91 (1990) . . . . . . . . . . . . . . . 14
Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . 30
Mississippi University for Women v. Hogan,
458 U.S. 718 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Mitchell v. United States, 526 U.S. 314 (1999) . . . . . . . . . . 31
Moore v. City of East Cleveland, 431 U.S. 494
(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Munoz v. State, 281 S.W. 857 (Tex. Crim. App.
1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) . . . . . . . 47
New York Transit Authority v. Beazer, 440 U.S.
568 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969) . . . . . . . . 47
O’Connor v. Donaldson, 422 U.S. 563 (1975) . . . . . . . . . . . 37
ix
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One Eleven Wines & Liquors, Inc. v. Division
of Alcohol Beverage Control, 235 A.2d 12
(N.J. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
One, Inc. v. Olesen, 241 F.2d 772 (9th Cir.
1957), rev’d, 355 U.S. 371 (1958) . . . . . . . . . . . . . . . . . . . 47
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) . . . . . . . . 30
Palmore v. Sidoti, 466 U.S. 429 (1984) . . . . . . . . . . . . . . 37, 38
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) . . . 12, 13
Payne v. Tennessee, 501 U.S. 808 (1991) . . . . . . . . . 29, 31, 32
Pierce v. Society of the Sisters of the Holy Names
of Jesus & Mary, 268 U.S. 510 (1925) . . . . . . . 10, 16, 20, 28
Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . passim
Plyler v. Doe, 457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . 49, 50
Poe v. Ullman, 367 U.S. 497 (1961) . . . . . . . . . . 14, 15, 26, 28
Post v. State, 715 P.2d 1105 (Okla. Crim. App.
1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Powell v. State, 510 S.E.2d 18 (Ga. 1998) . . . . . . . . . . . 23, 24
Prindle v. State, 21 S.W. 360 (Tex. Crim. App.
1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Railway Express Agency v. New York, 336 U.S.
106 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Rinaldi v. Yeager, 384 U.S. 305 (1966) . . . . . . . . . . . . . . . . 34
Roberts v. United States Jaycees, 468 U.S. 609
(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Rochin v. California, 342 U.S. 165 (1952) . . . . . . . . . . . 13, 20
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Roe v. Wade, 410 U.S. 113 (1973) . . . . . . . . . . . . . . 10, 20, 28
Romer v. Evans, 517 U.S. 620 (1996) . . . . . . . . . . . . . . passim
San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . 49
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . 29
Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) . . . . . . . 42
Stanley v. Georgia, 394 U.S. 557 (1969) . . . . . . . . . . . . . . . . 14
State v. Ciuffini, 395 A.2d 914 (N.J. Super. Ct.
App. Div. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
State v. Cogshell, 997 S.W.2d 534 (Mo. Ct. App. 1999) . . . 7
State v. Morales, 826 S.W.2d 201 (Tex. App. 1992),
rev’d on jurisdictional grounds, 869 S.W.2d 941
(Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
State v. Morales, 869 S.W.2d 941 (Tex. 1994) . . . . . . . . . . . 8
State v. Smith, 766 So. 2d 501 (La. 2000) . . . . . . . . . . . . . . 23
T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) . . . . . . . . . . . . . . . 18
Thomas v. Bynum, No. 04-02-00036-CV, 2002
WL 31829509 (Tex. App. Dec. 18, 2002) . . . . . . . . . 44, 45
Troxel v. Granville, 530 U.S. 57 (2000) . . . . . . . . . . . . passim
Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . 20
United States Department of Agriculture v.
Moreno, 413 U.S. 528 (1973) . . . . . . . . . . . 10, 37, 39, 40, 41
Vance v. Bradley, 440 U.S. 93 (1979) . . . . . . . . . . . . . . . 40, 46
Vasquez v. Hillery, 474 U.S. 254 (1986) . . . . . . . . . . . . . . . 31
xi
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Walls v. City of Petersburg, 895 F.2d 188 (4th Cir.
1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Washington v. Glucksberg, 521 U.S. 702 (1997) 13, 19, 20, 26
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . 16, 29, 30, 32
Western & Southern Life Insurance Co. v. State
Board of Equalization, 451 U.S. 648 (1981) . . . . . . . . . . . 34
Whitney v. California, 274 U.S. 357 (1927) . . . . . . . . . . . . . 37
Williams v. State, No. 98036031/CL-1059
(Md. Cir. Ct. Balt. City Oct. 15, 1998) . . . . . . . . . . . . . . 23
STATUTES
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . 2, 48
Ala. Code § 13A-5-7(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Ala. Code § 13A-6-60(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
Ala. Code § 13A-6-65(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1997 Ark. Acts 828 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Ariz. Rev. Stat. § 13.1411 . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Ariz. Rev. Stat. § 13.1412 . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2001 Ariz. Legis. Serv. 382 (West) . . . . . . . . . . . . . . . . 23, 24
1999 Cal. Legis. Serv. ch. 592 (West) . . . . . . . . . . . . . . . . . 31
1971 Colo. Sess. Laws ch. 121 . . . . . . . . . . . . . . . . . . . . . . 43
1991 Conn. Legis. Serv. 91-58 (West) . . . . . . . . . . . . . . . . 31
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D.C. Stat. § 22-1602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
D.C. Stat. § 22-3502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Human Rights Act of 1977, D.C. Laws 2-38 . . . . . . . . . . 31
1993 D.C. Laws 10-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Fla. Stat. Ann. § 775.082(4)(b) . . . . . . . . . . . . . . . . . . . . . . 27
Fla. Stat. Ann. § 798.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Fla. Stat. Ann. § 800.02 . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
Ga. Code Ann. § 16-6-18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1991 Hawaii Sess. Laws Act 2 . . . . . . . . . . . . . . . . . . . . . . 31
Idaho Code § 18-6603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Idaho Code § 18-6605 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
Idaho Code § 18-8304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
720 Ill. Comp. Stat. 5/11-8 . . . . . . . . . . . . . . . . . . . . . . . . . 23
Kan. Stat. Ann. § 21-3505 . . . . . . . . . . . . . . . . . . . . . . . 22, 27
Kan. Stat. Ann. § 21-3505(a)(1) . . . . . . . . . . . . . . . . . . . . . . 7
Kan. Stat. Ann. § 21-4502(1)(b) . . . . . . . . . . . . . . . . . . . . . 27
1969 Kan. Sess. Laws ch. 180 . . . . . . . . . . . . . . . . . . . . . . . 22
1974 Ky. Rev. Acts ch. 406 . . . . . . . . . . . . . . . . . . . . . . . . . 22
La. Rev. Stat. Ann. § 14:89 . . . . . . . . . . . . . . . . . . . . . . . 6, 27
La. Rev. Stat. Ann. § 15:541 . . . . . . . . . . . . . . . . . . . . . . . . 27
2001 Md. Laws ch. 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Mass. Gen. Laws ch. 272, § 18 . . . . . . . . . . . . . . . . . . . . . . 23
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Mass. Gen. Laws ch. 277 § 39 . . . . . . . . . . . . . . . . . . . . . . 23
1989 Mass. Legis. Serv. ch. 516 (West) . . . . . . . . . . . . . . . 31
Mich. Comp. Laws Ann. § 750.335 . . . . . . . . . . . . . . . . . . 23
Minn. Stat. § 609.34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1993 Minn. Sess. Law Serv. ch. 22 (West) . . . . . . . . . . . . 31
Miss. Code Ann. § 45-33-23 . . . . . . . . . . . . . . . . . . . . . . . . 27
Miss. Code Ann. § 97-29-1 . . . . . . . . . . . . . . . . . . . . . . . . . 23
Miss. Code Ann. § 97-29-59 . . . . . . . . . . . . . . . . . . . . . . 6, 27
Mo. Rev. Stat. § 558.011 . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Mo. Rev. Stat. § 566.090 . . . . . . . . . . . . . . . . . . . . . . 7, 22, 27
1977 Mo. Laws sec. 1, § 566.090 . . . . . . . . . . . . . . . . . . . . . 22
1973 Mont. Laws ch. 513 . . . . . . . . . . . . . . . . . . . . . . . . . . 22
N.C. Gen. Stat. § 14-177 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27
N.C. Gen. Stat. § 14-184 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
N.C. Gen. Stat. § 15A-1340.17 . . . . . . . . . . . . . . . . . . . . . . 27
N.D. Cent. Code § 12.1-20-10 . . . . . . . . . . . . . . . . . . . . . . . 23
1997 N.H. Laws ch. 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2001 N.M. Laws ch. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1991 N.J. Sess. Law Serv. ch. 519 (West) . . . . . . . . . . . . . 31
2002 N.Y. Laws ch. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 47
1977 Nev. Stat. ch. 598 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1993 Nev. Stat. ch. 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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1999 Nev. Stat. ch. 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Nev. Rev. Stat. Ann. § 201.193 . . . . . . . . . . . . . . . . . . . . . . 23
Okla. Stat. tit. 21, § 886 . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 27
2002 Okla. Sess. Law Serv. ch 460, § 8 (West) . . . . . . . . . 27
R.I. Gen. Laws § 11-10-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1995 R.I. Pub. Laws ch. 95-32 . . . . . . . . . . . . . . . . . . . . . . . 31
1998 R.I. Pub. Laws 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
S.C. Code Ann. § 16-15-60 . . . . . . . . . . . . . . . . . . . . . . . . . 23
S.C. Code Ann. § 16-15-80 . . . . . . . . . . . . . . . . . . . . . . . . . 23
S.C. Code Ann. § 16-15-120 . . . . . . . . . . . . . . . . . . . . . . 6, 27
S.C. Code Ann. § 23-3-430 . . . . . . . . . . . . . . . . . . . . . . . . . 27
1989 Tenn. Pub. Acts ch. 591 . . . . . . . . . . . . . . . . . . . . . . . 22
Tex. Alco. Bev. Code § 11.46(a)(3) . . . . . . . . . . . . . . . . . . . 27
Tex. Code Crim. P. 44.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. Occ. Code § 164.051(a)(2)(B) . . . . . . . . . . . . . . . . . . . 27
Tex. Occ. Code § 301.409(a)(1)(B) . . . . . . . . . . . . . . . . . . . 27
Tex. Occ. Code § 401.453(a) . . . . . . . . . . . . . . . . . . . . . . . . 27
Tex. Occ. Code § 451.251(a)(1) . . . . . . . . . . . . . . . . . . . . . . 27
Tex. Occ. Code § 1053.252(2) . . . . . . . . . . . . . . . . . . . . . . . 27
Tex. Occ. Code § 2001.102 . . . . . . . . . . . . . . . . . . . . . . . . . 27
Tex. Pen. Code § 12.23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code § 21.01(1) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
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Tex. Pen. Code § 21.06 . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6, 33
Tex. Pen. Code § 21.07(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code § 21.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code § 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code § 22.011(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code § 43.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tex. Pen. Code art. 342 (1860) . . . . . . . . . . . . . . . . . . . . 5, 21
Tex. Pen. Code arts. 499-504 (1954) . . . . . . . . . . . . . . . . . . 5
Tex. Transp. Code § 512.022(f) . . . . . . . . . . . . . . . . . . . . . 27
1943 Tex. Gen. Law Serv. ch. 112, § 1 . . . . . . . . . . . . . . 5, 21
1973 Tex. Gen. Laws ch. 399, § 1 . . . . . . . . . . . . . . . . . . 5, 22
1973 Tex. Gen. Laws ch. 399, § 3 . . . . . . . . . . . . . . . . . . 5, 22
1993 Tex. Sess. Law Serv. ch. 900 (Vernon) . . . . . . . . . . . . 5
H.B. 687, 2001 Leg. 77th (R) Sess. (Tex.) . . . . . . . . . . . . . . . 5
Austin, Tex., City Code, vol. I, tit. VII . . . . . . . . . . . . . . . 31
Dallas, Tex., Mun. Ordinance 24927 (May 8, 2002) . . . . 31
Fort Worth, Tex., Code of Ordinances, ch. 17,
art. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Houston, Tex., City Code, ch. 2, tit. XIV . . . . . . . . . . . . . 31
Utah Code Ann. § 76-3-204(2) . . . . . . . . . . . . . . . . . . . . . . 27
Utah Code Ann. § 76-5-403(1) . . . . . . . . . . . . . . . . . . . . 6, 27
Utah Code Ann. § 76-7-104 . . . . . . . . . . . . . . . . . . . . . . . . 23
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Va. Code Ann. § 18.2-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Va. Code Ann. § 18.2-344 . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Va. Code Ann. § 18.2-361 . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Va. Code Ann. § 18.2-361(A) . . . . . . . . . . . . . . . . . . . . . . . . 6
1992 Vt. Acts & Resolves 135 . . . . . . . . . . . . . . . . . . . . . . . 31
W. Va. Code § 61-8-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1981 Wis. Laws ch. 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
MISCELLANEOUS
American Law Inst., Principles of the Law of Family
Dissolution: Analysis and Recommendations § 2.12
cmt. f (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
American Psychological Ass’n, Minutes of the
Annual Meeting of the Council of Representatives,
30 Am. Psychologist 620 (1975) . . . . . . . . . . . . . . . . 16, 17
American Psychiatric Ass’n, Position Statement:
Psychiatric Treatment and Sexual Orientation
(1998), available at http://www.psych.org
/archives/980020.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A. Steven Bryant & Demian, Relationship
Characteristics of American Gay and Lesbian
Couples, 1 J. Gay & Lesbian Soc. Servs. 101
(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
John D’Emilio & Estelle B. Freedman, Intimate
Matters: A History of Sexuality in America (1988) . . 21, 45
xvii
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Page
R.A. Dyer, Two Men Charged Under State’s Sodomy
Law, Hous. Chron., Nov. 6, 1998, at A1 . . . . . . . . . . . . . 2
Employers That Offer Domestic Partner Health
Benefits, available at http://www.hrc.org/
worknet/dp/index.asp (accessed Jan. 15, 2003) . . . . . 18
William Eskridge, Channeling: Identity-Based
Social Movements and Public Law, 150 U. Pa.
L. Rev. 419 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Howard Fischer, Hull OKs Repeal of ‘Archaic’ Sex
Laws, Ariz. Daily Star, May 9, 2001, at A1 . . . . . . . 24, 25
James A. Garland, The Low Road to Violence:
Governmental Discrimination as a Catalyst for
Pandemic Hate Crime, 10 L. & Sexuality 1 (2001) . . . . . 46
Anne B. Goldstein, History, Homosexuality, and
Political Values, 97 Yale L.J. 1073 (1988) . . . . . . . . . . . . 21
John C. Gonsiorek & James D. Weinrich, The
Definition and Scope of Sexual Orientation, in
Homosexuality: Research Implications for Public
Policy (J. Gonsiorek & J. Weinrich eds., 1991) . . . . . . . 33
Diana Hassel, The Use of Criminal Sodomy Laws
in Civil Litigation, 79 Tex. L. Rev. 813 (2001) . . . . . . . . 44
Hidden From History: Reclaiming the Gay
and Lesbian Past (Martin Duberman, Martha
Vicinus & George Chauncey, Jr. eds., 1990) . . . . . . . . . 45
Polly Hughes, Bill Would Ban Gay Texans From
Adopting Children, Hous. Chron., Dec. 11, 1998,
at A38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
xviii
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Dianna Hunt, Plan to Ban Anti-Gay Bias in Fort
Worth Dies, Dallas Morning News, Jan. 20,
1999, at 32A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Nan D. Hunter, Life After Hardwick, 27 Harv.
C.R.-C.L. L. Rev. 531 (1992) . . . . . . . . . . . . . . . . . . . . . . 42
Kenneth L. Karst, The Freedom of Intimate
Association, 89 Yale L.J. 624 (1980) . . . . . . . . . . . . . . . . . 15
Jonathan N. Katz, Gay/Lesbian Almanac (1983) . . . . . . . . 46
Jonathan N. Katz, Gay American History: Lesbians
and Gay Men in the U.S.A. (rev. ed. 1992) . . . . . 45, 46, 47
Terry S. Kogan, Legislative Violence Against Lesbians
and Gay Men, 1994 Utah L. Rev. 209 . . . . . . . . . . . . . . . 42
Lawrence A. Kurdeck, Sexuality in Homosexual
and Heterosexual Couples, in Sexuality in Close
Relationships (K. McKinney & S. Sprecher eds.,
1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Edward O. Laumann et al., The Social Organization
of Sexuality (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Arthur S. Leonard, Legislative Notes, 1998 Lesbian/
Gay L. Notes 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Lesbians, Gay Men and the Law (William B.
Rubenstein ed., 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Christopher R. Leslie, Creating Criminals: The
Injuries Inflicted by “Unenforced” Sodomy Laws,
35 Harv. C.R.-C.L. L. Rev. 103 (2000) . . . . . . . . . . . 17, 48
Model Penal Code and Commentaries (1980) . . . . . . . . . . 6, 45
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National Ass’n of Social Workers, Policy Statement
on Lesbian and Gay Issues, reprinted in Nat’l Ass’n
of Social Workers, Social World Speaks: NASW
Policy Statements 162 (3d ed. 1994) . . . . . . . . . . . . . . . . . 17
National Gay and Lesbian Task Force, Hate Crime
Laws in the U.S., available at http://www.ngltf.
org/downloads/hatecrimeslawsmap.pdf
(accessed Jan. 14, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Amit R. Paley, The Secret Court of 1920, Harv.
Crimson, Nov. 21, 2002, available at http:
//www.thecrimson.com/article.aspx?ref=
255428 (accessed Jan. 14, 2003) . . . . . . . . . . . . . . . . . . . . 47
People for the American Way Foundation,
Hostile Climate: Report on Anti-Gay Activity
(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Letitia A. Peplau, Lesbian and Gay Relationships,
in Homosexuality (J. Gonsiorek & J. Weinrich
eds., 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ellen C. Perrin, Technical Report: Coparent
or Second-Parent Adoption by Same-Sex Parents,
109 Pediatrics 341 (Feb. 2002) . . . . . . . . . . . . . . . . . . . . . 18
Richard A. Posner & Katharine B. Silbaugh, A
Guide to America’s Sex Laws (1996) . . . . . . . . . . . . . . . . . 23
Richard A. Posner, Sex and Reason (1992) . . . . . . . . . 13, 22
Lewis F. Powell, Jr., Stare Decisis and Judicial
Restraint, 1991 J. S. Ct. Hist. 13 . . . . . . . . . . . . . . . . . . . . 29
Resolution of the American Psychiatric Ass'n
(Dec. 15, 1973), 131 Am J. Psychiatry 497 (1974) . . . . . 16
xx
TABLE OF AUTHORITIES - continued
Page
Jed Rubenfeld, The Right of Privacy, 102 Hav. L.
Rev. 783 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
William B. Rubenstein et al., Some Demographic
Characteristics of the Gay Community in the United
States (Williams Project, UCLA School of
Law 2003), available at http://www1.law.ucla.
edu/~erg/pubs/GD/GayDemographics.pdf
(accessed Jan. 15, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A Vicious Attack on Gay Student, Beaten, Burned
and Left for Dead, N.Y. Newsday, Oct. 10, 1998,
at A4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48
Jo Ann Zuniga, Gay Parents Are Fighting Back
Against Blackmail, Court Bias, Hous. Chron.,
June 27, 1994, at A11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
The State of Texas arrested Petitioners Lawrence and Garner,
charged them with a crime, and convicted them under the State’s
“Homosexual Conduct” law for engaging in consensual same-sex
intimacy in the privacy of Lawrence’s home. The Texas law and
Petitioners’ convictions are constitutionally indefensible for two
reasons. First, the law discriminates without a legitimate and
rational State purpose, in violation of the Equal Protection Clause.
In 1973, Texas broke with both the evenhanded laws of the past
and the decisive modern trend toward decriminalization. Instead,
the State chose to criminalize consensual, adult sexual behaviors
only for those whose partners are of the same sex – gay men and
lesbians. Texas’s decision to classify along that line brands gay
men and lesbians as lawbreakers and fuels a whole range of
further discrimination, effectively relegating them to a form of
second-class citizenship. Second, this criminal law directly
implicates fundamental interests in intimate relationships, bodily
integrity, and the home. Texas’s law and the few other remaining
consensual sodomy statutes – both those that discriminate and
those that do not – trample on the substantive liberty protections
that the Constitution erects in order to preserve a private sphere
shielded from government intrusion. Here, where the State
authorizes such intrusion into the homes and lives only of samesex couples, the constitutional injury is especially clear and
disturbing.
OPINIONS AND ORDERS BELOW
The Texas Court of Criminal Appeals’ orders refusing
discretionary review are unreported. Pet. App. 1a, 2a. The
decision of the en banc Court of Appeals for the Fourteenth District
of Texas is reported at 41 S.W.3d 349. Pet. App. 4a. The court’s
prior panel opinion is unreported. Pet. App. 80a. The judgments
of the Harris County Criminal Court are unreported. Pet. App.
107a, 109a.
JURISDICTION
The judgment of the Court of Appeals was entered on March
15, 2001. Pet. App. 3a. On April 17, 2002, the Texas Court of
Criminal Appeals denied a timely consolidated petition for
2
discretionary review. Pet. App. 1a, 2a. Petitioners filed their
timely petition for a writ of certiorari in this Court on July 16,
2002. This Court’s jurisdiction rests on 28 U.S.C. § 1257(a).
STATUTORY AND CONSTITUTIONAL PROVISIONS
Texas Penal Code § 21.06 (“Homosexual Conduct”) provides:
“(a) A person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex. (b) An
offense under this section is a Class C misdemeanor.”
Texas Penal Code § 21.01(1) provides: “‘Deviate sexual
intercourse’ means: (A) any contact between any part of the
genitals of one person and the mouth or anus of another person;
or (B) the penetration of the genitals or the anus of another person
with an object.”
The Fourteenth Amendment to the United States Constitution
provides, in relevant part: “No State shall . . . deprive any person
of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1.
STATEMENT OF THE CASE
A. Petitioners’ Arrests, Convictions, and Appeals.
Late in the evening of September 17, 1998, Harris County,
Texas, sheriff’s officers entered John Lawrence’s home and there
intruded on Lawrence and Tyron Garner having sex. The officers
were responding to a false report of a “weapons disturbance.”
Pet. App. 129a, 141a.1 They arrested Petitioners, jailed them, and
did not release them from custody until the next day. Clerk’s
Record in State v. Lawrence, at 3 (“C.R.L.”); Clerk’s Record in State
v. Garner, at 3 (“C.R.G.”).
The State charged Petitioners with violating the Texas
“Homosexual Conduct” statute, Tex. Pen. Code § 21.06 (the
“Homosexual Conduct Law” or “Section 21.06”), which
1
The person who called in the report later admitted his allegations
were false and was convicted of filing a false report. See R.A. Dyer, Two Men
Charged Under State’s Sodomy Law, Hous. Chron., Nov. 6, 1998, at A1.
3
criminalizes so-called “deviate sexual intercourse” with another
person of the same sex, but not identical conduct by different-sex
couples. Id. The sole facts alleged by the State to make out a
violation were that each Petitioner “engage[d] in deviate sexual
intercourse, namely anal sex, with a member of the same sex
(man).” Pet. App. 127a, 139a. The State did not allege that the
conduct was public, non-consensual, with a minor, or in exchange
for money. Id. The charges rested solely on consensual, adult
sexual relations with a partner of the same sex in the privacy
of Lawrence’s home. Id.
After proceedings and initial convictions in the Justice of the
Peace Court, Petitioners appealed for a trial de novo to the Harris
County Criminal Court. C.R.L. 15; C.R.G. 12. They filed motions
to quash the charges on the ground that the law violates the
Fourteenth Amendment’s guarantees of equal protection and
privacy, both on its face and as applied to their “consensual, adult,
private sexual relations with another person of the same sex.”
Pet. App. 117a-118a, 121a-122a, 130a-131a, 134a-135a. On
December 22, 1998, the court denied the motions to quash. Pet.
App. 113a. Lawrence and Garner then pled nolo contendere, Pet.
App. 114a, preserving, under Texas procedural rules, their right
to pursue previously asserted defenses. Tex. Code Crim. P. § 44.02.
The court imposed on each a fine of $200 and court costs of
$141.25. Pet. App. 107a-108a, 109a-110a, 116a.
In consolidated appeals to the Texas Court of Appeals,
Lawrence and Garner argued that Section 21.06 impermissibly
discriminates between citizens “[u]nder any characterization
of the classification.” Amended Brief of Appellants at 4, 5, 6-17
(Tex. App. filed Apr. 30, 1999) (“Am. Br.”); Additional Brief of
Appellants 1 n.1, 14-22 (Tex. App. filed Aug. 11, 2000) (“Add’l
Br.”); Petition for Discretionary Review at 7-13 (Tex. Crim. App.
filed Apr. 13, 2001) (“Pet. Disc. Rev.”). Petitioners also argued
that the statute invades their right of privacy and preserved their
contention that Bowers v. Hardwick, 478 U.S. 186 (1986), was
wrongly decided. Am. Br. 5, 23-26; Add’l Br. 23 n.20; Pet. Disc.
Rev. 16-19.
4
At oral argument in the Court of Appeals, counsel for the
State conceded that “he could not ‘even see how he could begin
to frame an argument that there was a compelling State interest’”
served by Section 21.06. Pet. App. 76a (quoting counsel for Texas).
Texas has repeatedly identified its only aim as “enforcement of
principles of morality and the promotion of family values.” See,
e.g., State’s Brief in Support of Rehearing En Banc 16 (Tex. App.
filed Aug. 23, 2000) (“States’ Br. in Supp. of Reh’g En Banc”).
On June 8, 2000, a panel of the Court of Appeals reversed
Petitioners’ convictions under the Texas Equal Rights Amendment,
holding that Section 21.06 impermissibly discriminates on the
basis of sex. Pet. App. 86a-92a. After rehearing en banc, the Court
of Appeals reinstated Petitioners’ convictions on March 15, 2001.
Pet. App. 3a, 4a. Citing Bowers, the court rejected Petitioners’
substantive due process claim. Pet. App. 24a-31a. As to the
federal equal protection claim, the court held that the statute was
subject to and survived rational basis review, because it “advances
a legitimate state interest, namely, preserving public morals.”
Pet. App. 13a. The court distinguished Romer v. Evans, 517 U.S.
620 (1996), as limited to discrimination in the right to seek
legislation. Pet. App. 14a-15a.
Two Justices of the appellate court “strongly” dissented from
the rejection of Petitioners’ federal equal protection arguments.
Pet. App. 42a. The dissent reasoned that:
where the same conduct, defined as “deviate sexual
intercourse[,]” is criminalized for same sex participants
but not for heterosexuals[,] [t]he contention that the same
conduct is moral for some but not for others merely
repeats, rather than legitimizes, the Legislature’s
unconstitutional edict.
Pet. App. 44a. Petitioners timely sought discretionary review
from the Texas Court of Criminal Appeals, which was refused.
Pet. App. 1a, 2a.
B. The Homosexual Conduct Law
The Homosexual Conduct Law is of comparatively recent
5
vintage. It was enacted in 1973 when Texas repealed all of its
then-existing laws that criminalized private sexual conduct
between consenting adults. See 1973 Tex. Gen. Laws ch. 399,
§§ 1, 3. Prior to that time, the criminality of consensual sexual
conduct in Texas did not depend on whether a couple was samesex or different-sex. In particular, oral as well as anal sex was
a crime for all. 1943 Tex. Gen. Laws ch. 112, § 1. See generally
Baker v. Wade, 553 F. Supp. 1121, 1148-53 (N.D. Tex. 1982)
(reviewing history of Texas sodomy laws), rev’d, 769 F.2d 289
(5th Cir. 1985) (en banc).2 Until 1973 Texas also criminalized
fornication and adultery. See Tex. Pen. Code arts. 499-504 (1952)
(repealed by 1973 Tex. Gen. Laws, ch. 399, § 3).
The 1973 repeals abolished all those crimes, 1973 Tex. Gen.
Laws ch. 399, § 3, freeing heterosexual adult couples, married
or unmarried, to engage in all forms of consensual, private,
noncommercial sexual intimacy without state intrusion. In the
same enactment, however, the Legislature adopted Section 21.06,
see id. § 1, which for the first time singled out same-sex couples
for criminal sanctions. Section 21.06 applies to “deviate sexual
intercourse,” which is defined as oral, anal, and certain other
sexual conduct without regard to whether the actors are of the
same or different sexes. See Tex. Pen. Code § 21.01(1).3 But
“deviate sexual intercourse” is not a crime when engaged in
2
Before 1943, an 1860 statute criminalized “the abominable and
detestable crime against nature,” Tex. Pen. Code art. 342 (1860); see Baker, 553
F. Supp. at 1148, which was held not to apply to oral sex. See, e.g., Munoz v.
State, 281 S.W. 857 (Tex. Crim. App. 1926); Prindle v. State, 21 S.W. 360, 361
(Tex. Crim. App. 1893). Like the 1943 law, however, the 1860 statute applied
to heterosexual as well as homosexual conduct. See Adams v. State, 86 S.W.
334 (Tex. Crim. App. 1905); Lewis v. State, 35 S.W. 372 (Tex. Crim. App. 1896).
3
The present definition of “deviate sexual intercourse” reflects a 1981
amendment adding § 21.01(1)(B) to encompass penetration with “objects,”
which has been construed to include any part of the body. See C.M. v. State,
680 S.W.2d 53, 55-56 (Tex. App. 1984). In 1993, facing a sunset provision,
Texas reenacted most of the Penal Code, including Section 21.06. See 1993
Tex. Sess. Law Serv. ch. 900 (Vernon). Several attempts to repeal the law
have failed, see, e.g., H.B. 687, 2001 Leg. 77th (R) Sess. (Tex.); see also Baker,
553 F. Supp. at 1126 & n.4, 1151.
6
privately by two consenting adults of different sexes. Rather,
Section 21.06 criminalizes only “Homosexual Conduct,” making
it a punishable offense to engage in “deviate sexual intercourse
with another individual of the same sex,” but not identical conduct
by heterosexual couples. Tex. Pen. Code § 21.06.4
Texas, of course, also has and enforces other laws that
criminalize sexual conduct that takes place in public, Tex. Pen.
Code §§ 21.07(a)(2), 21.08, that is violent or without consent, id.
§ 22.011(a)(1), that is in exchange for money, id. § 43.02, or that
is committed with a minor, id. §§ 22.011(a)(2), 21.11. All of these
prohibitions apply without regard to whether the actors are of
the same or different sexes. Section 21.06, in contrast, applies
to non-commercial, consensual, private sexual conduct between
two adults – but only if they are of the same sex.
Because it singles out same-sex couples, this Texas law is
unlike older legal prohibitions of “sodomy,” see infra Point I.A.3,
and differs fundamentally from the facially evenhanded Georgia
law considered by the Court in Bowers, see 478 U.S. at 188 n.1.
The Homosexual Conduct Law was substituted for a facially
nondiscriminatory law at a time when many States, prompted
by changing views about the proper limits of government power
that were reflected in the American Law Institute’s Model Penal
Code, were revising their criminal codes and completely
abandoning offenses like fornication and sodomy. See Model
Penal Code and Commentaries §§ 213.2 cmt. 2, 213.6 note (1980).
By 1986, 26 States had invalidated their sodomy laws. Bowers,
478 U.S. at 193-94. Today, only nine States retain criminal laws
that bar consensual sodomy for all.5 Between 1969 and 1989,
Texas and seven other States legislatively replaced general laws
with laws targeting homosexual couples. See infra at 21-22 &
4
“Homosexual conduct” is a Class C misdemeanor punishable by a
fine of up to $500. Tex. Pen. Code §§ 21.06(b), 12.23.
5
Ala. Code §§ 13A-6-60(2), 13A-6-65(a)(3); Fla. Stat. Ann. § 800.02;
Idaho Code § 18-6605; La. Rev. Stat. Ann. § 14:89; Miss. Code Ann. § 97-2959; N.C. Gen. Stat. § 14-177; S.C. Code Ann. § 16-15-120; Utah Code Ann.
§ 76-5-403(1); Va. Code Ann. § 18.2-361(A).
7
note 15. Four of those discriminatory laws have already been
judicially invalidated, and one has been repealed. See id. Now
only Texas and two other States criminalize same-sex conduct
but not identical different-sex conduct by statute, while one other
State has reached the same result through judicial construction
of a facially evenhanded law.6 Similarly, all but a few States have
repealed criminal laws prohibiting fornication. Infra note 18.
Since its enactment, Section 21.06 has narrowly survived
several federal and state constitutional challenges. In Baker v.
Wade, a federal district court held that Section 21.06 violates the
constitutional rights of privacy and equal protection. 553 F. Supp.
at 1125. The court rejected the State’s claimed justifications for
Section 21.06 and found that, even when not enforced, the law
results in serious harms to gay persons, including employment
discrimination. Id. at 1130, 1146-47. Although the Texas Attorney
General withdrew the State’s appeal, a divided en banc Fifth Circuit
allowed an appeal by an intervenor and reversed, citing the
summary affirmance in Doe v. Commonwealth’s Attorney, 425 U.S.
901 (1976). Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en
banc).
In the early 1990s, Texas Courts of Appeals declared Section
21.06 unconstitutional in two cases exercising state equity
jurisdiction. City of Dallas v. England, 846 S.W.2d 957 (Tex. App.
1993); State v. Morales, 826 S.W.2d 201 (Tex. App. 1992), rev’d on
jurisdictional grounds, 869 S.W.2d 941 (Tex. 1994). In both cases,
the intermediate appellate court struck down the Homosexual
Conduct Law under the Texas Constitution and found that the
statute inflicted severe harms beyond the direct threat of criminal
convictions. See England, 846 S.W.2d at 959; Morales, 826 S.W.2d
at 202. As the State itself stipulated in Morales, Section 21.06
6
Kansas and Missouri have same-sex-only statutes, Kan. Stat. Ann.
§ 21-3505(a)(1); Mo. Rev. Stat. § 566.090, although one intermediate court of
appeals in Missouri has held that State’s statute applicable only to nonconsensual conduct, State v. Cogshell, 997 S.W.2d 534 (Mo. Ct. App. 1999).
Oklahoma’s general statute has been construed to exclude different-sex
couples. Okla. Stat. tit. 21, § 886; Post v. State, 715 P.2d 1105 (Okla. Crim.
App. 1986).
8
“brands lesbians and gay men as criminals and thereby legally
sanctions discrimination against them in a variety of ways
unrelated to the criminal law.” Id. at 202-03.
In 1994, Morales was set aside by the Texas Supreme Court
as reaching beyond the power of the State’s equity courts. 869
S.W.2d at 943-47. The court ruled that constitutional review
should occur in the context of a criminal prosecution, with final
review in the Texas Court of Criminal Appeals. Id.7 In the present
criminal case, however, the Court of Criminal Appeals refused
to exercise its jurisdiction to review the validity of the law, Pet.
App. 1a, 2a, leaving its burdens in effect throughout Texas.
SUMMARY OF ARGUMENT
As the experience of Lawrence and Garner vividly illustrates,
Section 21.06 puts the State of Texas inside its citizens’ homes,
policing the details of their most intimate and private physical
behavior and dictating with whom they may share a profound
part of adulthood. Texas has enacted and enforced a criminal
law that takes away – from same-sex couples only – the freedom
to make their own decisions, based upon their own values and
relationships, about the forms of private, consensual sexual
intimacy they will engage in or refrain from. The State defends
this law only by saying the majority wants it so. Texas asserts
a power of the majority to free itself from state dictates about
private, consensual sexual choices, while using the criminal law
to condemn and limit the choices of a minority.
This law and its application to Petitioners violate both the
guarantee of equal protection and fundamental liberties
safeguarded by the Fourteenth Amendment. Petitioners explain
below why the equality claim and the liberty claim are each well
rooted in the Constitution. The Court, however, need not rule
on both constitutional violations if it chooses to focus on one
7
Although the Texas Supreme Court did not review England, due to
a jurisdictional defect in that court, see Morales, 869 S.W.2d at 942 n.5 (noting
dismissal of writ of error in England without reaching merits), the state
supreme court’s ruling in Morales removed the underpinnings of England.
9
infirmity rather than the other. Petitioners discuss the
fundamental liberty claim under the Due Process Clause first,
because even if the Court were not to reach that issue, a full
appreciation of the personal interests affected by Section 21.06
also illuminates and informs the equal protection analysis that
follows.
Fundamental liberty and privacy interests in adults’ private,
consensual sexual choices are essential to the ordered liberty our
Constitution protects. The State may not, without overriding
need, regiment and limit this personal and important part of its
citizens’ lives. More so than in 1986, when Bowers v. Hardwick
was decided, it is clear today that such a fundamental right is
supported by our basic constitutional structure, by multiple lines
of precedent, and by a decisive historical turn in the vast majority
of the States to repudiate this type of government invasion into
private life. The well-established fundamental interests in intimate
relationships, bodily integrity, and the sanctity of the home all
converge in the right asserted here. See Griswold v. Connecticut,
381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Planned
Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). That right
belongs to all Americans, including gay men and lesbians, and
should be shielded from Section 21.06’s unjustified invasion.
Much more is needed to outweigh fundamental individual
interests than the majority’s preferences. Indeed, the Fourteenth
Amendment’s protection of liberty exists to guard against the
very impulse Texas acted on here. Principles of stare decisis do
not, in these circumstances, justify adherence to Bowers.
Texas also has violated the Fourteenth Amendment’s
guarantee of equal protection of the laws. The Homosexual
Conduct Law creates classes of persons, treating the same acts
of consensual sexual behavior differently depending on who
the participants are. By this law, Texas imposes a discriminatory
prohibition on all gay and lesbian couples, requiring them to
limit their expressions of affection in ways that heterosexual
couples, whether married or unmarried, need not. The law’s
discriminatory focus sends the message that gay people are
10
second-class citizens and lawbreakers, leading to ripples of
discrimination throughout society. Such a discriminatory law
cannot satisfy even the minimal requirement that a legislative
classification must be rationally related to a legitimate State
purpose. See Romer, 517 U.S. 620. The bare negative attitudes
of the majority, whether viewed as an expression of morality,
discomfort, or blatant bias, cannot take away the equality of a
smaller group. See id.; United States Dep’t of Agric. v. Moreno, 413
U.S. 528, 534 (1973); City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 448 (1985).
ARGUMENT
I. Section 21.06 Violates Constitutional Rights to Liberty and
Privacy Possessed by All Americans.
“It is a promise of the Constitution that there is a realm of
personal liberty which the government may not enter.” Casey,
505 U.S. at 847. It is well settled that the Due Process Clause of
the Fourteenth Amendment guarantees the personal liberty of
Americans against encroachment by the States, and that this
protection of liberty encompasses substantive fundamental rights
and interests that are unenumerated. See, e.g., Troxel v. Granville,
530 U.S. 57, 65-66 (2000); Casey, 505 U.S. at 846-51; Cruzan v.
Director, Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990); Carey
v. Population Servs. Int’l, 431 U.S. 678, 684-85 (1977); Moore v. City
of E. Cleveland, 431 U.S. 494, 501-03 (1977); Roe v. Wade, 410 U.S.
113, 152-53 (1973); Griswold, 381 U.S. at 482-85; Pierce v. Society
of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35
(1925); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923). Giving
substance to “liberty” is necessary to maintain the individual
freedoms that are the essence of American democracy, while
also allowing government action that is justified by the collective
good. See Casey, 505 U.S. at 849-51.
Among the liberties protected by the Constitution is the right
of an adult to make choices about whether and in what manner
to engage in private consensual sexual intimacy with another
adult, including one of the same sex. This extremely personal
11
sphere implicates three aspects of liberty that have long been
recognized as fundamental: the interests in intimate associations,
in bodily integrity, and in the privacy of the home. For the State
to limit and dictate the intimate choices of American couples
in this realm without any substantial justification is repugnant
to ordered liberty. Stare decisis does not require continued
adherence to the Court’s contrary decision in Bowers.
A. American Adults Have Fundamental Liberty and Privacy
Interests in Making Their Own Choices About Private,
Consensual Sexual Relations.
1. Well-Established Protections for Intimate Relationships,
Bodily Integrity, and the Privacy of the Home Converge
in This Vital Freedom.
Being forced into a life without sexual intimacy would
represent an intolerable and fundamental deprivation for the
overwhelming majority of individuals. Equally repugnant is
any form of external compulsion to engage in sexual relations.
There should be no doubt, then, that the Constitution imposes
substantive limits on the power of government to compel, forbid,
or regulate the intimate details of private sexual relations between
two consenting adults.
All adults have the same fundamental liberty interests in their
private consensual sexual choices. This fundamental protection
is rooted in three well-recognized aspects of personal liberty –
in intimate relationships, in bodily integrity, and in the privacy
of the home. These aspects of liberty should not be viewed as
“a series of isolated points,” but are part of a “rational continuum”
that constitutes the full scope of liberty of a free people. Casey,
505 U.S. at 848 (quotation marks omitted); see also Board of Regents
v. Roth, 408 U.S. 564, 572 (1972) (“In a Constitution for a free
people, there can be no doubt that the meaning of ‘liberty’ must
be broad indeed”). Sexual intimacy marks an intensely personal
and vital part of that continuum.
The Court has recognized that “choices to enter into and
maintain certain intimate human relationships must be secured
12
against undue intrusion by the State because of the role of such
relationships in safeguarding the individual freedom that is central
to our constitutional scheme.” Roberts v. United States Jaycees,
468 U.S. 609, 617-18 (1984). “[T]he constitutional shelter afforded
such relationships reflects the realization that individuals draw
much of their emotional enrichment from close ties with others.
Protecting these relationships from unwarranted state interference
therefore safeguards the ability independently to define one’s
identity that is central to any concept of liberty.” Id. at 619; see
also Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481
U.S. 537, 545-46 (1987).
The adult couple whose shared life includes sexual intimacy
is undoubtedly one of the most important and profound forms
of intimate association. The Court has rightly recognized that
regulation of the private details of sexual relations between two
adults sharing an intimate relationship has “a maximum
destructive impact upon that relationship.” Griswold, 381 U.S.
at 485. Griswold struck down a law that intruded directly into
a married couple’s private sexual intimacy – and thus their
intimate relationship – by criminalizing the use of contraceptives
and allowing intercourse only if accompanied by the risk of
pregnancy. Id. at 485-86. Since Griswold, the Court has recognized
that all adults, regardless of marital status or other facets of their
relationship, have the same interest in making their own intimate
choices in this area. See Eisenstadt, 405 U.S. at 453 (“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 affecting a person”) (emphasis
in original); Casey, 505 U.S. at 898 (“The Constitution protects
all individuals, male or female, married or unmarried, from the
abuse of governmental power”); id. at 852 (reaffirming Eisenstadt
and Griswold).
Sexual intimacy is “a sensitive, key relationship of human
existence, central to family life, community welfare, and the
development of human personality.” Paris Adult Theatre I v. Slaton,
413 U.S. 49, 63 (1973). One’s sexual orientation, the choice of
13
one’s partner, and whether and how to connect sexually are
profound attributes of personhood where compulsion by the
State is anathema to liberty. Cf. Casey, 505 U.S. at 851.8 Thus,
the essential associational freedom here is the freedom to structure
one’s own private sexual intimacy with another adult. Section
21.06 utterly destroys that freedom by forbidding most sexual
behavior for all same-sex couples, whether they are in a
committed, long-standing relationship, a growing one, or a new
one.
State regulation of sexual intimacy also implicates the liberty
interest in bodily integrity. “It is settled now . . . that the
Constitution places limits on a State’s right to interfere with a
person’s most basic decisions about . . . bodily integrity.” Casey,
505 U.S. at 849 (citations omitted); see also id. at 896 (“state
regulation . . . is doubly deserving of scrutiny . . . [where] the
State has touched not only upon the private sphere of the family
but upon the very bodily integrity of the pregnant woman”).
Stated generally, “[e]very human being of adult years and sound
mind has a right to determine what shall be done with his own
body.” Glucksberg, 521 U.S. at 777 (Souter, J., concurring)
(quotation marks omitted); see also id. at 720; Rochin v. California,
342 U.S. 165, 166, 173-74 (1952); Cruzan, 497 U.S. at 278.
Control over one’s own body is fundamentally at stake in
sexual relations, involving as they do the most intimate physical
interactions conceivable. Like the decision whether to continue
or terminate a pregnancy, or the decision whether to permit or
decline medical procedures, the physical, bodily dimensions of
how two persons express their sexuality in intimate relations
are profoundly personal. Indeed, consent is a critically important
dividing line in legal and societal views about sexuality for the
8
For many adults in modern society, sexual intimacy is an important
aspect of forming or building a committed relationship where one does not
already exist. See Roberts, 468 U.S. at 618 (Constitution protects “the formation
and preservation” of “highly personal relationships”) (emphasis added);
Richard A. Posner, Sex and Reason 349 (1992) (“Consensual sex in whatever
form is as we know a method of cementing a relationship”).
14
very reason that individual control over sexual activity is of
fundamental importance to every person’s autonomy. Texas
invades the liberty interest in bodily integrity by dictating that
citizens may not share sexual intimacy unless they perform acts
approved by the legislature, and by attempting to coerce them
to select a sexual partner of the other sex.
The liberty interest at issue here also involves the deeply
entrenched interest in the privacy of the home. “In the home,
[the Court’s] cases show, all details are intimate details, because
the entire area is held safe from prying government eyes.” Kyllo
v. United States, 533 U.S. 27, 37 (2001) (emphasis in original);
Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight guest receives
protection under “everyday expectations of privacy that we all
share”). The importance of shielding the home from intrusion
goes beyond the Fourth Amendment. In Frisby v. Schultz, 487
U.S. 474 (1988), for example, the Court relied on the constitutional
status of the home in rejecting a First Amendment challenge to
an ordinance against picketing targeted at a home. Id. at 484 (“The
State’s interest in protecting the well-being, tranquility, and
privacy of the home is certainly of the highest order in a free and
civilized society”) (quotation marks omitted). And constitutional
protection for the home was an important consideration in
Griswold itself. See 381 U.S. at 485 (rejecting intrusion into “sacred
precincts of marital bedrooms”). “[I]f the physical curtilage of
the home is protected, it is surely as a result of the solicitude to
protect the privacies of the life within.” Poe v. Ullman, 367 U.S.
497, 551 (1961) (Harlan, J., dissenting); see also Stanley v. Georgia,
394 U.S. 557 (1969).
Even without actual physical entry by the police, Section 21.06
directly invades the privacy of the home by criminalizing the
private intimate conduct taking place there. Poe, 367 U.S. at 549,
551-52 (Harlan, J., dissenting). But this case also graphically
illustrates how laws criminalizing consensual adult sexual
intimacy permit invasion of the privacy of the home in the starkest
sense. Although Petitioners do not challenge the lawfulness of
the police entry into Lawrence’s home in response to a report
15
of an armed gunman, the officers did not withdraw after
discovering the report was false. Instead, under license of Section
21.06, they multiplied their intrusion exponentially by scrutinizing
the specific intimate acts in which Petitioners were involved,
arresting them, hauling them off to jail, and charging them with
a crime for which they were later convicted.
Denying the existence of a liberty interest in private
consensual adult sexual activity would give constitutional
legitimacy to the grossest forms of intrusion into the homes of
individuals and couples. To investigate this “criminal” conduct,
the police could use every investigative method appropriate when
ordinary criminal activity, such as drug use or distribution, occurs
in the home: obtaining warrants to search for physical evidence
of sexual activity; interrogating each member of the couple about
the intimate details of the relationship; and surveillance, wiretaps,
confidential informants, and questioning of neighbors. That these
routine police methods are so repugnant and unthinkable in the
context of adult consensual sexual relations is a strong indication
that the conduct at issue differs in a fundamental way from
ordinary criminal conduct that happens to occur in the home.
Cf. Romer, 517 U.S. at 645 (Scalia, J., dissenting) (“‘To obtain
evidence [in sodomy cases], police are obliged to resort to behavior
which tends to degrade and demean both themselves personally
and law enforcement as an institution’”) (quoting Kadish, The
Crisis of Overcriminalization, 374 Annals of Am. Acad. of Pol. &
Soc. Sci. 157, 161 (1967)).9
The core liberty interests at stake in this case are a bulwark
against an overly controlling and intrusive government. The
“fundamental theory of liberty upon which all governments in
9
The argument here in no way implies that ordinary criminal
conduct may find refuge in the home. In the present context, “the privacy
of the home is constitutionally protected not only because the home is seen
as a sanctuary, privileged against prying eyes, but also because it is the place
where most intimate associations are centered.” Kenneth L. Karst, The
Freedom of Intimate Association, 89 Yale L.J. 624, 634 (1980) (footnote omitted);
see also Poe, 367 U.S. at 551 (Harlan, J., dissenting) (“[t]he home derives its
pre-eminence as the seat of family life”).
16
this Union repose excludes any general power of the state to
standardize,” Pierce, 268 U.S. at 535, or “to coerce uniformity,”
West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943).
The right of privacy exists because democracy must
impose limits on the extent of control and direction that
the state exercises over the day-to-day conduct of
individual lives. . . . People do not meaningfully govern
themselves if their lives are . . . molded into standard,
rigid, normalized roles.
Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 783, 804-05
(1989).
2. There Is No Constitutional Exception to Liberty for Gay
and Lesbian Citizens.
Gay and lesbian Americans have the same liberty interests
as heterosexuals in private consensual sexual intimacy free from
unwarranted intrusion by the State. Gay adults, like their
heterosexual counterparts, have vital interests in their intimate
relationships, their bodily integrity, and the sanctity of their
homes. Today, family lives centered on same-sex relationships
are apparent in households and communities throughout the
country. Likewise, the special interplay between the privacy
of the home and individual decisions about sexual expression
applies to lesbians and gay men as it does to others.
A gay or lesbian sexual orientation is a normal and natural
manifestation of human sexuality. A difference in sexual
orientation means a difference only in that one personal
characteristic. Mental health professionals have universally
rejected the erroneous belief that homosexuality is a disease.
For example, in 1973 the American Psychiatric Association
concluded that “homosexuality per se implies no impairment
in judgment, stability, reliability, or general social or vocational
capabilities.”10 For gay adults, as for heterosexual ones, sexual
10
Resolution of the American Psychiatric Ass’n (Dec. 15, 1973), 131 Am.
J. Psychiatry 497 (1974); accord American Psychological Ass’n, Minutes of the
Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633
17
expression is integrally linked to forming and nurturing the close
personal bonds that give humans the love, attachment, and
intimacy they need to thrive. See, e.g., Lawrence A. Kurdeck,
Sexuality in Homosexual and Heterosexual Couples, in Sexuality in
Close Relationships 177-91 (K. McKinney & S. Sprecher eds., 1991);
Christopher R. Leslie, Creating Criminals: The Injuries Inflicted
by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103, 119-20
(2000). “[M]ost lesbians and gay men want intimate relationships
and are successful in creating them. Homosexual partnerships
appear no more vulnerable to problems and dissatisfactions than
their heterosexual counterparts.” Letitia A. Peplau, Lesbian and
Gay Relationships, in Homosexuality 177, 195 (J. Gonsiorek & J.
Weinrich eds., 1991). Same-sex relationships often last a lifetime,
and provide deep sustenance to each member of the couple. See,
e.g., A. Steven Bryant & Demian, Relationship Characteristics of
American Gay and Lesbian Couples, 1 J. Gay & Lesbian Soc. Servs.
101 (1994).
That gay Americans have exactly the same vital interests as
all others in their bodily integrity and the privacy of their homes
is so plain that it appears never to have been disputed in the law.
In contrast, the vital liberty interest that gay adults have in their
intimate relationships has not always been recognized. Even
a few decades ago, intense societal pressure, including many
anti-gay government measures, ensured that the vast majority
of gay people hid their sexual orientation – even from their own
parents – and thus hid the important intimate relationships that
gave meaning to their lives. See infra Point II.B.2. Lesbians and
gay men, moreover, were falsely seen as sick and dangerous.
See infra at 46. As recently as 1986, it was still possible not to
perceive the existence and dignity of the families formed by gay
adults. See, e.g., Bowers, 478 U.S. at 191, 195.
Today, the reality of these families is undeniable. The 2000
United States Census identified more than 600,000 households
(1975); National Ass’n of Social Workers, Policy Statement on Lesbian and Gay
Issues, reprinted in Nat’l Ass’n of Social Workers, Social World Speaks: NASW
Policy Statements 162, 162-65 (3d ed. 1994).
18
of same-sex partners nationally, including almost 43,000 in Texas.
These families live in 99.3% of American counties.11 Many state
and local governments and thousands of private employers have
adopted domestic partner benefits or more extensive protections
for same-sex couples.12 Virtually every State permits gay men
and lesbians to adopt children individually, jointly and/or
through “second-parent adoptions” that are analogous to
stepparent adoptions. See, e.g., Lofton v. Kearney, 157 F. Supp.
2d 1372, 1374 n.1 (S.D. Fla. 2001) (observing that Florida is
currently “the only state” “to statutorily ban adoption by gay
or lesbian adults”); American Law Inst., Principles of the Law of
Family Dissolution: Analysis and Recommendations § 2.12 cmt. f,
at 312 (2002). These and other legal doctrines have secured
parental bonds for many of the estimated millions of children
in the United States with gay parents. Ellen C. Perrin, Technical
Report: Coparent or Second-Parent Adoption by Same-Sex Parents,
109 Pediatrics 341, 341 & n.1 (Feb. 2002) (estimating one to nine
million children with at least one lesbian or gay parent); see also,
e.g., T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001) (allowing claim for
partial custody by lesbian second parent under in loco parentis
doctrine).
The reality of these families cannot be disregarded just because
they do not match the “nuclear” model of a married couple with
their biological children. See, e.g., Troxel, 530 U.S. at 63 (“The
demographic changes of the past century make it difficult to speak
of an average American family. The composition of families varies
greatly from household to household”); id. at 85 (Stevens, J.,
dissenting); id. at 98-101 (Kennedy, J., dissenting); Michael H. v.
Gerald D., 491 U.S. 110, 124 n.3 (1989) (plurality opinion) (“The
family unit accorded traditional respect in our society . . . includes
11
See William B. Rubenstein, et al., Some Demographic Characteristics of
the Gay Community in the United States 3 (Table 1), 5 (Williams Project, UCLA
School of Law 2003), available at http://www1.law.ucla.
edu/~erg/pubs/GD/GayDemographics.pdf (accessed Jan. 15, 2003).
12
See Employers That Offer Domestic Partner Health Benefits, available
at http://www.hrc.org/worknet/dp/index.asp (accessed Jan. 15, 2003).
19
the household of unmarried parents and their children”). For
gay men and lesbians, their family life – their intimate associations
and the homes in which they nurture those relationships – is every
bit as meaningful and important as family life is to heterosexuals.
Thus, the liberty interest at issue here should not be defined
in terms of sexual orientation as the “right of homosexuals to
engage in acts of sodomy,” Bowers, 478 U.S. at 191, or reduced
in value on that account. If heterosexual adults have a
fundamental interest in consensual sexual intimacy, including
the choice to engage in oral or anal sex, then so too must
homosexual adults. The Due Process Clause itself does not
distinguish among classes of citizens, extending the Constitution’s
shield to the highly personal associations and choices of some,
but not protecting the very same associations and choices for
others. These liberties are important to and protected for all
Americans.
3.
Objective Considerations Support Recognition of
Fundamental Interests Here.
To ensure that its decisions in this area are firmly grounded,
the Court has sought objective guideposts for the recognition
of fundamental liberties. See County of Sacramento v. Lewis, 523
U.S. 833, 857-58 (1998) (Kennedy, J., concurring, joined by
O’Connor, J.) (emphasizing that “objective considerations,”
including but not limited to “history and precedent,” determine
substantive due process interests). As just discussed, this Court’s
precedents and our constitutional structure indicate that the
personal liberty protected by the Constitution must include adults’
private choices about sexual intimacy. Foremost among other
guideposts has been the history of legislation concerning the
matter at hand, from prior centuries through the present. See,
e.g., Glucksberg, 521 U.S. at 710-19.
In reviewing relevant legal traditions, the Court has made
clear that protected liberty interests are not limited to those
explicitly recognized when the Fourteenth Amendment was
ratified. Casey, 505 U.S. at 847, 850 (“such a view would be
20
inconsistent with our law”); Rochin, 342 U.S. at 171-72 (“To believe
that . . . judicial exercise of judgment could be avoided by freezing
‘due process of law’ at some fixed stage of time or thought is
to suggest that the most important aspect of constitutional
adjudication is a function for inanimate machines and not for
judges”). Abundant examples exist of the Court giving meaning
to contemporary truths about freedom, where earlier generations
had failed to acknowledge and specify an essential aspect of
liberty. See, e.g., Turner v. Safley, 482 U.S. 78, 94-99 (1987); Roe,
410 U.S. at 152-53; Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold,
381 U.S. at 482-85; Pierce, 268 U.S. at 534-35; Meyer, 262 U.S. at
399-400. See generally Casey, 505 U.S. at 847-48.
Similarly, in cases rejecting asserted liberty interests, the
Court’s decisions have never rested on past legal history alone.
Because constitutional “tradition is a living thing,” Casey, 505
U.S. at 850 (quotation marks omitted), the Court has always
deemed it essential that the relevant legal tradition have
continuing vitality today. In Glucksberg, for example, the Court
rejected the claimed liberty interest in doctor-assisted suicide
based not only on the common law’s criminalization of assisted
suicide, but also on the fact that “the States’ assisted-suicide bans
have in recent years been reexamined and, generally” – with a
single exception – “reaffirmed.” 521 U.S. at 716; see also Michael
H., 491 U.S. at 127. Even in Bowers, the Court looked not only
to criminal laws concerning sodomy in 1787 and 1868, but also
to the fact that half the States continued to outlaw such conduct
in 1986. 478 U.S. at 192-94.13
13
The Court has repeatedly rejected the notion that fundamental
rights encompass only those recognized at “the most specific level” at the
time the Fourteenth Amendment was adopted. Casey, 505 U.S. at 847-59;
Michael H., 491 U.S. at 132 (O’Connor, J., joined by Kennedy, J., concurring
in part) (the Court’s cases have discussed “asserted rights at levels of
generality that might not be ‘the most specific level’ available”). While the
Court has sought carefully to describe fundamental liberty interests, as
Petitioners do in this case, careful description means neither restriction to the
most specific level nor limitation to historically recognized rights. Moreover,
to the extent the Court prefers to characterize the asserted right parallel to
the historical legal treatment, laws regulating consensual sex between adults,
21
Over the last half century, the Nation has firmly broken from
its prior legal tradition of criminalizing many adult choices about
private sexual intimacy. Even before 1960, however, the relevant
legal tradition is more complicated than an initial examination
might reveal. Bowers observed that when the Fourteenth
Amendment was ratified, 32 of 37 States had criminal laws against
sodomy. 478 U.S. at 192-93. But a critical feature of those 19thcentury and earlier laws was not discussed by the Bowers majority:
Almost without exception, such laws historically have applied
to certain specified sex acts without regard to whether same-sex
or different-sex couples were involved. See, e.g., Anne B.
Goldstein, History, Homosexuality, and Political Values, 97 Yale
L.J. 1073, 1082-86 (1988).14 In addition, actual prosecutions for
private intimacy have been exceedingly rare since the Nation’s
founding. See John D’Emilio & Estelle B. Freedman, Intimate
Matters: A History of Sexuality in America 66-67 (1988). And the
scope of the specific sexual conduct covered has varied over time.
See, e.g., Goldstein, 97 Yale L.J. at 1085-86.
Texas law is a case in point. A Texas statute adopted in 1860
penalized “the abominable and detestable crime against nature”
for all persons, Tex. Pen. Code art. 342 (1860); supra note 2, and
an amendment in 1943 extended that ban to oral sex for all
persons, 1943 Tex. Gen. Laws ch. 112, § 1. See supra at 5. Only
in 1973 did Texas – like a handful of other States in the same
period – replace its general ban with one that singled out the
sexual intimacy of same-sex couples for criminal prohibition.
and state decisions to abolish such regulation, have almost always been
written generally – not specifically to apply only to same-sex relationships.
14
In 1868, at most three of the 32 States with sodomy prohibitions
limited them to sexual conduct between two men; even in those three States,
however, there is some uncertainty whether heterosexual couples were also
covered. See Goldstein, 97 Yale L.J. at 1084 nn.60 & 66. Statutes using the
word “mankind” frequently included sexual relations between men and
women, as was the case in Texas. See Lewis, 35 S.W. at 372 (“Woman is
included under the term ‘mankind’”). In any event, three of 37 States is no
legal tradition.
22
1973 Tex. Gen. Laws ch. 399, §§ 1, 3.15 Thus, our Nation has no
longstanding legal tradition of defining permissible or prohibited
sexual conduct in terms of sexual orientation. Rather, the tradition
exemplified by actual legislation is one of facial neutrality. The
few discriminatory laws singling out lesbians and gay men show
the divide that existed in the 1970s and 1980s between the
majority’s view of its own liberties and its lingering anti-gay
attitudes.
Most importantly, however, both evenhanded and
discriminatory bans on private sexual conduct between consenting
adults have been rejected in contemporary times. Since the 1960s,
there has been a steady stream of repeals and state judicial
invalidations of laws criminalizing consensual sodomy and
fornication.16 “The unmistakable trend . . . nationally . . . is to
curb government intrusions at the threshold of one’s door and
most definitely at the threshold of one’s bedroom.” Jegley v. Picado,
15
See also 1977 Ark. Acts 828 (struck down by Jegley v. Picado, 80
S.W.3d 332 (Ark. 2002)); 1969 Kan. Sess. Laws ch. 180, codified at Kan. Stat.
Ann. § 21-3505; 1974 Ky. Laws ch. 406 (struck down by Commonwealth v.
Wasson, 842 S.W.2d 487 (Ky. 1992)); 1977 Mo. Laws sec. 1, § 566.090, codified
at Mo. Rev. Stat. § 566.090; 1973 Mont. Laws ch. 513 (struck down by Gryczan
v. State, 942 P.2d 112 (Mont. 1997)); 1977 Nev. Stat. ch. 598 (repealed by 1993
Nev. Stat. ch. 236); 1989 Tenn. Pub. Acts ch. 591 (struck down by Campbell v.
Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996)).
16
“With nonmarital sex so utterly commonplace, the word fornication,
with its strong pejorative connotation, has virtually passed out of the
language.” Posner, Sex and Reason 55 (emphasis in original). Likewise,
“sodomy” is a term now used rarely outside legal contexts, while oral sex
and anal sex are openly discussed in the media and society.
Consensual sodomy and fornication have been the only criminal
laws in American history where the State has acted solely to limit forms of
intimacy by consenting adults. Other crimes relating to sexuality have
included additional elements reflecting other state concerns. Adultery and
bigamy laws, for example, aim to enforce the legal marriage contract. Incest
and under-age sex laws, inter alia, seek to protect vulnerable individuals who
may not be capable of true consent. Prostitution and public-sex laws address
commercial or public interactions that have a negative impact on the larger
community. This case concerns the narrow but important freedom to choose
the expressions of sexual intimacy one shares with another adult partner in
private, and does not challenge these other types of State regulation.
23
80 S.W.3d 332, 356 (Ark. 2002) (Brown, J., concurring). By 1986,
when Bowers was decided, 26 States had already removed
consensual sodomy laws from their criminal codes. See 478 U.S.
at 193-94. Today, only 13 States still have such prohibitions.17
Moreover, of those 13 States, Texas and the three others that have
discriminatory rules have eliminated criminal prohibitions in
this area for the vast majority of adult couples. Similarly, only
six States and the District of Columbia still criminalize
fornication.18 In contrast, when Loving was decided in 1967, 16
17
Repeal or invalidation of same-sex-only sodomy laws since Bowers:
1993 Nev. Stat. ch. 236 (repealing Nev. Rev. Stat. § 201.193); Jegley, 80 S.W.3d
332 (Ark.); Wasson, 842 S.W.2d 487 (Ky.); Gryczan, 942 P.2d 112 (Mont.);
Campbell, 926 S.W.2d 250 (Tenn.).
Repeal or invalidation of facially evenhanded sodomy laws since
Bowers: 2001 Ariz. Legis. Serv. 382 (West) (repealing Ariz. Rev. Stat. §§ 131411, 13-1412); 1993 D.C. Laws 10-14 (amending D.C. Stat. § 22-3502 to
exclude private consensual adult conduct); 1998 R.I. Pub. Laws 24 (amending
R.I. Gen. Laws § 11-10-1 to exclude conduct with other persons); Powell v.
State, 510 S.E.2d 18 (Ga. 1998); Williams v. State, No. 98036031/CL-1059, 1998
Extra LEXIS 260 (Md. Cir. Ct. Balt. City Oct. 15, 1998); Michigan Org. for
Human Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. Wayne County July
9, 1990); Doe v. Ventura, No. MC 01-489, 2001 WL 543734 (Minn. Dist. Ct.
May 15, 2001). In Maryland, Michigan, and Minnesota, the States did not
appeal the lower court decisions striking down the laws.
One state high court upheld a sodomy law against a constitutional
challenge in recent years. See State v. Smith, 766 So. 2d 501 (La. 2000).
18
As with sodomy laws, fornication laws have been struck down as
contrary to the right of privacy protected by state constitutions. See, e.g., In
re J.M., No. SO2A1432, 2003 WL 79330 (Ga. Jan. 13, 2003) (invalidating Ga.
Code Ann. § 16-6-18). The fornication laws remaining in seven jurisdictions
criminalize any act of sexual intercourse between unmarried persons. See
D.C. Stat. Ann. § 22-1602; Idaho Code § 18-6603; Mass. Gen. Laws ch. 272,
§ 18; id. ch. 277 § 39; Minn. Stat. § 609.34; Utah Code Ann. § 76-7-104; Va.
Code Ann. § 18.2-344; W. Va. Code § 61-8-3. Seven other States, although
purporting in some cases to proscribe “fornication,” prohibit a narrower
category of sexual intercourse between unmarried persons, such as where
it is “open and notorious,” 720 Ill. Comp. Stat. 5/11-8; N.D. Cent. Code
§ 12.1-20-10, or where the parties cohabit or engage in habitual intercourse,
Fla. Stat. Ann. § 798.02; Mich. Comp. Laws Ann. § 750.335; Miss. Code Ann.
§ 97-29-1; N.C. Gen. Stat. § 14-184; S.C. Code Ann. §§ 16-15-60, 16-15-80. See
generally Richard A. Posner & Katharine B. Silbaugh, A Guide to America’s Sex
Laws 99-102 (1996) (summarizing criminal fornication and cohabitation laws;
24
States still had criminal laws against interracial marriage. Loving,
388 U.S. at 6 n.5; see also id. at 12 (holding that such laws violate
fundamental liberty).
The “consistency of the direction of change” among the States,
Atkins v. Virginia, 122 S. Ct. 2242, 2249 (2002), is indicative of a
strong national consensus reflecting profound judgments about
the limits of government’s intrusive powers in a civilized society.
The principles and sentiments that have led the States to eliminate
these laws are yet another objective indicator of the fundamental
interests at stake. For example, when the Georgia Supreme Court
struck down, under the state constitution, the very law upheld
by this Court in Bowers, it stated: “We cannot think of any other
activity that reasonable persons would rank as more private and
more deserving of protection from governmental interference
than unforced, private, adult sexual activity.” Powell v. State,
510 S.E.2d 18, 24 (Ga. 1998); accord, e.g., Gryczan v. State, 942 P.2d
112 , 122 (Mont. 1997) (“all adults regardless of gender, fully and
properly expect that their consensual sexual activities will not
be subject to the prying eyes of others or to governmental
snooping or regulation”); Campbell v. Sundquist, 926 S.W.2d 250,
261 n.9 (Tenn. App. 1996) (“Infringement of such individual rights
cannot be tolerated until we tire of democracy and are ready for
communism or a despotism”); Commonwealth v. Bonadio, 415 A.2d
47, 50 (Pa. 1980) (“regulat[ing] the private [sexual] conduct of
consenting adults . . . exceeds the valid bounds of the police
power”); State v. Ciuffini, 395 A.2d 904, 908 (N.J. Super. Ct. App.
Div. 1978) (because consensual sodomy law only “serves as an
official sanction of certain conceptions of desirable lifestyles, social
mores, or individualized beliefs, it is not an appropriate exercise
of the police power”). Legislative repeals reflect the same deepseated values. As Governor Jane Hull said when signing the
bill repealing Arizona’s sodomy law, “At the end of the day, I
returned to one of my most basic beliefs about government –
It does not belong in our private lives.” Howard Fischer, Hull
Arizona’s and New Mexico’s laws cited therein were since repealed, see 2001
Ariz. Legis. Serv. ch. 382, § 1 (West); 2001 N.M. Laws ch. 32).
25
OKs Repeal of ‘Archaic’ Sex Laws, Ariz. Daily Star, May 9, 2001,
at A1.
A final confirmation underscoring that America has repudiated
a role for government as enforcer of permitted forms of intimacy
is the virtually non-existent enforcement today of the laws that
still are on the books. In the 13 States that still proscribe sodomy,
the laws are almost never enforced in criminal proceedings against
private consensual intimacy. See Bowers, 478 U.S. at 198 n.2
(Powell, J., concurring) (“prior to the complaint against respondent
Hardwick, there had been no reported decision involving
prosecution for private homosexual sodomy under this statute
for several decades”); Morales, 826 S.W.2d at 203 (“The State
concedes that it rarely, if ever, enforces § 21.06”). But as this rare
case of prosecution vividly demonstrates, the laws remaining
on the books still sometimes strike like lightning, causing the
grossest of governmental invasions of privacy through criminal
enforcement. The Court should recognize the liberty interests
that Petitioners and all Americans have in being free from such
invasions.
B. Texas Cannot Justify Section 21.06’s Criminal
Prohibition of Petitioners’ and Other Adults’ Private
Sexual Intimacy.
Recognition of the fundamental liberty interest at stake here
does not end the inquiry, for due regard must also be given to
any countervailing interests the State may have and the means
used to achieve them. The Court has rejected rigid or mechanical
tests in this area. Rather, it has given careful consideration to
any weighty governmental interests that stand opposed to a
fundamental liberty interest, and has looked closely at the degree
and nature of the burden on the liberty interest, before ruling
on the ultimate question of constitutionality. See, e.g., Casey, 505
U.S. at 849-51 (opinion of Court); id. at 871-79 (plurality opinion
of O’Connor, Kennedy, and Souter, JJ.); Troxel, 530 U.S. at 73
(plurality opinion); id. at 101-02 (Kennedy, J., dissenting); Cruzan,
497 U.S. at 280-81.
26
Here, however, there is no countervailing State interest
remotely comparable to those weighed by this Court in other
recent cases involving fundamental liberties, such as the State’s
interests in protecting the potentiality of human life, Casey, 505
U.S. at 871-79 (opinion of O’Connor, Kennedy, and Souter, JJ.),
in protecting the welfare of children, see Troxel, 530 U.S. at 73
(plurality opinion), or in protecting and preserving existing human
life, Cruzan, 497 U.S. at 280-81. See also Glucksberg, 521 U.S. at
728-35 (reviewing numerous “important and legitimate” interests
furthered by ban on assisted suicide).
In stark contrast to those cases, counsel for Texas has conceded
that Section 21.06 furthers no compelling state interest. Pet. App.
76a. The sole justification urged throughout this litigation by
the State is the majority’s desire to espouse prevailing moral
principles and values. See, e.g., State’s Br. in Supp. of Reh’g En
Banc 16. The State claims no distinct harm or public interest other
than a pure statement of moral condemnation. This Court,
however, has never allowed fundamental freedoms to be
circumscribed simply to enforce majority preferences or moral
views concerning deeply personal matters. See, e.g., Casey, 505
U.S. at 850-51. Indeed, the discriminatory moral standard
employed in the Homosexual Conduct Law is illegitimate under
the Equal Protection Clause. See infra Point II.
In arriving at the constitutional balance, the Court must also
consider that Texas is using “the full power of the criminal law.”
Poe, 367 U.S. at 548 (Harlan, J., dissenting). Section 21.06
empowered the police to inspect closely Lawrence and Garner’s
intimate behavior in Lawrence’s home and haul them off to jail.
Although prosecutions may be rare and wholly arbitrary, this
case shows that the criminal penalties of such laws are on occasion
enforced. Criminal sanctions always impose an extreme burden.
Lawrence and Garner were arrested and held in custody for
more than a day – a humiliating invasion of personal dignity.
“A custodial arrest exacts an obvious toll on an individual’s liberty
and privacy, even when the period of custody is relatively
brief. . . . And once the period of custody is over, the fact of the
27
arrest is a permanent part of the public record.” Atwater v. City
of Lago Vista, 532 U.S. 318, 364-65 (2001) (O’Connor, J., dissenting).
Petitioners now each have a criminal conviction for private
consensual sexuality. This “finding of illegality is a burden by
itself. In addition to a declaration of illegality and whatever legal
consequences flow from that, the finding also poses the threat
of reputational harm that is different and additional to any burden
posed by other penalties.” BE&K Constr. Co. v. NLRB, 122 S. Ct.
2390, 2398 (2002).
Moreover, “[t]he Texas courts have held that the crime of
homosexual conduct . . . is a crime involving moral turpitude.”
In re Longstaff, 538 F. Supp. 589, 592 (N.D. Tex. 1982) (citation
omitted), aff’d, 716 F.2d 1439 (5th Cir. 1983). Petitioners’
convictions therefore disqualify or restrict Lawrence and Garner
from practicing dozens of professions in Texas, from physician
to athletic trainer to bus driver. 19 In four states, Lawrence and
Garner are considered sex offenders and would have to register
as such with law enforcement.20 And while Section 21.06 does
not authorize imprisonment as a penalty, prison terms can be
imposed in the 12 other States with sodomy prohibitions, in some
cases up to ten years.21
Even where there is no direct enforcement, Section 21.06
19
See, e.g, Tex. Occ. Code § 164.051(a)(2)(B) (physician); id.
§ 301.409(a)(1)(B) (registered nurse); id. § 401.453(a) (speech-language
pathologist); id. § 451.251(a)(1) (athletic trainer); id. § 1053.252(2) (interior
designer); id. § 2001.102 (bingo licensee); Tex. Transp. Code § 512.022(f)
(school bus driver); Tex. Alco. Bev. Code § 11.46(a)(3) (liquor sales).
20
See Idaho Code § 18-8304; La. Rev. Stat. Ann. § 15:541; Miss. Code
Ann. § 45-33-23; S.C. Code Ann. § 23-3-430.
21
See Ala. Code §§ 13A-6-60(2), 13A-5-7(a)(1) (one year); Fla. Stat.
Ann. §§ 800.02, 775.082(4)(b) (60 days); Idaho Code § 18-6605 (five years);
Kan. Stat. Ann. §§ 21-3505, 21-4502(1)(b) (six months); La. Rev. Stat. Ann.
14:89 (five years); Miss. Code Ann. 97-29-59 (ten years); Mo. Rev. Stat.
§§ 566.090, 558.011 (one year); N.C. Gen. Stat. §§ 14-177, 15A-1340.17 (one
year); Okla. Stat. tit. 21, § 886, amended by 2002 Okla. Sess. Law Serv. ch. 460,
§ 8 (West) (ten years); S.C. Code Ann. § 16-15-120 (five years); Utah Code
Ann. §§ 76-5-403(1), 76-3-204(2) (6 months); Va. Code Ann. §§ 18.2-361, 18.210 (five years).
28
intrudes into the privacy of innumerable homes by regulating
the actual physical details of how consenting adults must conduct
their most intimate relationships. As discussed above, see supra
Point I.A., such an invasion starkly offends the fundamental
freedom of adulthood that is at stake. The Homosexual Conduct
Law’s absolute criminal ban is a harsh burden for all covered
by the law.
The balance in this case thus heavily favors individual liberty.
Texas’s justification – amounting to a mere declaration that the
State disapproves of same-sex couples engaging in the conduct
at issue, in the absence of any asserted public need or harm –
cannot be sufficient. See Casey, 505 U.S. at 850-53; Roe, 410 U.S.
at 162; Poe, 367 U.S. at 548 (Harlan, J., dissenting). If it were, the
power of the government to restrict liberty interests would be
unlimited. The very meaning of fundamental liberty interests
is that this kind of decision – affecting the most personal and
central aspects of one’s life – should be made by the individual,
not the State.
While Texas may advocate a majority view about sexual
morality, it may not excessively burden the liberty interests of
those citizens who profoundly disagree. See, e.g., Maher v. Roe,
432 U.S. 464, 475-76 (1977) (“There is a basic difference between
direct state interference with a protected activity and state
encouragement of an alternative activity . . . . Constitutional
concerns are greatest when the State attempts to impose its will
by force of law”). Texas may not impose its particular view
through the intrusive force of a criminal law regulating the very
forms of physical intimacy that consenting adults may choose
in the privacy of their own homes. By claiming the power to
impose its own moral code where constitutional guarantees of
personal liberty are at stake, Texas is reversing the proper
relationship between the government and a free people.
The Court long ago made clear that the Constitution “excludes
any general power of the state to standardize its children” because
“[t]he child is not the mere creature of the state.” Pierce, 268 U.S.
at 535; accord Troxel, 530 U.S. at 68 (plurality opinion). Yet, what
29
Texas claims here is the power to standardize its adult citizens
and render them mere creatures of the State by compelling
conformity in the most private and intimate personal matters.
By vote of the majority, one particular view of how to conduct
one’s most private relationships is imposed on all. But
“fundamental rights may not be submitted to vote; they depend
on the outcome of no election.” Barnette, 319 U.S. at 638. The
precepts advocated by Texas, aimed at “submerg[ing] the
individual,” are “wholly different from those upon which our
institutions rest.” Meyer, 262 U.S. at 402. Section 21.06
unjustifiably infringes the personal liberty and privacy guaranteed
by the Constitution and should be struck down.
C. Bowers Should Not Block Recognition and Enforcement
of These Fundamental Interests.
Vindication of Petitioners’ constitutionally protected liberty
interests should not be blocked by continued adherence to Bowers.
In light of the fundamental interests at stake and the consistent
and profound legal, political, and social developments since
Bowers, principles of stare decisis do not bar the Court’s
reconsideration of that decision.
Stare decisis is a “principle of policy,” not an “inexorable
command.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63 (1996)
(quotation marks omitted); see also, e.g., Agostini v. Felton, 521
U.S. 203, 235-36 (1997) (same). That is “particularly true in
constitutional cases, because in such cases correction through
legislative action is practically impossible.” Seminole Tribe, 517
U.S. at 63 (quotation marks omitted). For these reasons, the Court
has not hesitated to overrule earlier constitutional decisions that
have been recognized as erroneous. See, e.g., Payne v .Tennessee,
501 U.S. 808, 828 & n.1 (1991) (surveying cases); Lewis F. Powell,
Jr., Stare Decisis and Judicial Restraint, 1991 J. S. Ct. Hist. 13 (same).
Where, as here, a prior decision has erroneously denied a
fundamental constitutional right of citizens over and against
the State and no countervailing rights of other individuals are
at stake, there is a compelling need to correct the error. See, e.g.,
30
Barnette, 319 U.S. at 630-42 (overruling Minersville Sch. Dist. v.
Gobitis, 310 U.S. 586 (1940)); see also, e.g., Brown v. Board of Educ.,
347 U.S. 483, 494-95 (1954) (overruling Plessy v. Ferguson, 163 U.S.
537 (1896)). That is especially true here, because laws of the kind
upheld by Bowers – whether facially evenhanded or discriminatory
– are used to legitimize widespread discrimination against gay
and lesbian Americans. See infra Point II.B.1. Indeed, the holding
of Bowers itself has been cited as justifying state-sponsored
discrimination. See, e.g., Padula v. Webster, 822 F.2d 97, 103 (D.C.
Cir. 1987) (“If the Court [in Bowers] was unwilling to object to
state laws that criminalize the behavior that defines the class,
it is hardly open . . . to conclude that state sponsored
discrimination against the class is invidious”); Romer, 517 U.S.
at 641 (Scalia, J., dissenting) (same).
In this respect Bowers is fundamentally different from decisions
like Roe or Miranda v. Arizona, 384 U.S. 436 (1966), which
recognized individual rights that then became incorporated into
the very fabric of our society. See Casey, 505 U.S. at 854; Dickerson
v. United States, 530 U.S. 428, 443 (2000). Indeed, there are no
considerations like those identified in Casey or other stare decisis
cases that might favor continued adherence to Bowers.
Unlike the right recognized in Roe and its progeny, there is
no pattern of individuals who “have relied reasonably on the
[Bowers] rule’s continued application” to their advantage, Casey,
505 U.S. at 855; see also, e.g., Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 233 (1995). Individuals have only been harmed by
the Bowers decision. Nor has Bowers become “part of our national
culture,” Dickerson, 530 U.S. at 443. Just the opposite is true.
Developments in the law and in the facts – or in society’s
perception of the facts, see Casey, 505 U.S. at 863 – have steadily
eroded any support for Bowers. Since Bowers, the Nation has
continued to reject the extreme intrusion into the realm of personal
privacy approved in that case, so that now three-fourths of the
States have repealed or invalidated such laws – including the
very law upheld by Bowers. See supra Point I.A.3.
Also since Bowers, the Nation has steadily moved toward
31
rejecting second-class-citizen status for gay and lesbian Americans.
In Romer, this Court held that venerable equal protection principles
protect gay and lesbian Americans against invidious
discrimination. Thirteen States and the District of Columbia,
plus countless municipalities – including at least four in Texas
– have now added sexual orientation to laws barring
discrimination in housing, employment, public accommodations,
and other areas.22 More than half the States now have enhanced
penalties for hate crimes motivated by the victim’s sexual
orientation.23 And the reality of gay and lesbian couples and
families with children has been increasingly recognized by the
law and by society at large. See supra at 17-19. This is thus a case
in which the Court must respond to basic facts and constitutional
principles that the country has “come to understand already,
but which the Court of an earlier day . . . had not been able to
perceive.” Casey, 505 U.S. at 863; see also, e.g., Vasquez v. Hillery,
474 U.S. 254, 266 (1986) (stare decisis must give way when necessary
“to bring [the Court’s] opinions into agreement with experience
and with facts newly ascertained”) (quotation marks omitted).
Bowers is an isolated decision that, like the cases overturned
in Payne, was “decided by the narrowest of margins, over spirited
dissents challenging [its] basic underpinnings.” Payne, 501 U.S.
at 828-29. Far from being “an essential feature of our legal
tradition,” Mitchell v. United States, 526 U.S. 314, 330 (1999), Bowers
stands today as “a doctrinal anachronism discounted by society,”
Casey, 505 U.S. at 855. Many of the bedrock principles of
22
1999 Cal. Legis. Serv. ch. 592 (West); 1991 Conn. Legis. Serv. 91-58
(West); Human Rights Act of 1977, D.C. Laws 2-38; 1991 Haw. Sess. Laws
Act 2; 2001 Md. Laws ch. 340; 1989 Mass. Legis. Serv. ch. 516 (West); 1993
Minn. Sess. Law Serv. ch. 22 (West); 1999 Nev. Stat. ch. 410; 1997 N.H. Laws
ch. 108; 1991 N.J. Sess. Law Serv. ch. 519 (West); 2002 N.Y. Laws ch. 2; 1995
R.I. Pub. Laws ch. 95-32; 1992 Vt. Acts & Resolves 135; 1981 Wis. Laws ch.
112; Austin, Tex., City Code, vol. I, tit. VII; Dallas, Tex., Mun. Ordinance
24927 (May 8, 2002); Fort Worth, Tex., Code of Ordinances ch. 17, art. III;
Houston, Tex., City Code ch. 2, tit. XIV.
23
See Nat’l Gay and Lesbian Task Force, Hate Crime Laws in the U.S.,
available at http://www.ngltf.org/downloads/hatecrimeslawsmap.pdf
(accessed Jan. 14, 2003).
32
contemporary constitutional law were announced in cases
overruling contrary precedent – whether after only a few
intervening years, or following decades of legal, political, and
social development. See, e.g., Barnette, 319 U.S. at 630; Brown,
347 U.S. at 494-95; Gitlow v. New York, 268 U.S. 652, 666 (1925);
Malloy v. Hogan, 378 U.S. 1, 4-6 (1964). As in those cases, the Court
“cannot turn the clock back.” Brown, 347 U.S. at 492-93. It
accordingly should overturn Bowers and protect the fundamental
liberty interests of Petitioners.
II. Section 21.06 Discriminates Without Any Legitimate and
Rational Basis, Contrary to the Guarantee of Equal
Protection.
Texas’s Homosexual Conduct Law violates the Fourteenth
Amendment for the additional reason that it “singl[es] out a
certain class of citizens for disfavored legal status,” Romer, 517
U.S. at 633, in violation of the most basic requirements of the
Equal Protection Clause. The statute directly conflicts with the
Constitution’s “commitment to the law’s neutrality.” Id. at 623.
It fails equal protection scrutiny even under the deferential
“rational basis” standard.24 And this discriminatory classification
is “embodied in a criminal statute . . . where the power of the
State weighs most heavily,” a context in which the Court “must
be especially sensitive to the policies of the Equal Protection
Clause.” McLaughlin v. Florida, 379 U.S. 184, 192 (1964).
By its terms, Section 21.06 treats the same consensual sexual
behavior differently depending on who the participants are. The
24
Heightened equal protection scrutiny is appropriate for laws like
Section 21.06 that use a sexual-orientation-based classification. It is also
appropriate where, as here, the law employs a gender-based classification
to discriminate against gay people. The classification in this law, however,
does not even have a legitimate and rational basis.
Of course, if the Court agrees with Petitioners that the challenged
law invades a fundamental liberty, analysis of the law’s discriminatory
classification would be as stringent as the analysis outlined in Point I. See,
e.g., Dunn v. Blumstein, 405 U.S. 330, 337 (1972). In this Point II, Petitioners
urge a distinct constitutional violation that does not depend on the Court
finding that a fundamental liberty is at stake.
33
behaviors labeled “deviate sexual intercourse” by Texas are widely
practiced by heterosexual as well as gay adults.25 But the statute
makes this common conduct illegal only for same-sex couples
and not for different-sex ones. Tex. Pen. Code § 21.06. And the
State offers only a tautological, illegitimate, and irrational
purported justification for such discrimination.
The group targeted and harmed by the Homosexual Conduct
Law is, of course, gay people. Gay people have a same-sex sexual
orientation and heterosexuals have a different-sex one. See, e.g.,
John C. Gonsiorek & James D. Weinrich, The Definition and Scope
of Sexual Orientation, in Homosexuality: Research Implications for
Public Policy 1 (J. Gonsiorek & J. Weinrich eds., 1991) (“sexual
orientation is erotic and/or affectional disposition to the same
and/or opposite sex”); cf. Romer, 517 U.S. at 624, 626-31 (in civil
rights laws, “sexual orientation” is defined by an individual’s
“choice of sexual partners” or “heterosexuality, homosexuality
or bisexuality”). The Homosexual Conduct Law overtly uses
that defining characteristic to set up its disparate treatment.
Section 21.06 “prohibit[s] lesbians and gay men from engaging
in the same conduct in which heterosexuals may legally engage.”
Morales, 826 S.W.2d at 204; see also Wasson, 842 S.W.2d at 502
(where same-sex but not different-sex sodomy is criminalized,
“[s]exual preference, and not the act committed, determines
criminality, and is being punished”).
A straightforward application of the rational basis test shows
that this law and Texas’s attempted justification for it cannot
satisfy the requirement that every classification must at least “bear
a rational relationship to an independent and legitimate legislative
end.” Romer, 517 U.S. at 633. When broader realities and history
are considered, as this Court appropriately does in any equal
protection case, the constitutional violation is only magnified.
25
See, e.g., Edward O. Laumann et al., The Social Organization of
Sexuality 98-99 (1994) (comprehensive study by University of Chicago
researchers of sexual practices of American adults, finding that
approximately 79% of all men and 73% of all women had engaged in oral
sex, and 26% of all men and 20% of all women had engaged in anal sex).
34
The Homosexual Conduct Law and its badge of criminality
function to make gay people unequal in myriad spheres of
everyday life and continue an ignominious history of
discrimination based on sexual orientation. Ultimately, the equal
protection and liberty concerns in this case reinforce one another,
and further underscore that this unequal law and its broad harms
are intolerable in this country.
A. Section 21.06’s Classification Is Not Rationally Related
to Any Legitimate Purpose and Serves Only the
Illegitimate Purpose of Disadvantaging One Group.
“[C]onventional and venerable” principles require that
legislative discrimination must, at a minimum, “bear a rational
relationship to an independent and legitimate legislative end.”
Romer, 517 U.S. at 633, 635; see also, e.g., Cleburne, 473 U.S. at 446;
Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648,
668 (1981). This test is deferential, but meaningful.
[E]ven in the ordinary equal protection case . . . , [the
Court] insist[s] on knowing the relation between the
classification adopted and the object to be attained. The
search for the link between classification and objective
gives substance to the Equal Protection Clause; it provides
guidance and discipline for the legislature, which is
entitled to know what sort of laws it can pass; and it marks
the outer limits of [the judiciary’s] own authority.
Romer, 517 U.S. at 632.
Under the Equal Protection Clause, the classification – the
different treatment of different people – is what must be justified.
See Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
366-67 (2001) (rational basis review searches for “distinguishing
characteristics” between the two groups that are “relevant to
interests the State has the authority to implement”) (quotation
marks omitted); Rinaldi v. Yeager, 384 U.S. 305, 308 -09 (1966) (equal
protection “imposes a requirement of some rationality in the
nature of the class singled out”); McLaughlin, 379 U.S. at 191
(“courts must reach and determine the question whether the
35
classifications drawn in a statute are reasonable in light of its
purpose – . . . whether there is an arbitrary or invidious
discrimination between those classes covered . . . and those
excluded”). The classification must be rationally connected to
an independent and permissible government objective to “ensure
that classifications are not drawn for the purpose of
disadvantaging the group burdened by the law.” Romer, 517
U.S. at 633.
Section 21.06 fails that essential test. As the Supreme Court
of Kentucky observed in striking down that State’s discriminatory
consensual sodomy law on state equal protection grounds:
In the final analysis we can attribute no legislative purpose
to this statute except to single out homosexuals for
different treatment for indulging their sexual preference
by engaging in the same activity heterosexuals are now
at liberty to perform . . . . The question is whether a society
that no longer criminalizes adultery, fornication, or deviate
sexual intercourse between heterosexuals, has a rational
basis to single out homosexual acts for different treatment.
Wasson, 842 S.W.2d at 501. That court found no “rational basis
for different treatment,” and emphasized that “[w]e need not
sympathize, agree with, or even understand the sexual preference
of homosexuals in order to recognize their right to equal treatment
before the bar of criminal justice.” Id.; accord Jegley, 80 S.W.3d
at 353 (“[w]e echo Kentucky in concluding that ‘we can attribute
no legislative purpose to this statute except to single out
homosexuals’”). That conclusion applies with equal force to the
identical classification employed by Texas’s law.
When Texas enacted Section 21.06 in the early 1970s, there
was no “practical necessity” to draw a classification among its
residents with regard to the subject matter of consensual, adult
oral and anal sex. Cf. Romer, 517 U.S. at 631. For decades, the
State had included an evenhanded prohibition on those acts within
its criminal code. When the legislature determined that its old
law was unduly intrusive, it had the obvious choice of repealing
36
it for all its citizens – as three-fourths of the States have done.
See supra at 23 & note 17. Instead, it decided to single out same-sex
couples for intrusive regulation and condemnation, and to free
all heterosexual couples to make their own choices about particular
forms of intimacy.
Throughout this litigation, the only justification that Texas
has offered for this discriminatory classification is the moral
judgment of the majority of its electorate. The State asserts that
its “electorate evidently continues to believe” that the
discriminatory line drawn by the Homosexual Conduct Law is
desirable because it expresses the majority’s moral views. Pet.
Opp. 18.
The Homosexual Conduct Law’s classification fails rational
basis analysis, for several reasons. First, the State’s position
amounts to no “independent . . . legislative end” at all. Cf. Romer,
517 U.S. at 633. This “justification” merely restates that Texas
believes in and wants to have this criminal law. The Equal
Protection Clause requires that the State’s classification serve
a distinct legislative end – an objective or purpose – independent
of the classification itself. There must be a “link between
classification and objective,” id. at 632, or “some relation between
the classification and the purpose it serve[s],” id. at 633. The test
would be meaningless – a mere rubberstamp for discrimination
– unless the purpose is independent of the classification. But
the “justification” offered by Texas is circular and not an
independent objective served. In the words of the dissenters
below, “[t]he contention that the same conduct is moral for some
but not for others merely repeats, rather than legitimizes, the
Legislature’s unconstitutional edict.” Pet. App. 44a.
The State’s approach gives carte blanche to presumed majority
sentiment, and leaves those targeted by a discriminatory law
without recourse. If majority moral or value judgments were
enough to answer an equal protection challenge, the amendment
struck down in Romer would have survived, because the votes
of a majority of Coloradans clearly signaled that including gay
people within civil rights protections was antithetical to their
37
values. Instead, this Court recognized that Amendment 2 – like
Section 21.06 here – was a “classification of persons undertaken
for its own sake, something the Equal Protection Clause does
not permit.” 517 U.S. at 635. Government “may not avoid the
strictures of that Clause by deferring to the wishes or objections
. . . of the body politic.” Cleburne, 473 U.S. at 448.
Second, even if Texas’s objective could somehow be
characterized as independent of the classification, mere negative
views about the disfavored group – “moral” or otherwise – are
not a legitimate basis for legal discrimination. Cleburne, 473 U.S.
at 448 (“mere negative attitudes . . . unsubstantiated by factors
which are properly cognizable [by government] are not
permissible bases” for discriminatory legal rules). This Court
has many times repeated the core principle of rejecting bias,
however characterized, in law: Legal distinctions may not give
effect to the majority’s desire to condemn an unpopular group,
see Moreno, 413 U.S. at 534, the negative reactions of neighbors,
see Cleburne, 473 U.S. at 448, the fears of people who are different,
see id., a reaction of discomfort toward a minority, see O’Connor
v. Donaldson, 422 U.S. 563, 575 (1975); Cleburne, 473 U.S. at 448-49,
private prejudice, Palmore v. Sidoti, 466 U.S. 429, 433 (1984), or
any other manifestation of unfounded animosity toward one
group, Romer, 517 U.S. at 633-35. History unquestionably teaches
that the moral views of a given time, just like fears, dislikes, and
blatant prejudices, often reflect prevailing negative attitudes about
different groups of people in society. Cf. Whitney v. California,
274 U.S. 357, 376 (1927) (Brandeis, J., concurring) (“Men feared
witches and burnt women”). Indeed, negative attitudes toward
a group can always be recast in terms of a discriminatory moral
code. Using a moral lens to describe negative attitudes about
a group that are not tied to any distinct, objective and permissible
factors cannot cleanse those bare negative attitudes of their
illegitimacy in government decisionmaking.
Texas’s approach of dictating that same-sex couples are “more
‘immoral and unacceptable,’” Pet. Opp. 18, than heterosexual
couples under the very same circumstances – if they choose any
38
of the behaviors defined as “deviate sexual intercourse” – must
be rejected as impermissible. Neutral, evenhanded laws that truly
restrict all persons in the same way could, if there were no
fundamental interests at stake, be justified by a moral position.
Here, however, Texas impermissibly attempts to impose a
discriminatory moral code.26 The State’s law and its proffered
justification embody a bald preference for those with the most
common sexual orientation and dislike of a smaller group who
are different. Texas simply wants to judge those with a same-sex
sexual orientation more harshly for the same behavior. 27
The Constitution and this Court’s precedents forbid that.
In Palmore, a mother lost custody of her child because her
interracial “‘life-style’” was “‘unacceptable . . . to society.’” 466
U.S. at 431 (quoting investigator’s report). But this Court
emphatically held that such negative views have no place in the
law. Id. at 433 (“Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them effect”).
Likewise, unequal treatment may not be based on archaic and
unfounded negative attitudes toward a group, whether grounded
in morality, religious conviction, or “nature.” In Mississippi
University for Women v. Hogan, 458 U.S. 718 (1982), for example,
the Court stressed the need to set aside archaic ideas about gender,
such as that women are “innately inferior” or that unique “‘moral
and social problems’” would arise if women tended bar or
otherwise enjoyed equal opportunities. Id. at 725 & n.10.
26
See Pet. App. 70a-71a (Anderson, J., dissenting) (“[E]qual protection
doctrine does not prevent the majority from enacting laws based on its
substantive value choices. Equal protection simply requires that the majority
apply its values evenhandedly. . . . The constitutional requirement of
evenhandedness advances the political legitimacy of majority rule by
safeguarding minorities from majoritarian oppression”).
27
This conclusion is reinforced by the fact that Texas’s 1973 enactment
discriminates against gay people whereas traditional morality did not.
“[T]he practice of deviate sexual intercourse violates traditional morality.
But so does the same act between heterosexuals, which activity is
decriminalized. . . . The issue here is . . . whether [sexual activity traditionally
viewed as immoral] can be punished solely on the basis of sexual
preference.” Jegley, 80 S.W.3d at 352 (quotation marks omitted).
39
Similarly, negative attitudes toward those with a particular
personal characteristic – even where advanced with the toneddown patina of morality – are also not a legitimate justification
for discrimination under rational basis scrutiny. In Romer, the
Court refused to endorse the dissent’s position that Amendment
2’s anti-gay classification could be sustained as an attempt “to
preserve traditional sexual mores,” Romer, 517 U.S. at 636 (Scalia,
J., dissenting). In Moreno, faced with a regulation that targeted
the morally disfavored group of “hippies,” the Court emphasized
that “if the constitutional conception of ‘equal protection of the
laws’ means anything, it must at the very least mean that a bare
. . . desire to harm a politically unpopular group cannot constitute
a legitimate governmental interest.” Moreno, 413 U.S. at 534.
Instead, different treatment must be supported by “reference
to [some independent] considerations in the public interest.”
Id. (alteration in original). Whether termed a moral judgment,
fear, discomfort, or bias, “mere negative attitudes” about one
subset of the diverse American population cannot justify
distinctions in legal treatment. See Cleburne, 473 U.S. at 448.
Third, there is no other legitimate justification that can save
this law. The distinction drawn by the Homosexual Conduct
Law does not rationally further any permissible goal of the State.
There are no valid concerns of the government here that correlate
with sexual orientation, which is a deeply rooted personal
characteristic that we all have. Variation among heterosexuals,
homosexuals, and bisexuals has no “relevan[cy] to interests the
State has the authority to implement,” Garrett, 531 U.S. at 366,
or to “factors which are properly cognizable,” Cleburne, 473 U.S.
at 448, in writing the criminal law. Thus, Section 21.06’s linedrawing does not turn on or respond to any differences in
maturity or age, in intent, or in the specifics of the actors’
relationship, other than its same-sex or different-sex nature. It
does not incorporate the use of force, a public location, or a
commercial context in its elements, to address those types of
important concerns. Indeed, Texas has other laws that criminalize
sexual conduct that is non-consensual, or public, or commercial,
40
or with a minor. See supra at 6. Likewise, the law’s discriminatory
regulation of “deviate sexual intercourse” is unrelated to any
interest in reproduction, for oral and anal sex are obviously not
methods of reproduction for any couple.
Where government itself offers a reason that is illegitimate,
as Texas has done here, or other factors indicate that the law rests
on negative attitudes, the Court has carefully assessed any
additional, purportedly rational and legitimate basis for
challenged differential treatment. See Cleburne, 473 U.S. at 449-50
(careful assessment, and ultimate rejection, of other proffered
reasons, where negative attitudes were clearly one basis for legal
discrimination); Moreno, 413 U.S. at 535-38 (same). In such rational
basis cases, the Court has not tried to supply new, “conceivable”
reasons to support the classification. See also Romer, 517 U.S. at
635. It is, after all, only “absent some reason to infer antipathy” that
the “Constitution presumes that . . . even improvident decisions
will eventually be rectified by the democratic process and that
judicial intervention is generally unwarranted.” Vance v. Bradley
440 U.S. 93, 97 (1979) (emphasis added). Here, Texas offers
nothing more than the majority’s negative moral judgment to
support its discrimination, and that should end the matter with
a ruling of unconstitutionality.
This 1970s classification is “divorced from any factual context
from which [the Court] could discern a relationship to legitimate
state interests.” Romer, 517 U.S. at 635. It is solely an effort to
mark a difference in status, to send a message in the criminal
law that one group is condemned by the majority. This
impermissible and irrational double standard must be removed
from Texas’s criminal code.
B. The Broader Realities Reinforce This Law’s Affront
to Core Principles of Equal Protection.
Additional considerations confirm the violation of equal
protection here. First, the Homosexual Conduct Law does not
just discriminate against gay and lesbian Texans in their private
intimate relations, but brands gay persons as second-class citizens
41
and legitimizes discrimination against them in all aspects of life.
Second, the discrimination worked by this law reflects and
reinforces a century-long history of discrimination against gay
Americans. The real-world context and history of discrimination
further expose the law’s illegitimacy. See Romer, 517 U.S. at 623-31
(considering in detail the functioning and historical background
of challenged enactment); Moreno, 413 U.S. at 537 (considering
“practical effect” of classification); Eisenstadt, 405 U.S. at 447-52
(considering social and legal backdrop in finding equal protection
violation under rational basis standard). Where a law
“circumscribe[s] a class of persons characterized by some
unpopular trait or affiliation,” there is a “special likelihood of
bias on the part of the ruling majority.” N.Y. Trans. Auth. v. Beazer,
440 U.S. 568, 593 (1979).
1. The Homosexual Conduct Law Brands Gay Persons As
Second-Class Citizens and Licenses Wide-Ranging
Discrimination Against Them.
On the surface, the Homosexual Conduct Law may appear
to discriminate against gay men and lesbians in only one sphere
of life – albeit a vitally important one, see supra Point I – by
criminalizing the sexual intimacy of same-sex adult couples but
not the very same conduct engaged in by different-sex couples.
In reality, the scope of the discrimination is much broader. Today,
sodomy laws – even facially evenhanded sodomy laws – are
widely understood to brand gay citizens as criminals by virtue
of their sexual orientation, and are thus used to legitimate acrossthe-board discrimination. Texas’s enactment of a facially
discriminatory law formalizes that pejorative classification of
lesbians and gay men as second-class citizens.
Historically, the vast majority of consensual sodomy laws
have not differentiated between same-sex and different-sex
couples, and nine of the 13 sodomy laws still on the books today
retain that traditional characteristic of being facially evenhanded.
See supra at 6 & note 5, 21-22. In recent times, however, even
facially non-discriminatory laws have been understood as
targeting gay men and lesbians rather than heterosexual couples
42
who engage in identical forms of private sexual intimacy covered
by the laws. This contemporary understanding of these laws
was reflected in – and reinforced by – the Court’s reasoning in
Bowers, which read Georgia’s facially neutral law as reflecting
“the presumed belief of a majority of the electorate in Georgia
that homosexual sodomy is immoral and unacceptable.” 478 U.S.
at 196 (emphasis added). See generally Nan D. Hunter, Life After
Hardwick, 27 Harv. C.R.-C.L. L. Rev. 531, 542 (1992).
Thus, in recent decades, the existence of facially
nondiscriminatory sodomy laws – indeed, the mere power of
state legislatures to pass such laws, whether or not that power
is exercised – has been used to justify myriad forms of
discrimination against gay and lesbian Americans as presumptive
criminals. For example, sodomy laws are often invoked to deny
or restrict gay parents’ custody of or visitation with their own
children,28 to deny public employment to gay people,29 and to
block protection of gay citizens under hate-crime legislation.30
28
See, e.g., Ex Parte D.W.W., 717 So. 2d 793, 796 (Ala. 1998) (affirming
imposition of severe visitation restrictions on lesbian mother, reasoning, “the
conduct inherent in lesbianism is illegal in Alabama”); Bottoms v. Bottoms, 457
S.E.2d 102, 108 (Va. 1995) (removing child from lesbian mother and giving
custody to child’s grandmother, concluding, “[c]onduct inherent in
lesbianism is punishable as a Class 6 felony in the Commonwealth, Code
§ 18.2-361; thus, that conduct is another important consideration in
determining custody”); see also Ex parte H.H., 830 So. 2d 21, 35 (Ala. 2002)
(Moore, C.J., specially concurring) (“disfavoring practicing homosexuals in
custody matters promotes the general welfare of the people of our State in
accordance with our law”).
29
See, e.g., Shahar v. Bowers, 114 F.3d 1097, 1105 & n.17 (11th Cir. 1997);
see also Walls v. City of Petersburg, 895 F.2d 188, 193 (4th Cir. 1990) (upholding
public employment application question about homosexual relations
“because the Bowers decision is controlling”).
30
An amendment to include “sexual orientation” in the Utah hate
crime bill was defeated after a representative referred to Utah’s sodomy law,
stating that the “effect of granting special protection under [the hate crime
act] to homosexuals would be contradictory under Utah law.” See Terry S.
Kogan, Legislative Violence Against Lesbians and Gay Men, 1994 Utah L. Rev.
209, 222 (quotation marks omitted). Similarly, a hate crime bill in North
Carolina covering sexual orientation was rejected in 2000 after the House
43
Indeed, the dissent in Romer argued that the Court’s holding in
Bowers alone was sufficient justification for the sweeping
discrimination against gay citizens worked by Colorado
Amendment 2, Romer, 517 U.S. at 640-43 (Scalia, J., dissenting)
– even though Colorado’s former sodomy law had applied to
all and had been repealed years before, see 1971 Colo. Sess. Laws
ch. 121.
Texas has gone further, abandoning any pretense of nondiscriminatory legislation in this area by enacting a law that
facially discriminates against gay and lesbian couples. By
introducing that express classification into the criminal law, Texas
has placed its imprimatur on discrimination based on sexual
orientation. That has had far-reaching implications for gay citizens
in virtually every area of their lives. As the State stipulated in
an earlier challenge to Section 21.06, the law “brands lesbians
and gay men as criminals and thereby legally sanctions
discrimination against them in a variety of ways unrelated to
the criminal law,” including “in the context of employment, family
issues, and housing.” Morales, 826 S.W.2d at 202-03; see also Jegley,
80 S.W.3d at 343 (under same-sex-only sodomy laws, gay people
“suffer the brand of criminal impressed upon them by a[n] . . .
unconstitutional law”).
The Homosexual Conduct Law and similar statutes in other
States have been routinely invoked to limit the custody or
visitation that fit, gay parents would otherwise have with their
own children.31 Likewise, this law is cited as a basis for preventing
heard testimony about the illegality of sodomy. People for the Am. Way
Found., Hostile Climate: Report on Anti-Gay Activity 257 (2000).
31
See, e.g., Jegley, 80 S.W.3d at 343 (observing that Arkansas sodomy
statute had been used in harmful ways “outside the criminal context,”
including in prior case denying lesbian custody of her children); see also Jo
Ann Zuniga, Gay Parents Are Fighting Back Against Blackmail, Court Bias,
Hous. Chron., June 27, 1994, at A11 (reporting that common tactic of
vilifying gay parents in custody battle is “give[n] . . . teeth [by] Section
21.06”); J.P. v. P.W., 772 S.W.2d 786, 792 (Mo. Ct. App. 1989) (restricting gay
father’s visitation rights, in part because a “statute of this state declares that
deviate sexual intercourse with another person of the same sex is illegal.
44
lesbians and gay men from serving as foster parents, simply
because of their presumed “criminal status” and wholly apart
from any inquiry into the best interests of children awaiting a
home. See, e.g., Polly Hughes, Bill Would Ban Gay Texans From
Adopting Children, Hous. Chron., Dec. 11, 1998, at A38 (reporting
on adoption and foster-care policies). Section 21.06 and other
discriminatory consensual sodomy offenses have been used to
interfere with equal employment opportunities for lesbians and
gay men. England, 846 S.W.2d at 958; Childers v. Dallas Police Dep’t,
513 F. Supp. 134, 144, 147-48 (N.D. Tex. 1981) (upholding denial
of employment to gay man), aff’d, 669 F.2d 732 (5th Cir. 1982);
Baker, 553 F. Supp. at 1130, 1147. These laws are also used to block
the adoption of civil rights ordinances that would prohibit sexual
orientation discrimination in employment and other core aspects
of civil society.32 The Homosexual Conduct Law has even been
cited in arguments for imposing the death penalty on a gay
defendant, Burdine v. Johnson, 66 F. Supp. 2d 854, 857 (S.D. Tex.
1999), aff’d, 262 F.3d 336 (5th Cir. 2001) (en banc), cert. denied, 122
S. Ct. 2347 (2002). In these many ways and others, the Homosexual
Conduct Law is functioning as a legal reference point that
endorses gay inequality.
Thus, even in the absence of actual arrest and prosecution,
the Homosexual Conduct Law labels gay men and lesbians as
criminals and legitimates discrimination against them on that
basis.33 Classification of gay Texans as second-class citizens is
§ 566.090.1”). See generally Diana Hassel, The Use of Criminal Sodomy Laws in
Civil Litigation, 79 Tex. L. Rev. 813 (2001).
32
See, e.g., Dianna Hunt, Plan to Ban Anti-Gay Bias in Fort Worth Dies,
Dallas Morning News, Jan. 20, 1999, at 32A (local anti-discrimination
measure in Texas abandoned after several members of town council
expressed desire to wait until status of state’s sodomy law was resolved); see
also Arthur S. Leonard, Legislative Notes, 1998 Lesbian/Gay L. Notes 101, 115
(Kansas sodomy law cited in support of halting Topeka Human Rights
Commission from investigating anti-gay discrimination).
33
In Texas, calling someone a “homosexual” or using epithets that
mean the same is slanderous per se because of the implication that he or she
has violated the Homosexual Conduct Law. Thomas v. Bynum, No. 04-02-
45
indeed the primary function of this law in society, as evidenced
by the rarity of direct criminal enforcement. Texas makes no
pretense of vigorously enforcing this law or of actually preventing
any private, consensual adult sexual behavior. Morales, 826 S.W.2d
at 203 (“The State concedes that it rarely, if ever, enforces § 21.06”).
Only rare couples who are caught through some extremely
unlucky series of events, like Lawrence and Garner in this case,
ever directly suffer criminal prosecution and punishment for
their discreet intimacy. Model Penal Code § 213.2 cmt. 2 (“To the
extent . . . that laws against deviate sexual behavior are enforced
against private conduct between consenting adults, the result
is episodic and capricious selection of an infinitesimal fraction
of offenders for severe punishment”). The branding function
of the Homosexual Conduct Law and the civil harms that follow
from it forcefully underscore that the law violates equal protection.
It “has the peculiar property of imposing a broad and
undifferentiated disability on a single named group,” Romer,
517 U.S. at 632, without rational and legitimate justification.
2. The Homosexual Conduct Law Reflects and Helps Fuel
a Continuing History of Discrimination Against Gay
Americans.
The Homosexual Conduct Law is only one manifestation
of a history of irrational anti-gay discrimination.34 Although our
Nation has no legal tradition making the criminality of private
sexuality turn on whether a couple is homosexual or heterosexual,
see supra at 21-22, the laws of this Nation have reflected and played
a role in virulent anti-gay discrimination over the last century.
In enforcing the Equal Protection Clause today, this history
informs the Court’s assessment of whether a legal classification
00036-CV, 2002 WL 31829509, at *2 (Tex. App. Dec. 18, 2002); Head v. Newton,
596 S.W.2d 209, 210 (Tex. App. 1980).
34
See generally Jonathan N. Katz, Gay American History: Lesbians and
Gay Men in the U.S.A. (rev. ed. 1992); John D’Emilio & Estelle B. Freedman,
Intimate Matters: A History of Sexuality in America (2d ed. 1997); Hidden From
History: Reclaiming the Gay and Lesbian Past (Martin Duberman, Martha
Vicinus & George Chauncey, Jr. eds., 1990); Lesbians, Gay Men and the Law
(William B. Rubenstein ed., 1993).
46
that discriminates against those with a same-sex sexual orientation
rests on irrational bias. See Vance, 440 U.S. at 97 (Court is attuned
to “some reason to infer antipathy”); see also, e.g., Romer, 517 U.S.
at 624-31.
Anti-gay discrimination was long justified by the false view
that gay individuals were “sick.” Until 1973, the year Section
21.06 was passed, homosexuality was incorrectly classified as
a mental disease. See supra note 10; see also Boutilier v. INS, 387
U.S. 118 (1967) (holding that “psychopathic personality” exclusion
in immigration law applied to homosexual persons). Deeming
them to be “sex deviants,” States involuntarily committed gay
men and lesbians to mental institutions under extremely inhumane
conditions. See, e.g., James A. Garland, The Low Road to Violence:
Governmental Discrimination as a Catalyst for Pandemic Hate Crime,
10 L. & Sexuality 1, 75-76 (2001). “Treatments” to “cure”
homosexuality were often sadistically cruel. See, e.g., Jonathan
N. Katz, Gay/Lesbian Almanac 156 (1983) (describing “treatment”
involving “repeated searing with a hot iron or chemical of [the]
‘pervert’ patient’s loins”); Jonathan N. Katz, Gay American History:
Lesbians and Gay Men in the U.S.A. 129-208 (rev. ed. 1992). Even
today, discredited “therapies” to “change” the very sexual
orientation of gay adults continue this destructive pathologizing
of gay citizens.35
The Homosexual Conduct Law is a remnant of a historical
pattern of repressive law enforcement measures that have
reinforced an outcast status for gay citizens. In the past, state
laws authorized the arrest of individuals simply for “appearing”
to be gay or lesbian, and the closure of businesses simply for
serving gay patrons. See, e.g., One Eleven Wines & Liqours, Inc.
v. Division of Alcohol Beverage Control, 235 A.2d 12, 14 (N.J. 1967)
(reviewing and rejecting agency policy of suspending businesses’
licenses simply for “permitting the congregation of apparent
homosexuals”). McCarthy-era and later witch hunts led to the
35
See, e.g., American Psychiatric Ass’n, Position Statement: Psychiatric
T r e a t m en t a n d S e x u a l O ri e n t a t i o n ( 1 9 9 8 ) , a v a i l a b l e a t
http://www.psych.org/archives/980020.pdf.
47
firing from federal and federal-contractor employment of
thousands of persons suspected of being homosexuals. Katz,
Gay American History, at 91-109; Norton v. Macy, 417 F.2d 1161,
1162 (D.C. Cir. 1969).36
Official repression has often been directed at preventing gay
Americans from organizing politically to advocate for and protect
their rights. The earliest gay political organization in America,
formed in Chicago in the mid-1920s, was silenced by police raids,
arrests, and firings from employment. See, e.g, William N.
Eskridge, Jr., Channeling: Identity-Based Social Movements and Public
Law, 150 U. Pa. L. Rev. 419, 438 & n.77 (2001). Similar groups
that emerged after World War II also suffered severe harassment.
See, e.g., id. at 443-48. Educational publications about
homosexuality were censored as “obscene.” See, e.g., One, Inc.
v. Olesen, 241 F.2d 772 (9th Cir. 1957), rev’d, 355 U.S. 371 (1958)
(per curiam).
Since the late 1960s and early 1970s, gay Americans have made
substantial strides toward securing equal rights. See supra at 17-19,
30-31. But there is still substantial inequality and backlash. In
passing a statute last year that protects against sexual-orientation
discrimination, the New York state legislature found that anti-gay
prejudice “has severely limited or actually prevented access to
employment, housing and other basic necessities of life, leading
to deprivation and suffering.” N.Y. Sexual Orientation NonDiscrimination Act, 2002 N.Y. Laws ch. 2. Cruel anti-gay
harassment in schools remains common. See, e.g., Nabozny v.
Podlesny, 92 F.3d 446 (7th Cir. 1996). And violence motivated
by irrational hatred of gay people can result in crimes of
unimaginable brutality, as occurred with the murder of college
student Matthew Shepard. See, e.g., A Vicious Attack on Gay
Student, Beaten, Burned and Left for Dead, N.Y. Newsday, Oct. 10,
36
Private institutions like Harvard University also mounted secret but
systematic efforts to root out gay people. Amit R. Paley, The Secret Court of
1 9 2 0 , H a r v . C r i ms o n , N o v . 2 1 , 2 0 0 2 , a v a i l a b l e a t
http://www.thecrimson.com/article.aspx?ref=255428 (accessed Jan. 14,
2003).
48
1998, at A4. Such killings, together with lesser forms of violence,
intimidation, and discrimination, remain extremely effective in
deterring gay Americans from revealing their sexual orientation,
and thus from working openly to end anti-gay discrimination.
By marking gay men and lesbians as criminals, discriminatory
sodomy laws reinforce and intensify the irrational prejudice that
leads to such violence. See Leslie, Creating Criminals, 35 Harv.
C.R.-C.L. L. Rev. at 124.
The Constitution “neither knows nor tolerates classes among
citizens.” Romer, 517 U.S. at 623 (quotation marks omitted). In
distinguishing laws based on hostility from ordinary legislative
linedrawing, the Court should not ignore the persistent and
destructive American history of anti-gay discrimination. The
Homosexual Conduct Law is the State’s own endorsement of
discrimination against gay men and lesbians.
C. Equal Protection Concerns Are Particularly Strong Here
Because of the Personal Burdens Imposed by This
Criminal Law.
The Constitution’s equal protection and due process
protections are articulated together. U.S. Const. amend. XIV,
§ 1. Those dual safeguards reinforce one another, including in
cases where liberty concerns may not rise to the level of a
fundamental right or may be indirectly implicated. In this case,
regardless of the Court’s ultimate ruling on Point I, the personal
burdens and restrictions on freedom imposed by Section 21.06
strengthen the need to reject its discriminatory classification.
On numerous occasions, the Court has held that where an
extremely important personal interest is at stake, the State may
not grant some citizens the ability to vindicate that interest but
altogether deny other citizens that ability, even if the State could
employ an evenhanded denial to all citizens. For example, there
is no due process right to appellate review of decrees severing
the parent-child bond. M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996).
Where, however, the State grants review of such decrees to its
citizens generally, it may not deny review to the few who cannot
49
pay costs. Id. at 107; see also, e.g., Boddie v. Connecticut, 401 U.S.
371, 374 (1971) (although there is no right to obtain divorce, where
State makes divorce available to most couples, it may not bar
indigent persons from divorce due to inability to pay). That is
so, even though wealth classifications are not inherently suspect,
see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973),
and the imposition of costs on litigants is otherwise rationally
related to a legitimate state interest, M.L.B., 519 U.S. at 123.
Because the imposition of costs in M.L.B. at least indirectly
implicated “state controls or intrusions on family relationships,”
id. at 116, the Court closely examined the unique burden the State
had placed on the poor and rejected it as offensive to the combined
guarantees of equal protection and due process. See id. at 120.
The constitutional challenge in this case is also of an especially
serious order, because it “endeavor[s] to defend against the States’s
destruction of family bonds, and to resist the brand associated
with” criminality that is now imposed only on the deeply personal
and intimate sexual relations of gay adults. Cf. id. at 125. As
in M.L.B., the outcome here should “reflect both equal protection
and due process concerns.” Id. at 120.
Similarly, there is no fundamental right to an education, and
undocumented aliens are not a suspect class, but in light of the
importance of the interest in education in our society, a law
barring undocumented aliens from receiving a state-funded
education will be rigorously scrutinized. Plyler v. Doe, 457 U.S.
202, 216-24 (1982). The nature of the deprivation, though not
a fundamental right, informs and strengthens the equal protection
claim. As the Court reasoned in Plyler, exclusion of one isolated
group from such an important sphere “poses an affront to one
of the goals of the Equal Protection Clause: the abolition of
governmental barriers presenting unreasonable obstacles to
advancement on the basis of individual merit.” Id. at 221-22.
It imposes a “stigma” that “will mark them for the rest of their
lives.” Id. at 223. Here, too, the Court must not ignore the stigma
and the obstacle to equal advancement in society that accompanies
the discriminatory law that Texas seeks to defend in assessing
50
its validity under the Equal Protection Clause. This classification
likewise “involve[s] the State in the creation of permanent class
distinctions” and relegates gay men and lesbians to “second-class
social status.” Cf. id. at 234 (Blackmun, J., concurring).
The Equal Protection Clause is a critical guardian of liberty
as well as equality. It defends against unreasonable exactions
by the State because it “requires the democratic majority to accept
for themselves and their loved ones what they impose on you
and me.” Cruzan, 497 U.S. at 300 (Scalia, J., concurring); accord
Railway Express Agency v. New York, 336 U.S. 106, 112-13 (1949)
(Jackson, J., concurring). The Texas Homosexual Conduct Law
makes a mockery of that principle. Just as the majority may not
decide that the availability of divorce or education is critical for
the majority itself but then deny those benefits to a few, so Texas
may not determine that freedom from state intrusion into the
private sexual intimacy of two consenting adults is an important
aspect of liberty for most of its citizens, but then deny that liberty
to a minority – particularly a minority historically subject to
discrimination. Consensual sexual decisions are too clearly
matters for individual decisionmaking, not for imposition by
the State. The discriminatory criminal law at issue here seriously
diminishes the personal relationships and legal standing of a
distinct class, and under the Fourteenth Amendment cannot stand.
CONCLUSION
For the foregoing reasons, the judgment of the Texas Court
of Appeals upholding Section 21.06 and affirming Petitioners’
criminal convictions thereunder should be reversed.
Respectfully Submitted,
Paul M. Smith
William M. Hohengarten
Daniel Mach
Sharon M. McGowan
JENNER & BLOCK , LLC
601 13th Street, N.W.
Washington, DC 20005
(202) 639-6000
Ruth E. Harlow
Counsel of Record
Patricia M. Logue
Susan L. Sommer
LAMBDA LEGAL DEFENSE
AND EDUCATION FUND , INC .
120 Wall Street, Suite 1500
New York, NY 10005
(212) 809-8585
Mitchell Katine
WIL LIA M S, BIRNBERG &
ANDERSEN , L.L.P.
6671 Southwest Freeway,
Suite 303
Houston, TX 77074
(713) 981-9595
Counsel for Petitioners
Dated: January 16, 2003