Lowe v. Stark County Sheriff
663 F.3d 258
6th Cir.2011Background
- Lowe was charged with sexual battery under Ohio Rev.Code § 2907.03(A)(5) for sexual intercourse with his 22-year-old stepdaughter.
- Lowe challenged the indictment as applying to adults and argued the statute is unconstitutional as applied to him.
- Ohio courts rejected Lowe’s challenges; Lowe pled no contest and was sentenced, become a sex offender.
- Ohio appellate courts and the Ohio Supreme Court upheld the statute as applied, rejecting a Lawrence-based right to consensual adult sex in this context.
- Lowe argued in federal habeas that the Ohio Supreme Court unreasonably applied Lawrence; the district court denied relief, and the Sixth Circuit granted a certificate of appealability.
- The Sixth Circuit ultimately held that the Ohio Supreme Court did not unreasonably apply federal law under AEDPA and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Ohio Supreme Court unreasonably apply Lawrence? | Lowe contends Lawrence recognizes a broad privacy right. | Swanson argues Lawrence does not establish a fundamental right here. | No; Ohio Supreme Court did not unreasonably apply Lawrence. |
| Is there a fundamental right to private consensual sex for adults? | Lawrence creates a broad right to private sexual conduct among consenting adults. | Lawrence does not announce a universal fundamental right; context matters. | No fundamental right established in this context for incest. |
| What standard of review applies to Ohio incest statute post-Lawrence? | A heightened or strict scrutiny standard may apply to protect liberty. | Rational-basis review is appropriate due to the statute’s aim to protect families. | Rational-basis review applied; not unconstitutional under Lawrence. |
| Does Ohio have a legitimate state interest in criminalizing incest that withstands Lawrence? | Lawrence would invalidate such laws if a broad privacy right existed. | Ohio’s interest in protecting families justifies the statute. | Yes; Ohio’s interest supports the statute as applied. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (privacy right in intimate conduct; context-specific analysis)
- Wright v. Van Patten, 552 U.S. 120 (U.S. 2008) (AEDPA standards; unclear precedent cannot show unreasonable application)
- Carey v. Musladin, 549 U.S. 70 (U.S. 2006) (diversity of lower-court interpretations affects 'unreasonable' finding)
- Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (definition of 'unreasonable' application under AEDPA)
- Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) (Lawrence framed as broader privacy right with non-strict scrutiny)
- Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008) (Lawrence not necessarily a broad fundamental-right holding)
- Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) (Lawrence not read as creating a new fundamental right)
- Muth v. Frank, 412 F.3d 808 (7th Cir. 2005) (Lawrence did not clearly establish a fundamental right to incest)
- Lopez v. Seegmiller, Not applicable () (placeholder to avoid introducing non-reporter citation)