Family Research Council

LB03C1 Lawrence & Garner vs Texas: Texas Amicus Brief 03/18/2003 09/11/2003

Amicus Brief: Lawrence & Garner v. Texas


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
BRIEF AMICUS CURIAE OF THE FAMILY
RESEARCH COUNCIL AND FOCUS ON THE
FAMILY IN SUPPORT OF THE RESPONDENT

GERARD V. BRADLEY
NOTRE DAME LAW SCHOOL
124 Law Building
Notre Dame, Indiana 46556
(574) 631-8385
Counsel to Family
Research Council and
Focus on the Family

ROBERT P. GEORGE
Counsel of Record
ROBINSON and MCELWEE
500 Virginia Street, East
Suite 600
Charleston, West Virginia
25326
(304)344-5800
Of Counsel

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE .................... 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT............................................................... 5
I. THE RECORD IN THIS CASE REQUIRES
EITHER THAT THE WRIT BE DISMISSED
AS IMPROVIDENTLY GRANTED, OR THAT
THE STATUTE BE UPHELD ON A FACIAL
CHALLENGE................................................... 5
II. SEXUAL INTIMACIES WITHIN MARRIAGE
ARE CONSTITUTIONALLY PROTECTED;
NON- AND EXTRA-MARITAL SEXUAL ACTS
ARE NOT AND MAY BE DISCOURAGED....... 7
A. Griswold v. Connecticut .............................. 7
B. Poe v. Ullman .............................................. 9
C. Eisenstadt v. Baird...................................... 11
III. MARRIAGE IS THE UNION OF A MAN AND
A WOMAN........................................................ 15
IV. THE TEXAS LAW HERE CHALLENGED IS A
RATIONAL MEANS BY WHICH TO PROTECT
AND PROMOTE MARRIAGE AS THE
UNION OF A MAN AND A WOMAN................ 20
V. STRICT SCRUTINY IS NOT REQUIRED
BECAUSE THE LAW NEITHER DISCRIMINATES
AGAINST A SUSPECT CLASS NOR
BURDENS A FUNDAMENTAL RIGHT ........... 26
CONCLUSION............................................................ 30

TABLE OF AUTHORITIES

Cases:
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) .......................... 16
Baker v. State, 744 A. 2d 864 (1999).................................. 15
Davis v. Beason, 133 U.S. 333 (1890) ................................ 15
Eisenstadt v. Baird, 405 U.S. 438 (1972) ...................passim
Griswold v. Connecticut, 381 U.S. 479 (1965)............passim
Maynard v. Hill, 125 U.S. 190 (1888)................................ 22
Meyer v. Nebraska, 262 U.S. 390 (1923)............................ 22
Murphy v. Ramsey, 114 U.S. 15 (1885).............................. 15
Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...... 8, 28
Poe v. Ullman, 367 U.S. 497 (1961)................... 9, 10, 26, 27
Reynolds v. United States, 98 U.S. 145 (1878).................. 15
Roe v. Wade, 410 U.S. 153 (1973) ...................................... 12
Skinner v. Oklahoma, 316 U.S. 535 (1942) ....................... 22
U.S. v. Salerno, 481 U.S. 739 (1987) ................................... 6
Washington v. Glucksberg, 521 U.S. 702 (1997) ......... 29, 30
Zablocki v. Redhail, 434 U.S. 374 (1978) .......................... 22

MISCELLANEOUS:
1 U.S.C. ' 7 (2000).............................................................. 15
Tex. Pen. Code Ann. ' 21.06................................................. 5
Tex. Pen. Code ' 21.07(a)(2)............................................... 25

INTEREST OF THE AMICUS CURIAE[1]

Family Research Council [hereinafter "FRC"] is a non-profit, research and educational organization dedicated to articulating and advancing a family-centered philosophy of public life. In addition to providing policy research and analysis for the legislative, executive, and judicial branches of the federal government, FRC seeks to inform the news media, the academic community, business leaders, and the general public about family issues that affect the nation.

FRC's legal and public policy experts are continually sought out by federal and state legislators for assistance and advice. FRC has participated in numerous amicus curiae briefs in the United States Supreme Court, lower federal courts, and state courts.

FRC represents thousands of constituents in its efforts to protect the institutions of marriage and family in federal and state law. Toward that end, FRC has worked to strengthen the legal definition of marriage as being a union of one man and one woman, as it always has been in the United States. FRC has conducted extensive research and produced numerous publications regarding the traditions of legal, cultural, moral, and religious support for marriage, as well as regarding the tangible benefits of traditional marriage for individuals and for society.

Focus on the Family [hereinafter "FOF"] is a non-profit communications and educational organization dedicated to the preservation of marriage, parenting and the nurturing home. FOF produced a number of national and international radio broadcasts on family and cultural issues, publishes a number of magazines for family members of various ages and stages and a wider range of books as well as a website: family.org.

Millions of families in America and abroad rely on FOF for help in understanding the dynamics of their own family as well as what is happening with the family culturally and how they help strengthen both.

SUMMARY OF ARGUMENT

This argument for affirming the judgment below contains two main premises. The premises are supported by abundant authority in this Court, by the positive law (constitutions, statutes, judicial decisions) of the States, and by the convictions and habits of the American people. These premises are, first, the sexual intimacies of married couples are constitutionally protected; non- and extra-marital sexual acts are not.[2] Second, marriage is a relation between a man and a woman.

In addition to the main premises some other premises are implied or are needed to hold up the judgment against the argument that discrimination between acts of same-sex and opposite-sex couples is impermissible. These other premises are mostly uncontroversial facts, which reasonable legislators could surely accept as true. They concern the number and range of sexually active male-female relationships - within and outside marriage - in Texas, and the hazards of investigating and prosecuting those sexual acts. Another premise is this: States may discourage the "evils" - as this Court said in Eisenstadt - of sexual acts outside of marriage by means up to and including criminal prohibition.

The argument concludes that Texas may constitutionally choose to protect marital intimacy by prohibiting same-sex "deviate"[3] acts, while tolerating similar behavior by unmarried opposite-sex persons. The critical difference upon which the legal distinction rests is not the raw physical behavior but the relationships: same-sex deviate acts can never occur within marriage, during an engagement to marry, during a courtship prior to engagement, or within any relationship that could ever lead to marriage. Physically similar sexual acts between married persons are constitutionally protected.[4] Physically similar acts between unmarried persons of different sexes occur within relationships which Texas may wish to encourage, either as valuable in themselves, or because they could mature into marriages, or both.

Some legally permitted/tolerated acts occur within relationships having a very distant - if any - relation to marriage. But Texas could reasonably conclude that criminal prosecution is too blunt a tool with which to distinguish along the spectrum of opposite-sex relationships, all potentially marital and many verging on or preparing for the strictly marital. Not wishing to intrude upon, damage, and perhaps destroy valued and incipiently marital relationships, Texas could reasonably decide to leave all these opposite-sex relationships undisturbed by the criminal law.

Endeavoring to prudently protect and promote marriage by such reasonable means, Texas legislators are scarcely liable to charges of acting on mere prejudice against a class of persons, unreasoned moral hostility to certain acts, or in servile reliance upon mere popular disapproval of either.

The argument does not mean that a State is forbidden to prohibit all non- and extra-marital sexual acts. The argument does not mean that a State is forbidden to tolerate all non- and extra-marital sexual acts. The argument is consistent with both very restrictive and very permissive legal treatments of sex outside of marriage - and of regimes, including that of Texas, which fall somewhere in between.

To defeat the argument one or both of the main premises would have to, at least implicitly, be denied. Denial of either by this Court would contradict an unbroken line of holdings as old as the Constitution. Denial of either would be presumptuous and, from a social and cultural point of view, bitterly divisive.

1. The parties have consented to the filing of this brief. Counsel for a party did not author this brief in whole or in part. No person or entity, other than the Amicus Curiae, its members and its counsel made a monetary contribution to the preparation and submission of this brief.

2. References in the text throughout to "sexual acts" are, unless otherwise indicated, to the acts of consenting adults in private.

3. "Deviate" indicates those specific sexual acts described in the Texas statute though, unless otherwise indicated in the text, the reference is not limited (as it is in the statute) to acts between persons of the same sex.

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