Lawrence v. State

John Geddes LAWRENCE Garner,

Tyrоn Appellants, Texas, Appellee. The STATE of 14-99-00109-CR, Nos. 14-99-00111-CR. Texas, Appeals (14th Dist.).

Houston March They were each

in homosexual conduct. dollars. a fine of two hundred assessed the consti- appeal, appellants challenge On 21.06 of the Texas tutionality of Section Code, contending offends Penal privacy guarantees equal protection and state and federal con- assured both the For the reasons set forth be- stitutions. low, infringement. we find no constitutional reported “weapons investigating While disturbance,” police entered a residence they appellants engaged where observed It is a Class deviate sexual intercourse.1 of Texas for a misdemeanor the State C inter- person engage “in deviate sexual another individual of the same course with (Vernon § sex.” Tex. Pen.Code Ann. 1994). However, appellants sub- pleas of nolo contende- sequently entered re, of the of- the facts and circumstances Accordingly, record. fense are not trial, and appellants challenge did not at propriety of appeal, do not contest on Katine, Houston, B. Mitchell Susanne leading to their discov- police conduct York, Harlow, New Goldberg, Ruth E. issue the narrow ery and arrest. NY, appellants. Section 21.06 presented here whether Houston, Delmore, III, ap- William facially unconstitutional. pellee.

Equal Protection error, appellants point In their first OPINION federal and contend Section 21.06 violates

HUDSON, Justice. guarantees by dis- equal protection orien- criminating regard both in to sexual Lawrence and Appellants, John Geddes Garner, gender.2 tation and engaging convicted of Tyron were any law State shall make or enforce defined in No "Deviate sexual intercourse” is 1. any part deny any person "any ... within Texas as contact between which shall genitals person and the mouth or anus of one jurisdiction equal protection of the person; penetration ... of another or laws. genitals person another or the anus of XIV, § 1. amend. Const, § 21.01 object.” with men, Tex Pen.Code Ann. they form a social com- All free when 1994). (Vernon man, rights, set pact, equal and no men, separate exclusive is entitled to rely Amend- Appellants upon the Fourteenth emoluments, privileges, public of the United States Constitution ment public service. consideration Constitution, provisions two of the Tеxas I, § art. Const, Tex. I, namely, 3 and 3a: Article sections free purporting to all Proclamation slaves application The universal of law states. English citizens has been a tenet of com found within the confederate Carta, 1865, just general hostilities Magna mon law since least the months after system ended, predicated and our whole of law is Amendment had the Thirteenth principle. on this fundamental Truax It that “neither adopted. declared 812, 332, 124, Corrigan, 257 42 U.S. S.Ct. ... shall slavery involuntary nor servitude (1921). Nevertheless, 254 States, L.Ed. our any exist within the United or originally constitution con federal did not jurisdiction.” place subject to their U.S. express guarantee equal pro tain an of XIII, § of amend. 1. The abolition Const. equal pro tection. anWhile assurance of however, immediately slavery, was not ef implied tection could be from the Due bestowing protection of equal fective Amendment, Process of the Fifth Clause upon persons. law all Several centuries rudimentary guarantee compli slavery deep had instilled a cultural bias cated constitutional distinctions be against people of color. Individual south persons persons tween “free” “held began enacting the so-called ern states I, to service labour.” U.S. Const. arts. designed Black which were to re Codes IV, § § 2 & press very nearly their black citizens and slavery. City resurrect the institution of Although the constitution did not estab- Greene, 100, 132, Memphis v. U.S. legalize slavery, certainly lish or recog- of (1981) 1584, 67 L.Ed.2d 769 S.Ct. nized its existence within the states which (White, J., concurring). response In Amistad, tolerated it. See The 40 U.S. events, Republican Congress these 518, (1841). 551, 518, 15 Pet. 10 L.Ed. 826 passed Rights Act of 1866 in an the Civil recognition slavery This constitutional attempt equal rights to ensure for former undoubtedly orig- facilitated a union of the Assn., Bldgs. Contrs. Inc. slaves. General colonies, postponed inal but it until a later 375, 389, Pennsylvania, day a resolution of the tension between (1982). In S.Ct. 73 L.Ed.2d 835 involuntary concept servitude and the 1868, the Fourteenth Amendment was equal protection of implied by laws adopted Equal and its Protection Clause Reconciling Fifth Amendment.4 the insti- enjoined denying the states from slavery equal tution of with the notion of person equal protection of the laws. protection ultimately proved impossi- to be end, In the ble. constitutional “clarifica- purpose the central of the arms, tion” was obtained the force of prevent Protection Clause “is to the States fives, six hundred thousand and two consti- purposefully discriminating between tutional amendments. on the of race.” Shaw v. individuals Reno, 630, 642, while the outcome of the civil U.S. (1993). doubt, very guar- war remained much in 125 L.Ed.2d 511 While the Presi- Emancipation “equal protection” pro- dent Lincoln issued and “due his antees of Equality under the law denied Due Process Clause of the Fifth Amend- shall not be race, color, sex, abridged or creed, because of "requires every have the ment man shall origin. or national This amendment court, day protection of his and the benefit self-operative. every general ... citizen of the law so that I, § Tex Const. art. 3a. life, liberty, property shall hold his and immu- general protection under the nities subsequently 3. These articles were amended govern society.” U.S. Const. rules which by the Thirteenth and Fourteenth Amend- V. amend. ments. may overlap, spheres pro- cess of law” ther the due United States Texas they protection offer are not coterminous. equal protection guarantees. cess and Truax, 257 U.S. at 42 S.Ct. All of the aforementioned state and fed “ Rather, protection ‘equal guarantees equal eral protection explicit safeguard the laws’ is more tempered practical reali somewhat process prohibited unfairness than ‘due ty that act of governing the mere often Bolling v. Sharpe, law.’” requires groups discrimination between L.Ed. 884 It classes of individuals. Casarez aimed at undue favor individual or State, 468, 493 (Tex.Crim.App. 913 S.W.2d hand, privilege, on class the one and at 1994). simply A state cannot function oppression hostile or the discrimination classifying without its citizens for various Truax, inequality, the other. See 257 purposes treating differently some 332-33, It 42 at 129. U.S. S.Ct. U.I.L., than Sullivan 616 others. See v. intended, however, interfere “to with the (Tex.1981). 170, example, S.W.2d 172 For power prescribe regula of the state ... to may required citizens able-bodied health, morals, promote peace, tions to forces, infirm serve the armed education, while good of the people.” order Casarez, are not. 913 at 493. 27, 31, S.W.2d Connolly, Barbier v. 5 (1884). 357, 28 S.Ct. L.Ed. 923 hypo conflict The between I, Similarly, § 3 of the Article Texas equal protection thetical and the ideal of also guarantees equality Constitution practical necessity governmental classi persons. all

rights Burroughs Lyles, v. judicial a spawned fications has series 570, (1944). 142 Tex. 181 574 S.W.2d determining tests for when classifications any person, designed prevent It was permissible. general are and are not persons, being singled class of out legislation rule is that to be presumed subject discriminating special or hos sustained if classifica valid and will be legislation. tile Id. Because state and rationally by tion the statute is drawn equal protection guarantees federal share City legitimate related interest. to a state aim in scope, a common and are similar Center, Living 473 Cleburne Cleburne have frequently Texas cases followed fed 432, 440, L.Ed.2d U.S. 87 precedent analyzing scope eral when (1985). general way, gives rule I, Hogan § and effect of Article v. Hall however, man, persons a statute when classifies (Tex.App.— 889 S.W.2d denied). race, Id. alienage, origin. writ or national [14th Houston Dist.] are seldom to the These factors so relevant Amendment, Equal Rights The Texas any legitimate achievement of state inter however, no equivalent. has federal See persons according separating est laws I, § art. 3a. When Texas vot Tex. Const. sub “suspect to these classifications” are it in a four adopted ers to one scrutiny. Accordingly, ject strict margin, both the States and Texas United class,” against “suspect laws directed due already provided process constitutions right,” a “fundamental infringe upon which equal protection guarantees. In the suitably only they if will be sustained McLean, Interest 725 S.W.2d compelling inter tailored to serve a (Tex.1987). Thus, unless the amendment Id.; Public v. Dickinson est. Kadrmas futility, was an exercise must have Schools, 450, 457-58, 108 S.Ct. U.S. been intended be more extensive and 2481, 101 provide greater specific protection than ei- L.Ed.2d However, Sexual Orientation facially neutral statute claim may support equal protection Relying on the Fourteenth Amend by discriminatory it is motivated where Constitution, ment of the United States its results application animus and I, Constitution, § Article 3 of the Texas discriminatory Village Arling effect. Amendment, Equal Rights Texas Heights Metropolitan Housing ton Dev. appellants contend that Section 252, 264-65, Corp., 429 unconstitutionally the Texas Penal Code (1977). Appellants con 50 L.Ed.2d In against discriminates homosexuals.5 discriminatory tend this intent is evident words, other improperly pun statute evolution of Section 21.06. For persons ishes on the basis of their sexual history, de most of its Texas deemed orientation. intercourse, i.e., sodomy, viate sexual to be performed by persons of unlawful whether The threshold issue we must decide is the same or different sex.7 how distinguishes per- whether Section 21.06 ever, prohibi Legislature repealed face, sons sexual orientation. On its tion sodomy generally, except when the statute makes no classification on the performed by persons of the same sex. orientation; rather, basis of sexual unlawful, sodomy” “homosexual Because expressly statute is directed at conduct. not, sodomy” appel while “heterosexual is may disproportion- While homosexuals be lants contend the statute a hos evidences ately statute, affected we cannot homosexuals, tility toward shared only assume homosexual conduct is limited heterosexuals. possessing to those a homosexual “orienta- tion.” having predominately Persons may we find this distinction be While may heterosexual inclination sometimes support equal protection sufficient to engage Thus, in homosexual conduct.6 claim, Supreme neither the United States proscription applies, facially Court, statute’s Court, the Texas nor the least, respect without ato defendant’s sex- Appeals Texas Court of Criminal ual orientation. “suspect found sexual orientation to abe homosexual, authority recognizing 5. There predominantly incidentally is some a dis heterosexual; (7) exclusively tinction between homosexual orientation and and homosexual. Davis, Jeffrey Military Policy homosexual conduct. Meinhold v. United S. Toward Ho 1469, Historical, Dept. Defense, Scientific, Legal States 34 F.3d 1477 mosexuals: and (9th Cir.1994); 55, (1991). Cheney, Perspectives, Pruitt v. 963 F.2d 131 Mil. L.Rev. 58 1160, (9th Cir.1991); Kinsey 1164 approximately per see also Watkins v. estimated that 50 699, (9th Army, population exclusively United States 875 F.2d cent of the is hetero Cir.1989) (Norris, J., sexual; concurring) (stating exclusively per cent is homosexual. Rush, "any attempt to criminalize the status of an Id. at 64. See also Sharon Elizabeth Analogies Identity present individual's sexual orientation would Protection and — Orientation, grave problems”). “Passing": constitutional Race and Sexual 65, (1997); J. 83-84 Odea Harv. BlackLetter Neal, Legal na Discourse: R. Limits study sexuality, In his of human Dr. Alfred Learning Rights From the Civil Movement in Kinsey C. classified the "sexual orientation” Quest Gay Rights, Civil and Lesbian subjects point of his on a seven continuum: (1996). (1) heterosexual; (2) N.Y.L. Sch. L.Rev. exclusively predominant- heterosexual, homosexuаl; ly only incidentally heterosexual, 194, ch.112, (3) incidentally Leg., p. but more than 7. See Acts 48th homosexual; (4) 1; 524; (1925) equally § and Ann. P.C. art. Rev. heterosexual ho- Vernon’s mosexual; homosexual, P.C.1911, 364; (5) 507; predominantly art. Rev. P.C. art. heterosexual; Rev.P.C.1879, (6) incidentally but more than art. 342. prohibition Appellants concept class.”8 of homosex- claim the of “morali- sodomy permissible rationally ual if it is ty” simply singling groups “the out [of] legitimate related to a state interest. people popular based on dislike dis- approval.” Contending practice The State contends the statute advances interest, pre- a legitimate namely, Evans, specifically condemned Romer morals. serving public One fundamental argue appellants that classifications based purpose government is “to conserve the longer on sexual orientation can no Reib, society.” Grigsby moral forces of rationally justified by the State’s interest 105 Tex. S.W. protecting morality. (Tex.1913). fact, In Legislature has 1620, 134 L.Ed.2d 855 We ranging outlawed behavior from murder however, find, appellant’s broad inter- prostitution precisely it has supported by pretation of Romer is not immoral. deemed these activities to be opinion. rationale of text or the Court’s concepts Even our civil law rests from a fairness derived moral understand- Romer, the Supreme Court consid- ing wrong. power The State’s constitutionality ered the of Colorado’s to preserve protect morality has been statute, regu- prohibition any universal upholding such diverse stat- ordinance, lation, policy making homo- parents requiring provide utes as medi- claim sexual orientation the basis children,9 cal prohibiting care to their status, quota pro- minority preferences, devices,10forbidding nude sale of obscene status, tected or claim of discrimination. sold,11 dancing liquor where criminaliz- Kennedy, writing majority, for the Justice ing endangerment,12 regulating child first the Fourteenth Amend- observed incest.14 liquor,13 punishing sale of give Congress general ment does not all, Most, if not of our law is “based on prohibit public power to discrimination Hardwick, morality.” v. notions Bowers 627-28, accommodations. Id. at 116 S.Ct. 196, 2841, 186, 92 478 U.S. 106 S.Ct. (1986). Thus, in employ- L.Ed.2d 140 1620. discrimination briefly Appeals scrutiny” assessing when 8.The Ninth Circuit Court of rather than “strict "suspect constitutionality held that homosexuals constitute of Colorado's Second class,” opinion but that was later withdrawn. barring legislation Amеndment favorable to 1329, Army, States Watkins v. United 847 F.2d homosexuals). withdrawn, 699, (9th Cir.1988), 1349 875 F.2d 957, Cir.1989), denied, (9th 425, Nixon, cert. 711 498 v. 563 Pa. 9. Commonwealth 761 384, (1990). 112 No 1151, 111 S.Ct. L.Ed.2d 395 (2000). 1156 A.2d ap ever appeals other federal court considering plied heightened scrutiny when State, 260, 265-66 10. Yorko v. 690 S.W.2d protection of sexu equal claims in the context 1985). (Tex.Crim.App. High Gays al See Tech v. orientation. Defense 563, Office, Clearance 895 F.2d Indus. Sec. Richardson, Club, 11. El Marocco Inc. v. 746 Marsh, Cir.1990); (9th v. Ben-Shalom 1228, (R.I.2000). 1237-38 A.2d 454, (7th Cir.1989); Woodward 881 F.2d States, 1068, (Fed. 871 F.2d v. United Wilson, 550, 267 Kan. 987 P.2d 12. State Webster, 97, Cir.1989); Padula v. 822 F.2d 1060, (all (D.C.Cir.1987) holding that homosex suspect quasi- not constitute a uals do Liquor Pennsylvania Control 13. Altshuler suspect greater entitled to than rational class 1272, Bd., (Pa.Cmwlth.1999). 729 A.2d scrutiny equal protection purposes). basis for 620, Evans, 631- Romer v. See also State, (1996) Smith v. 6 S.W.3d 519-20 14. S.Ct. 134 L.Ed.2d 855 1999). (Tenn.Crim.App. (relying relationship” test on the "rational ment, accommodations, favoring right legislation and other commer- have the to seek historically cial activities has been rectified their interests. statutory

by the enactment of detailed Here, appellants suggest do not Id. at 1620. schemes. unconstitutionally encumbers Section cited, illustration, for munic- several right legislative protection their to seek ipal prohibited codes Colorado that dis- Hence, discriminatory practices. age, military crimination on the basis of provides support appellants’ no Romer status, pregnancy, parenthood, custody of Romer, example, position. does not child, political affiliation, physical minor previous holding disavow the Court’s disability, or mental or sexual orientation. Bowers; Id. at 116 S.Ct. 1620. To the extent it does not elevate homosexuals homosexuals, protected these codes howev- class; suspect suggest to a it does not er, they were rendered invalid Colora- prohibiting statutes homosexual conduct do’s constitutional amendment. Clause; violate the Protection and it amendment, concept

In striking challenge does not down Supreme Court declared that all citizens preservation protection morality right have the to petition legisla- and seek legitimate state interest.15 protection government. tive from their “A Moreover, appellants may while deem declaring general law that in it shall be prejudice, the statute to rath- be based more difficult for one group of citizens insight, power er than moral our to review than for all others to seеk aid from the justification the moral for a act legislative government pro- is itself a denial of equal extremely limited. The constitution has tection of the laws in the most literal legislature, judiciary, vested the not the sense.” Id. at 116 S.Ct. 1620. “A authority with the to make In so law. ... persons State cannot deem a class of doing, people granted legisla- stranger to its laws.” Id. at individual, class, ture the exclusive to determine is- while no success, group guaranteed persons public morality.16 all sues of If a court could fact, scrutiny rationally the State of Colorado did not because it is relat- preservation morality legitimate cite the power protect as one of ed to the State’s legitimate morality. attempting up- public interests in its view of "The Constitu- Rather, presumes improvident hold the tion ... deci- amendment. the state ar- gued (1) eventually by legitimate sions will be rectified that it had a interest in: process judicial protecting democratic and that inter- the freedom of association citizens, generally matter particularly vention is unwarranted no might those who have unwisely may political how we a think personal religious objections to homosex- Bradley, (2) branch has acted.” Vance v. 440 uality, conserving its resources to 93, 97, 939, 942-943, 99 S.Ct. 59 against groups. combat discrimination other (1979). L.Ed.2d 171 This Court does not Id. at 116 S.Ct. 1620. only policies, invalidate bad or foolish un- 16. Where a statute does run afoul of ex- ones; may constitutional we not "sit as a plicit protections, constitutional its moral superlegislature judge the de- wisdom or justification virtually unreviewable sirability legislative policy determina- judiciary. When the rational basis for an tions made in areas that neither affect fun- outlawing Alabama statute certain sexual de- rights proceed along suspect damental nor challenged, vices was the United States Elev- Dukes, lines.” New Orleans v. Appeals enth Circuit Court of wrote: 2513, 2517, 49 L.Ed.2d misguided legislature (1976). However of Ala- 511 reasons, may enacting foregoing bama have been in statute For the we hold the case, challenged challenged in this the statute is not Alabama statute in this case has constitutionally irrational under rational a rational basis. 356 perceived

overturn a statute it between two men was because conduct included conduct, nothing -wrong prohibited early with among capital crimes of the Mas- judiciary would at Morеover, once become Bay Colony.17 sachusetts making authority society rule Texas, jurisdictions, including some sod- —this strictly people According- have forbidden. Prindle, omy did not include oral sex. 21 ly, purposes we must assume for of our 360; Poindexter, at S.W. 118 S.W. analysis Legislature found has Again, it is difficult to know whether this sodomy to homosexual be immoral. deliberately more narrow definition arose simply product legislative or was legislature The State also contends the judicial ignorance innocence. Con- rationally could have that “homosexual concluded and/or ceivably, oral sex “so unusual different, a was my'’ sodo and more reprehensible, perhaps unthinkable as not to have been offense than “heterosexual sodomy.” proposition contemplated stages This is difficult even the earlier Wise, jurispru confirm because 115 American the law.” at 509. S.E. legislatures histori dence courts topic

cally only Regardless discussed the in terms of how these differing fact, vague euphemisms. arose, often agree statutes of sodomy definitions we with sodomy a made criminal offense without that it general the State’s contention has defining ever the conduct. See Common prerogative always legislature’s been Poindexter, Ky. wealth v. egregious to deem some acts more than S.W. example, legislature For others. to make every capi not chosen homicide form, In its broadest common law offense; upon the depending tal circum knowledge in a offense “consists carnal stances, degree some homicides are first against committed the order of nature felonies,18 degree some are second felon man, man or in unnatural with the same ies,19 felonies,20 jail some are state woman; manner with or man or wom Moreover, ‍‌‌​​​‌‌‌‌​‌​​‌​​‌‌​​​​​‌​‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‍it others are lawful.21 is the an, manner, with beast.” Prindle every duty of this Court to construe stat State, Tex.Crim. S.W. it ute in a manner that renders constitu (1893). More of sod restrictive definitions if it possible tional to do so consistent however, omy, commonly recognized. were of its lan instances, interpretation with reasonable In many sodomy for example, guage. Trinity Authority v. River URS copulation was restricted carnal be Consultants, Texas, Inc. 869 S.W.2d human fur beings tween two —sometimes 1993), (Tex.App. aff'd, (perhaps ther restricted males —Dallas (Tex.1994). Accordingly, S.W.2d we “imagine difficult to that such an legislature find the could have concluded offense would ever be committed between woman”). intercourse, per deviant sexual when man and Wise Common sex, 508, wealth, same is an 509 formed members of the 135 Va. 115 S.E. (1923). event, any In different from or more offensive than only homosexual act (Vernon 1994). (11th § Pryor, 229 19.04

Williams v. F.3d Tex. Pen.Code Ann. 19. Cir.2000). (Vernon 1994). § 19.05 Pen.Code Ann. 20. Tex. however, Bestiality, capital was a offense 17. a woman. whether committed a man or 9.42, 9.32, 9.33, §§ & Tex Pen.Code Ann. 21. at Massachusetts, The Laws and Liberties of (Vernon 1994) 9.43 1648). (Cambridge 1994). (Vernon § 19.02 Ann. Tex Pen.Code applies performed by such conduct members The State asserts the statute women, i.e., equally to men and two men opposite of the sex. face the engaged in homosexual conduct (1) Because there is no fundamental Thus, the same sanctions as two women. (2) engage sodomy, homosexu- maintains the statute does not dis- State class,” “suspect als do not constitute Appel- gender. criminate on the basis of (3) prohibition of conduct homosexual by observing that a similar respond lants legitimate advances state interest and expressly rejected in the rationale was thereto, rationally namely, preserv- related Loving of racial discrimination. context morals, ing public appellant’s first conten- 1, 9, Virginia, 388 U.S. 87 S.Ct. tion is overruled. L.Ed.2d 1010 Loving, Virginia attempt- In State Gender uphold miscegenation ed to statute in equal protection challenge the face of an Appellants also contend Section by arguing that the statute did not dis- 21.06 unconstitutionally discriminates on on the of race criminate because Texas, In gender. gender the basis of applied equally to whites and blacks. The recognized “suspect as a Barber v. class.” Virgi- traced origins Dist., Independent Colorado School miscegenation and concluded nia’s statute (Tex.1995). light S.W.2d miscegenation “[penalties arose Amendment, Equal Rights Texas classifi slavery.” Loving, as an incident to by gender subject cations to “strict at 87 S.Ct. 1817. Because the clear scrutiny” and upheld only will be if the purpose and central of the Fourteenth State can show such classifications have Amendment was “to eliminate all official suitably been compel tailored to serve a state sources of invidious racial discrimina- ling state interest.22 tion,” court determined statute Id., unconstitutional. 87 S.Ct. 1817. Appellants claim Section 21.06 dis criminates on the basis оf sex because Here, employs the State of Texas a com- criminal conduct is determined to some namely, parable argument, Section degree by gender of the actors. For gen- does not discriminate on the basis of example, deviate sexual intercourse is not applies equally der because it to men and per physi unlawful se Texas. While Appellants’ argu- women. contend the cal act is not unlawful as between a man by Loving ment was discredited woman, it is performed unlawful when followed But while should not be here. Appel between two men or two women. purpose Virginia’s miscegenation lants criminality contend un segregate statute was to the races and is, der the respects, gen statute some perpetuate the notion that are infe- blacks der-dependent, whites, Section 21.06 afoul runs rior to no such motive can sinister equal protection guaran state and federal be ascribed to the criminalization of homo- words, tees. sexual conduct. In other we find Amendment, Boren, 190, 197, Craig Under Fourteenth (1976) analyzed (holding according classifications are that un- 50 L.Ed.2d 397 Amendment, "heightened scrutiny” falling intermediate der the Fourteenth classifica- relationship by gender important govern- somewhere between the rational tions must serve scrutiny. University objectives substantially Mississippi test and strict mental must be 718, 724, Hogan, objec- Women related to the achievement of those 3331, (1982); tives). 73 L.Ed.2d 1090 see also jurors;25 employers prohibited history of 21.06 to nothing in the Section any requesting, requiring promote permitting, intended to suggest fe- sexes, Di- preserve any topless;26 the hostility between the children to work male men and unequal treatment as between of Trans- Department rector of the Texas women, or cul- perpetuate societal report to each house of the portation must Thus, regard gender. tural bias with department’s legislature regarding un- Loving women;27 on appellants’ we find reliance hiring recruiting progress persuasive.23 parents, two adopted a child is where male;28 and the other one must be sex, female Section 21.06 alludes to While transported from a patients being statutory con- female every reference ac- jail facility health must be to mental “gender-classifica- stitutes an unlawful attendant;29 cir- companied by example, provides, tion.” Texas law female of 18 age of a under the cumcision to increase that counties are authorized female unlawful;30 etc. these Whether “women-owned busi- participation statutes, vio- many gender-specific other public awards es- nesses” contract Equal Rights Amendment late the Texas goal for tablishing percentage a contract assume, us. must how- is not before We businesses;24 jurors are se- those when ever, these legislature enacted separate facilities questered overnight, I, knowledge full of Article provisions with provided must for male and female criticized, State, severely been Boutwell has 23. See Boutwell v. 719 S.W.2d also here. grounds than those at issue (Tex.Crim.App.1985). There the Court of different State, 139, applicability 848 S.W.2d 140-141 Appeals Criminal considered McGlothlin v. State, Equal Rights (Tex.Crim.App.1992); to Sec- of the Texas Amendment Vernon which, 407, (Tex.Crim.App.1992). Code until its tion 21.10 of the Penal S.W.2d legal provided defenses to repeal (Ver- § Tex. Loc. Gov’t.Code Ann. 381.004 24. specifical- certain heterosexual acts that were 1999). non ly acts. denied in the context of homosexual 24, 1973, R.S., Leg., May ch. Act of 63rd (Ver- art. 35.23 25. Tex.Code Crim. Proc. Ann. 21.10, § When 1973 Tex. Gen. Laws 918. non Supp.2000). charged with sexual abuse of Boutwell was boys, argued was un- several he the statute (Vernon 1994). § 43.251 Rights under the Texas Tex. Pen.Code Ann. constitutional against discriminated Amendment because it (Vernon § 201.403 Boutwell, 719 27. Tex. him on the basis of sex. Trans. Code Ann. 1999). Ap- at 167. The Court of Criminal S.W.2d contention, rejected stating: peals § 192.008 28. Tex Health & Safety Ann. Code clearly, situated But a female defendant (Vernon Supp.2000). is, similarly appellant a female —that engaged inter- had in deviate sexual who (Ver- Crim. Proc. Ann. art. 46.04 29. TexCode years who a child 14 or older course with non Pamph.2000). likewise be was of the same sex—would “promiscuity” defense under denied the § & Safety Ann. Tex Code Health reasoning appellant's pro- § 21.10. (Vernon Supp.2000). fallacy amphiboly: his upon a ceeds mistakenly designated legislature has complaint is that he is discriminated 166.001 of different statutes as Section sense of two against on the basis of "sex” in the rather, May Safety Act of Health and Code. "sex” act is "gender;” but that his 1.02, R.S., § Leg., ch. given 76th protection equal to that entitled to Act) (Advance Directives Gen. Laws 2835 law as stat- Tex. conduct under the heterosexual R.S., 26, 1999, Leg., ch. 21.10(b). May 76th and Act of § ed in (Female State, 169; § Gen. Laws 3213 1999 Tex. Boulding v. see also Prohibited). 1986). Mutilation Genital (Tex.Crim.App. S.W.2d 333 recognize section 3a the Texas Constitution and als and heterosexuals. we While perceived legislature, no conflict. The may adversely the statute affect the con- homosexuals, example, specifically admonished the duct of male and female governor supreme court to ensure the simply specter gen- not raise does representation full and fair of women discrimination. der-based making when appointments their to the determined, already po As we Board of Directors of the Bar of State power may legitimately lice Texas, “regard but to also make no legislation exerted in the form of where race, creed, sex, religion, or national ori- such statute bears a real substantial (Ver- gin.” § Tex. Gov’t Code Ann. health, public safety, relation to the mor 1998). non als; phase general or some other gender Liggett The mere allusion to is not a welfare. Louis K. Co. v. Bal 105, 111-12, invalidity. dridge, talisman of constitutional If a impose statute does not burdens or 73 L.Ed. 204 To the extent bene- upon particular gender, disproportionate impact upon fits it does not statute has a subject conduct, unequal sup individuals to homosexual treatment. the statute ported by legitimate See Coalition Equity Economic v. Wil- state interest. The son, (9th Cir.1997) (hold- 122 F.3d point first of error is overruled. ing Proposition that while California’s gender,

mentions race and logi- PRIVACY it does not error, cally classify persons point ap their second gender); race and Nassau, pellants Hayden see also contend Section 21.06 violates the County (2nd Cir.1999) (entrance right privacy guaranteed by F.3d 48-49 both designed Appellants exam state and federal to diminish cultural constitutions. bias on applicants black claim the intimate nature of the conduct at did not constitute a “racial issue, engaged promote consenting classification” because it did when another). private, beyond scope adults in one race over While Section “sex,” governmental 21.06 includes interference. the word it does not gender elevate one over the other. Nei- Neither the state nor federal constitu- ther it impose gender does burdens on one explicit contain an guarantee pri- tions not shared the other. vacy. general there is no constitu- However, right privacy. tional both Where, here, gender- statutе is express constitutions contain limitations on face, neutral on appellants its bear the governmental power from which “zones of burden of showing the statute has had an privacy” may be inferred. The United upon adverse effect one and that States Court has found five such disproportionate such impact can be traced zones in Bill of Rights: discriminatory to a purpose. Sylvia De Md., velopment Corp. v. County, guarantees Calvert pri- Various create zones of (4th Cir.1995); 48 F.3d vacy. Keevan v. of association contained Smith, (8th Cir.1996). 100 F.3d penumbra in the of the First Amend- Appellants attempt have made no ment. ... The estab Third Amendment lish, contend, they nor do prohibition against quartering even that Section sol- any disparate impact 21.06 has had “in peace be diers house” time of Rather, tween men and appel women. without the consent of the is an- owner complain only lants privacy. statute has other facet of that The Fourth disparate impact had a homosexu- explicitly “right between Amendment affirms the in conduct lawful people per- to be secure their was both reasonable and houses, effects, sons, against under Fourth Amendment. papers, unreasonable searches seizures.” The Amendment also offers no Ninth Fifth in its Amendment Self Incrim- Hardwick, support. v. de In Bowers ination Clause enables the citizen to cre- violating fendants convicted of were government a zone privacy ate of which 190-91, Georgia sodomy statute. 478 U.S. at may not him to surrender to his force Relying upon Griswold pro- detriment. The Ninth Amendment recog and other decisions Connecticut31 in vides: “The enumeration Consti- nizing rights,” “reproductive the defen tution, rights, of certain shall not be dants that the Ninth Amendment argued to deny disparage construed or others privacy regarding creates a zone of con retained people.” activity encompasses sensual sexual Connecticut, 479, 484, Griswold rejected sodomy. homosexual The court 1678, 14 (1965). 85 S.Ct. L.Ed.2d argument position and said “the private kind of sexual conduct between Similarly, Supreme the Texas Court has consenting constitutionally adults is insu “constitutionally protected found zones of proscription lated from unsupport state privacy from several emanating sections Bowers, able.” 478 U.S. at 106 S.Ct. I of the City article Texas Constitution.” v. Henry, Sherman 928 S.W.2d (Tex.1996). include: section con- These Constitution, Likewise, under Texas cerning worship; freedom of section perceive provi- we that there but two concerning speech press; freedom arguably support appel- sions that would 9, concerning section searches and sei- position lants’ 9 and 19 of Article —sections zures; 10, concerning the rights section Again, I. appellants not chal- have prosecutions; sec- accused criminal arrest, lenged leading the search to their life, concerning deprivation tion lib- police we must did not violate conclude law; erty and and due course of property, section 9 of the Texas Constitution. 25, concerning quartering and section sol- neither the Texas Although diers houses. Id. Ap Court nor Texas Court Criminal Appellants specifically identify do not peals considered whether section 19 provision they the constitutional which privacy pro creates a zone of that would privacy protecting claim creates a zone of private behavior, tect homosexual the Su in- consensual sexual behavior preme protect Court has held does not However, we find there are terference. private City heterosexual behavior. In provisions the federal constitu- but two Henry, con Sherman v. court was arguably be construed to tion which could city fronted a case where the had with apply Fourth and Ninth Amend- here —the police promotion denied officer be ments. having cause he an adulterous affair Hen is not with the of another officer. See applica- The Fourth Amendment wife contest, ry do not at 465. court held appellants ble because S.W.2d I, contested, entry right Article by police never section 19 does create conduct they privacy protecting into the residence where were discov- adulterous police assume without state interference. ered. we must 31. 381 U.S. L.Ed.2d spouse liberty” “deeply

[S]exual relations with the of an of ordered rooted “implicit other is not a that is history this Nation’s and tradition.” concept liberty” “deep of ordered America, homosexual conduct was classi- ly history rooted in this Nation’s felony fied as a offense from the time of tradition.” against Prohibitions adul fact, early colonization.32 In there was tery have ancient roots. In the latter unanimity of condemnation that sod- such century half of the 17th in England, was, omy criminal before offense adultery a capital was offense. 4 Wil fifty all states and the District of Colum- *64. Blackstone, liam Commentaeies Hardwick, bia. Bowers v. 478 U.S. at The common brought country law to this Texas, 106 S.Ct. 2841. In homosexual con- by the American colonists included the duct has a criminal been offense well adultery previously crime of defined century.33 over a England. the canon law of United (D.Or.1888); Clapox, States v. 35 F. In to an addition American tradition of A TREatise rton, Francis Wha statutory proscription, homosexual conduct 1719-20, §§ p. Law vol. Criminal historically repudiated by many been (9th 1885). Adultery ed. was still con Moreover, religious faiths.34 Western civi- sidered crime courts and commen long history lization has a of repressing tators the latter half of the 19th cen homosexual behavior state action. Un- tury when the Fourteenth Amendment law, der Roman Justinian states that a lex 578; was Clapox, ratified. See F. fact, imposed Iulia severe criminal supra. penalties adultery is a Wharton, today crime half of the states and the against indulge “those who criminal in- District of Columbia. tercourse with those of their own sex.”35

Blackstone states that the “infamous crime nature, against committed either with man states, Texas, including While other grave or beast” was a among offense recently repealed laws criminaliz- ing adultery, the mere fact that such ancient Goths and that it continued to be conduct no longer illegal in some English so under common law at the time states does not cloak it with constitution- law, writing.36 survey of his In his of the al protection. Montesquieu prompted was to conclude Id. at 470. “crime, against that “the crime nature” is a

Similarly, religion, morality, govern- which and civil we find homosexual conduct is “implicit not a that is concept in the equally ment condemn.”37 1648) (1994) 32. See Laws and (Cambridge Liberties [citing 404 n. 40 Dame L.Rev. (collection general (Leviticus 18:22, 20:13), laws of the Massa- Jewish Torah Bay Colony). chusetts (Romans 1:26-28, Timothy New Testament I 1:9-10, 6:9-10) I Corinthians and the Koran (1879); 33. See Tex. Penal Code art. 342 Tex. (The 7:80) Heights ]. (1895); Penal Code art. 364 Tex. Penal Code (1911); art. 507 and Tex. Penal Code art. 524 Justinian, 35. Flavius The Institutes of Justinian (1925). trans., ed., (J.B. 1913). Moyle 5th Oxford society’s 34. major religions "Our three —Ju- daism, Christianity, Blackstone, historically 36. 4 William Commentaries *215- and Islam— homosexuality have viewed as immoral.” Duncan, Richard Stop F. Who Wants to Rights Legislation, Church: Homosexual Pub- Spirit Montesquieu, 1 Baron de Laws Freedom, Policy, (Dublin 1751). Religious liс 69 Notre Nevertheless, writing appellants the Idaho contend while join Court, should several sister expect Texas of our court observed: “The legalized states who have homosexual law, change make ed to Certainly, national conduct. the modern it, power of construe and determine the many trend has been to decriminalize had power legislature the law and the even forms of consensual sexual conduct law; pass power such a whether widely perceived such when behavior exercised, wisely unwisely can be immoral, e.g., destructive seduc- consequence.” People Griffin, 1 Ida no tion, fornication, adultery, bestiality, etc.38 ho find no Because we concern, however, cannot with cul- Our shielding privacy” constitutional “zone of political trends tural and movements be- from interfer homosexual conduct place in de- cause these can have no our ence, appellants’ point is second of error usurping without the role of the cision overruled. Legislature not Legislature. is While judgment af- The of the trial court is judg- infallible moral and ethical its firmed. ments, constitutionally empow- it alone is to decide evils restrain

ered which will enacting good.39 for the public when laws YATES, FOWLER, Justices EDELMAN, WITTIG, FROST, and hun- aptly Our role defined over a who, join opinion. years ago by Noggle dred Justice E. AMIDEI this MAURICE trend, today Despite fact conduct- this there are still 39. The that unlawful behavior is many types may "private'' private consenting conduct which courts ed in between adults recognized protected prosecution, are not from state complicate but it detection generally Washington not, v. interference. See ipso facto, statutory prohi- does render its Glucksberg, 117 138 S.Ct. upholding sod- bition unconstitutional. (1997) (holding pro 772 statute, L.Ed.2d there is no omy Court of Louisiana suicide); right v. tected to commit Osborne wrote: Ohio, 110 109 party question of whether or a third not (1990) por (possession L.Ed.2d 98 of child act private harmed a consensual is nography protectable privacy interest is a which has of oral anal sex debate home); possessed when inside Bow even nothing ongoing many years been and is ers, (suggest 478 U.S. at 106 S.Ct. 2841 which this court needs to address. ing adultery, even when committed in legislature authority is within constitutional home, constitutionally protected be proscribe Any claim its commission. havior); Miller, United States v. 776 F.2d privаte con- sexual conduct between (11th Cir.1985) (holding that constitutional constitutionally senting insulated adults is right privacy person from does not shield a unsupportable. proscription from state possession personal pornography outside home); Murray City, F.2d Potter v. any that the There has never been doubt Cir.1985) (10th (holding that because pow- legislature, police exercise in the of its inextricably monogamy is the fab woven into er, authority commis- to criminalize the marriage society, plural did ric of our ban on which, regard without sion acts right v. privacy); not violate United States any injury, consid- infliction of other (8th Cir.1982) (holding Fogarty, 692 F.2d 542 ered immoral. right possess mari there is no fundamental legisla- put, Simply commission what the Caron, juana); 600 F.2d Inc. act, if even Cir.1979) ture determines as immoral (8th (holding right privacy does injury against private, is an consensual and activi not extend commercialized sexual States, society ties); itself. Kuromiya F.Supp.2d v. United (La. Smith, (E.D.Pa.1999) 766 So.2d (holding See State there is no funda marijuana). mental to smoke 2000). differently concurring question Justice YATES also filed a difficult law HUDSON, opinion in Justices correct resolu- which what it believes to be the FOWLER, EDELMAN, join. request grounded and FROST tion. Amicus curiae’s on the mistaken notion that different also Justice FOWLER filed ‍‌‌​​​‌‌‌‌​‌​​‌​​‌‌​​​​​‌​‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‍surely politi- result must be on the basis opinion in concurring which Justices crediting the mem- pressure, cal without YATES, EDELMAN, FROST, and integrity bers of this Court with join. MAURICE E. AMIDEI carry out their duties strict accordance dissenting Justice ANDERSON filed with the Texas Code of Judicial Conduct opinion in which Senior Justice Chief legal consideration of the with careful MURPHY Joins.* appeal. amicus presented issues As suggests, judiciary, curiae attacks on the YATES, Justice, concurring. following panel opinion, like the one I agree by, with the result reached may increasing po- have the effect of reasoning by, majority opinion. utilized public’s tential that the confidence in our However, I separately only write to ad- percep- courts will diminish because of a arguments by dress one of the raised ami- tion, erroneous, however we have alleges cus curiae. Amicus curiae decision, a political legal made a one. decision, overruling prior panel’s this But response to such a reckless and improper Court will have succumbed to irresponsible ignore act cannot be that we political pressure and asserts best “[t]he duty our to decide the law we have been way for this Court to rebuke those who politi- interpret. Attempts entrusted to attempted to improper political exercise opinion regardless cize this of their ori- — present in influence case is to affirm gin place decisionmaking no in our —have panel opinion.” well-reasoned process, opposing nor are attacks from pro- The Texas Code of Judicial Conduct creating very interests immune from guiding vides the principals every for in perception public same the mind of the judge in performance of this State may now exist as a result of earlier judicial his or her duties. Tex.Code Jud. inappropriate attempts to influence this Conduct, reprinted in Tex. Gov’t Code decision. (Vernon Ann, app. tit. subtit. G B Supp.2000). & judge Each in hun- “Judges upon Texas is are called to make to “not swayed by partisan year. instructed dreds of decisions each These deci- interests, clamor, public op- or fear of criti- sions are made after consideration of 8(B)(2). contentions, cism.” Id. at Canon ami- posing What both of which are often is, requests interpretations cus curiae to do based on reasonable effect, no different from what those who laws of the United States and the Consti- political against majori- leveled attacks Judges tution.” Second Circuit Crit- Chief achieve, Baer, ty panel opinion hoped Judge icize Attacks on 215 N.Y.L.J. (March 1996). i.e., a a certain desired result.1 other Unless there is words, recusal, disqualification amicus curiae asks this Court to basis for all duty in judges brought shirk its bound order to decide a must decide the matter * [Republican party] Murphy Senior Chief Justice Paul C. and For- "letter circulated local sitting by assign- mer Justice Maurice Amidei attempt in an to influence the out- officials ment. come of the case.” Court, In its brief to this amicus curiae political including describes attacks as a join in Conduct, opinion, Can I the court’s howev- before them. Tex.Code Jud. tional. 3(B)(1); Rogers Bradley, following separately S.W.2d er I write to make the (Tex.1995) J., (Enoch, responding comments. Gammage’s of recu to Justice declaration First, once the made that the decision is sal) Whitaker, (citing Sun Oil Co. v. gen- section 21.06 are not classifications (Tex.1972)). one 823-24 As S.W.2d based, relatively analysis der jurist regard to our commented with gender-based A classifi- straightforward. duty presented difficult decide matters require scrutiny a heightened cation would to us: pro- of section 21.06 because judges being All face the likelihood However, preference class. tected sexual publicly criticized ... for decisions that designated protected class has not been goes territory. It they render. with the Court, Supreme the United States A oath is judge’s to decide cases based Court, or the Texas Court Texas and the on the law facts.... Majority n. Appeals. Op. of Criminal See Stewart, Contemporary E. Chal Carl deciding supra. Consequently, Loy. lenges Independence, to Judicial sound, constitutionally whether 21.06 is we no simply There is L.Rev. relationship be- only look for rational place suggesting that the members reasons section and the State’s tween politi pandering this Court are to certain enacting it.1 a means to groups deciding cal a case as argues directly The State that 21.06 politically end.2 And achieve desired legislature’s right legis- to the related al only unnecessarily adds to the do so morality. late The United States ready politically charged climate created that has held it is within a State’s purports to people amicus curiae power legitimate police legislate on condemn. Hardwick, morality. grounds of Bowers Today upon we have called to de- been 2841, 186, 196, 92 478 U.S. 106 S.Ct. cide whether section 21.06 of the Texas (1986); Parker, Berman v. L.Ed.2d lacks a rational basis or other- Penal Code 26, 32, 98, 99 L.Ed. 348 U.S. wise violates constitutional (1954). Thus, if only we determine need in found the constitutions of either privacy pursuit” is section 21.06 related “to Texas or United States. We morality. implementing political pres- done so—not because of sures, suggested, as amicus curiae for the The United States Circuit Court despite them. that 21.06 already Fifth Circuit has held Baker v. morality. issues of concerns

FOWLER, Justice, concurring. Cir.1985). (5th Wade, 769 F.2d held, 21.06, reviewing section that court Today the Court holds that section objection to homo- strong unconstitu- view of the “[i]n of the Texas Penal Code is not See, argues rela- the rational e.g., Stephen Bright, Policital Attaclts 1. The dissent that B. Judiciary: higher Be Done Amid tionship on the Can Justice we is a test are to use here Judges Intimidate and Remove relationship test standard than rational Efforts Decisions?, Unpopular is; however, normally is not that distinction Office (1997) (observing that N.Y.U.L.Rev. law, does apparent in the case and the dissent irresponsible courts to for critics of the "[i]t sup- any particular language that point to matter, regard argue only without that results argument. ports this judicial legal principles govern to the decisionmaking."). conduct, in In prevailed Loving, sexual which has the Court struck down stat- past culture for the seven centu- ute the statute furthered a loath- Western because ries, say cannot 21.06 is implied we section some discrimination —racism that of,’ ‘totally pursuit imple- unrelated to the “superior” person marrying white menting morality, permissible person does so at the risk “inferior” black (internal omitted). goal.” citations That is being punished. Loving court of both justification upon the same which the ma- correctly recognized that this was the kind jority relies to reach the conclusion that discriminatory sought law to be van- Legislature exercising Amendment; the Texas valid quished by the Fourteenth legislative powers enacting section fallacy of racial one that advanced the agree justification However, 21.06. I Loving superiority. is not legally It duty sound. is not our to assess point case section 21.06 law, desirability the wisdom or fallacy see does not advance the Dukes, 297, 303, New Orleans v. 427 U.S. superiority. prohibits It a same-sex sexu- (1976), 96 S.Ct. 49 L.Ed.2d 511 nor relationship. al The fact that sexual orien- does court ... “[t]his invalidate bad or necessarily depends upon tation the sex of ones; policies, only foolish unconstitutional parties does not mean that section may superlegislature we not ‘sit as a to 21.06 is the kind of statute that discrimi- judge desirability legisla- wisdom gender. on the nates Gender policy tive determinations made areas treated as an elevated class under rights that neither affect fundamental nor Fourteenth Amendment because this coun- ” proceed along suspect lines.’ theAs try to rid itself of outdated saw need states, majority power “our to review the inferiority notions of a woman’s to a man.2 justification moral for a legislative act is Reed, Reed v. 404 U.S. 92 S.Ct. extremely limited.” (1971); Phillips L.Ed.2d 225 v. Martin Corp., Marietta

Secondly, majority I concur with the (1971); Seidenberg 27 L.Ed.2d 613 holdings its rationale and toas both the House, Inc., McSorleys’ Ale Old Privacy Protection and sections of (S.D.N.Y.1970); Inn, F.Supp. 593 Sail’er that, opinion. I only would add as to Kirby, Cal.Rptr. Inc. v. 5 Cal.3d whether section unconstitutionally (1971). nothing in 485 P.2d 529 There is gender, discriminates on the it basis unequal section 21.06 furthers clearly does not. merely This is not be- treatment between the sexes. The dis- equal application cause of the of the stat- contrary to argument sent’s is not women, ute to men and but because this legally sustainable one. statute discriminatory does not contain a classification on gender. based Finally, I dis- also take issue with the majority’s treatment of the reliance that, sent’s

The dissent contends like the stat- on Bowers v. Hardwick. The dissent cor- in Loving Virginia, ute struck down this case, rectly points out that Bowers v. Hardwick “equally punishes,” statute in this Clause, classification, gender deals with the Due Process while based on which majority’s analysis depends upon the makes the statute based. 388 U.S. Equal Protection Clause of the Fourteenth L.Ed.2d 1010 creative, argument That misguided. Amendment. The dissent remarks that stated, majority peals As the "neither the United has found sexual orientation to be a " Court, Supreme States Court, the Texas ‘suspect class.’ Ap- nor the Texas Court of Criminal (1) blending quite only majority “[t]his distinct elements cites Bowers times: three of the Federal Constitution in to on legislating blunts the reference notions of (2) majority’s equal protection morality; force of the privacy reference (3) arguments.” disagree. issue; I the contention that sod- omy fifty in all was an offense states and First, the dissent overlooks fact that prior to 1961. the District Columbia analysis the ultimate in both Bowers and majority’s The section analysis whether this case turns on the application of the subject 21.06 should be to some level of rational test. test basis This does heightened equal in an scrutiny protection applied differ depending on whether analysis depend does on Bowers process” an “equal protection” “due implication to the decision. dissent’s remains context. test same: does contrary is inaccurate. legitimate, the statute further some articu purpose? lated state Kadrmas v. Dickin ANDERSON, Justice, dissenting. Sch., 450, 461-62, son Pub. U.S. I respectfully majority’s dissent (1988) (analyz S.Ct. 101 L.Ed.2d 399 justify effort Herculean discrimina- ing Equal a Fourteenth Pro Amendment tory classification of section 21.06 tection claim on based whether statute despite prohibitions Penal Code the clear at issue had a “rational relation to a legiti on such discrimination contained ...”); objective government mate Wil Equal Protection Clause the United Okla., Optical liamson v. Lee U.S. Equal States Constitution and the Texas 483, 488, 563, (1955) 99 L.Ed. S.Ct. Bill Rights Rights Amendment in the (analyzing a Fourteenth Amendment Due the Texas Constitution. Process claim under the rational basis test constitutional, by stating, “... to be Appellants [i]t chal- before court enough is an that there hand lenging constitutionality [issue] Pe- Texas correction, it might thought and that They nal bring Code section 21.06. four particular (1) legislative that the measure was whether the statute issues: violates it.”); way a rational see correct Rich right protec- to federal equal constitutional Belcher, 78, 81, (2) ardson face; applied tion as and on its wheth- (1971) (analyzing 30 L.Ed.2d 231 er the statute violates to state using Fifth Amendment Due Process claim equal protection applied constitutional (3) a rational test from drawn face; statute whether the Protection cases stated the statute appellants’ right privacy violates (4) “rationally must be and free Constitution; based from under the Texas ”). invidious discrimination ... Bowers the the appellants’ whether statute violates are the scope holds that states within right privacy to under the United States legislative authority further a legiti Constitution. —and purpose legisla mate their —when appellants’ pri- I federal right believe concepts morality. tures on base laws vacy challenge the Su- is controlled Therefore, application the does Bowers preme in Bowers Court’s determination majority’s the not the force of “blunt[] The Process Hardwick. Due Clause protection arguments.” equal the does confer Federal Constitution not right Secondly, charges upon the that the fundamental homosexuals dissent 186, 106 majority process sodomy. in merges engage Bowers’ due anal- I protection 92 L.Ed.2d 140 ysis equal with the issue in this S.Ct. appel- the conclusion on case. That statement is incorrect. The would reach same relationship lants’ claim under Texas substantial between the classi- privacy the Con- Court, important government The ob- stitution. Texas bor- fication and Bowers, heavily jectives denied rowing purports serve. of an privacy right by existence asserted Similarly, section 21.06 cannot withstand

insisting adultery that is “not a im- ERA, I, scrutiny Article under the Texas plicit concept in the liberty Texas or § ERA 3a of Texas Constitution. The deeply history rooted in this state’s and part Rights. is Bill of Under of the Texas City Henry, tradition.” Sherman v. I, Rights, § Article 29 of the Bill of (Tex.1996). S.W.2d “Because ho- Clause, Inviolability statutes contra- mosexual conduct not a fundamental per anything Rights vene the Bill of right under the United States Constitu- se Bеcause void. section discrimi- tion, likewise, adultery, cannot a funda- violating the basis of thus gender, nates on right.” I Accordingly, mental Id. concur 3a, Moreover, I, ap- § Article it is void. majority the result reached on plying rigorous less strict standard of issues, appellants’ fourth third and but for McLean, scrutiny, produces mandated below, the reasons strongly set forth dis- McLean, In re same result. 725 S.W.2d agree majority’s with the of ap- treatment (Tex.1987). scrutiny strict Under pellants’ protection state and federal equal Texas, applied in proponent arguments. compel- discrimination must demonstrate ling interest there is no other

I. protect compelling manner to the state’s Application Equal Protection to This requirement places interest. An

Section 21.06: Overview support burden to squarely the statute upon challenger, the State Appellants contend section 21.06 violates State, as discussed here and rights protection their of equal under the original opinion, Court’s has failed United States and Texas Constitutions. required showing make the to defeat a Amendment, Under the Fourteenth challenge under the Texas ERA. must statute fail because even applying the standard, most deferential the rational ba- standard, justi-

sis the statute cannot be II. fied on the majority’s sole asserted basis of Section 21.06 and the Fourteenth preserving public morality, where the Protection, Equal Amendment: conduct, same defined as “deviate sexual Gender, Scrutiny Heightened intercourse” is criminalized for same sex Review participants but not for heterosexuals. The contention that the conduct same Protection Clause of the moral for merely some but no others Fourteenth Amendment commands that repeats, legitimizes, rather than Legis- “deny any person State shall within jurisdiction unconstitutional equal protection latures’ edict. stat- laws,” statutory essentially ute also fail must classi- which direction gender that are not all persons similarly fications neutral are be situated should analyzed heightened Cleburne, under scrutiny City the treated alike. Tex. v. of review, 432, 439, Center, standard of Living there is no show- Cleburne 473 U.S. the ing by State either that is an there S.Ct. 87 L.Ed.2d 313 exceedingly persuasive justification general legislation pre- for the The rule is that classification, direct, or that if there is sumed and will sustained valid be in ra- with her varieties of “deviate

classification drawn the statute is several intercourse,” conduct at tionally legitimate to inter- sexual issue related Cathy However, Bob leaves the room. within the three-tiered here. then est. Alice, consent, scheme, approaches and with protection legislative her equal federal in kinds gender engages on call for a with her several classifications based review, Cathy is step “deviate sexual intercourse.” heightened standard one scrutiny promptly violating arrested for section rigorous the most strict below 21.06. applied statutory review classifications race, alienage, origin. on or national based in indulged I this tableau to dem- standard, gen- heightened Id. Under person important point: onstrate one one classification fails it is substan- der unless simply committed a sex act while another tially sufficiently important related to a a crime. While acts were committed Mississippi governmental Univ. interest. same, exactly gender actors 718, 102 Hogan, Women different, and was difference (1982).1 3831, 73 L.Ed.2d 1090 criminal alone that determined the nature words, In conduct. other because Not A. Section 21.06 Is Gender Neutral man, no he is a Bob committed crime and appellants’ gender dis- analysis predilection may freely indulge his for “de- contention, majority at-

crimination intercourse,” viate sexual but because she tempts proof transfer the burden woman, Cathy is is a a criminal. has had an appellants to show the statute differently are treated in this sce- women gender, upon effect one and that adverse therefore, nario, and are discriminated disproportionate impact such can be traced gender-based prohi- against by explicit This discriminatory purpose. to a transfer 21.06, oth- suggest and to bition of section that sec- is based on naked assertion It is disingenuous at best.2 also erwise is it does gender-neutral 21.06 is tion that because the stat- no answer insist impose gender on not not burdens one subjects men discrimi- ute also to similar shared the other. That 21.06 is scenarios, in somehow the nation different gender appli- is manifest neutral based is rendered constitu- discrimination here following cation of the statute to the in tionally acceptable. one Discrimination events: not cured additional discrim- instance is Moreover, in section a room: ination another. people

There are three penal Alicе, Bob, out of the Cathy. approaches grew Bob revision statute, consent, In the two Alice, in 1973.3 new engages with her code scrutiny, generally which analysis of three intermediate best short tests 1. The discriminatory legislation applied classifica- considering whether violates been illegitimacy. the Fourteenth Equal Protection Clause of sex or tions based on Jeter, is set out Clark Amendment 456, 461, injury discrimi- The characteristic 100 L.Ed.2d (1988): on a the failure to treated nation lies basis, being gender-blind but rather in de- minimum, statutory At a classification opportunity a wom- prived because one is rationally legitimate to a must be related an, one is a man. Laurence H. or because governmental purpose. Classifications § 16-29 Tribe, Law American Constitutional origin, and classi- based on race or national (2d. ed.1988). affecting rights are fications fundamental scrutiny. exacting given strict] most [or Legislature, Convening 63rd these extremes of rational Between Code, which was scrutiny passed the revised Penal lies a level review and strict

369 created, residents, opportunities standards by were demarcated as in-state because the sex of the actors: deviate sexual inter- only residents were bur- out-of-state performed aby course when man and a fact, In dened the ordinance. the re- woman legal, would henceforth be but de- residents, spondents many argued, in-state performed by viate sexual intercourse two Camden, city who did within the not live men or women remain illegal. two would were as burdened the ordinance as the 1974, the after distinction between who the suit. ‍‌‌​​​‌‌‌‌​‌​​‌​​‌‌​​​​​‌​‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‍brought out-of-state workers legal illegal clearly conduct was not Rejecting “equal argu- discrimination” act, rather the of one of sex the ment, Supreme Court stated “the participants. Camden from ordinance not immune constitutional review at of out- the behest Argument B. Discrimination Not merely of-state some in- residents because A Cure similarly state disadvan- residents precisely clarity, While not a model of Williams, taged.” (citing Id. Zobel v. 457 the majority appears accept the State’s 55, 75, 2309, U.S. 102 S.Ct. 72 L.Ed.2d 672 contention ap- that because section 21.06 (1982)(O’Connor, J., concurring)). women, plies equally to men and the stat- rejec- A example second of the Court’s ute does not discriminate on the basis of tion of additional “curative” discrimination gender. I draw this based conclusion on Underwood, is noted in v. rejection Hunter 471 majority’s appellants’ U.S. ar- 222, 1916, (1985). gument Loving that S.Ct. Virginia, 388 L.Ed.2d 1, 1817, (1967) Hunter, In provi- 18 L.Ed.2d 1010 the Court struck down “equal discredited the sion application” defense that man- Alabama Constitution 21.06, and conclusion that 21.06 does not dated people disenfranchisement for who impose on burdens one not shared turpitude.” committed “crimes of moral However, the other. the United States Although facially neutral, deter- the Court rejected majority’s Court has mined the provision was enacted with the position in variety of cases. discriminating against intent of blacks and disparately impacted blacks as well be- example rejection

One of the Court’s cause had times disenfranchised ten the “equal argument discrimination” many blacks as whites. Id. at found in Bldg. United and Const. Trades Appellant, S.Ct. 1916. the State Ala- County Council Camden Vicinity bama, argued although the constitu- Mayor Camden, and Council City provision tional to discrimi- intended 208, 217-18, 104 S.Ct. blacks, against nate it did not violate the case, L.Ed.2d the Su Equal Protection Clause it was preme municipal Court invalidated a ordi against also Camden, poor intended to discriminate Jersey, nance in requiring New whites. The held that the intention forty percent employees at least to additionally city against discriminate whites working projects construction be “hardly provision] city Mayor [the saves Alabama City residents. Camden’s invalidity.” Council argued the ordinance did not vio 1916. An Privileges purpose late the strictures of additional to discrimi- against poor Clause of nate whites Immunities the Fourteenth would render Amendment, requires nugatory purpose which that out-of- to discriminate job against residents afforded the same blacks. Id. at S.Ct. 1916. Leg., §

enacted in 1974. See 63rd ch. Tex. Acts Gen. Laws the accept criminality of the con- again, declined to determinant the Court a purported additional as duct. discrimination discriminatory clearly for a law. cure Indeed, majority’s the State’s the Finally, discussed the Court justifica- application of the equal utilization argument analogous the to the logic an detrimentally impacts tion for 21.06 their Loving Virgi argument here in State’s Loving equal in the position. unified If nia, 18 L.Ed.2d the application anti-miscegenation stat- (1967). There, Virginia the State to did not utes both blacks whites argued miscegenation stat Virginia’s negate existence of a racial classifica- the do not constitute invidious racial dis utes here, tion, application equal then apply crimination because the statutes anti-homosexual-sodomy statute both Id. equally to whites and blacks. at the negate men not exis- and women does statutes, miscegenation the S.Ct. 1817. The Alternatively, tence of a sex classification. contended, equally penalized State both a if 21.06 sex-based classi- does contain whites who intermarried and blacks who applies fication men equally because intermarried; therefore, “equal appli the women, anti-miscegenation then the rendered them ac cation” the statutes in did not contain race- Loving statutes ceptable the Amend under Fourteenth classification, logical based with the corol- using a Id. ment rational basis standard. Loving wrongly lary that decided. Rejecting sophistry, the re this Court Here, majority the go the State and application of sponded equal mere great lengths to manufacture a conclusion containing racial classifications statute must, They gender neutral. 21.06 the classifications does remove the facial and as acknowledging proscription the Fourteenth Amendment’s applied gender discrimination within racial Id. all invidious discrimination. inas- any vitiates defense of that statute By using the race of an individual as much has failed to establish State of his criminality sole determinant of the either that the created classification conduct, perpetuated created and State substantially impor- related statute in racial classification violation invidious objectives, legitimate government tant and of the Fourteenth Amendment. heightened scrutiny, applied the test under Accordingly, re S.Ct. 1817. identify compelling state interest for scrutiny propriety of strict affirmed scrutiny. purposes of strict Virginia statutes as and struck down Id. at 87 S.Ct. 1817.

unconstitutional. regarding 21.06 is issue whether gender lies at the core of case. neutral reject I equal application also would cursory majority, fash- somewhat Merely here. argument punishing offered ion, Loving with and moves dispenses sodomy with other engage men who neu- to the conclusion of quickly sodomy engage men and women who among trality addressing, other without neither sal- equally, with other women forth in this things, the tableau set above classifi- vages discriminatory nor cures the neutrality is part This conclusion of II. in this statute. The sim- cation contained majority access the essential for is, is criminal ple the same behavior fact review, heightened rational avoid others, solely but not based some scrutiny gender discrimina- mandated for engage individuals who on the sex words, tion, anal- importantly, most avoid sex of In other behavior. conduct, claims under Texas individual, ysis appellants’ sole not the is the However, limiting justification” for 458 analysis ERA. the classification. incomplete. 724, to rational basis review is at 102 is U.S. S.Ct. 3331. The burden minimum, only showing, met at In equal protection analysis leg an of a important govern- the classification serves classification such islative as that drawn is, however, objectives. mental There Id. 21.06, appropriate the for framework re inquiry objective if is further the State’s viewing the scheme is to first ask whether legitimate important. reviewing The analysis, the law survives rational basis court then determine whether the must and, does, if it the is inquiry second wheth direct, requisite relationship substantial heightened er will pass the distinction objective sought between means the scrutiny. Hooper v. County Bernalillo Assessor, present. heightened used is Id. This is 612, 618, 2862, 472 U.S. 105 S.Ct. (1985). scrutiny. Hooper 86 487 L.Ed.2d Both Williams, 55, Zobel v. 457 102 U.S. S.Ct. Supreme Court the again addressed (1982) 2309, analyzed 72 L.Ed.2d 672 stat Equal issue of whether the Protection utory violating Equal classifications discrimination gender Clause forbids based heightened Protection Clause deferring T.B., in J.E.B. v. Alabama ex rel. 511 U.S. analysis scrutiny until a determination is 127, (1994). 1419, 128 L.Ed.2d 89 it made that survived rational anal basis Specifically, the Court examined use of

ysis. Attorney Gen. New York v. Soto- gen peremptory challenges on the basis of 898, 904, 106 Lopez, 2317, 90 S.Ct. der Pro Equal under the dictates of the (1986). here, Thus, 899 L.Ed.2d holding tection court’s Clause majority has determined that 21.06 per Kentucky, prohibits Batson v. which survives rational scrutiny, and fails emptory solely strikes on the race. basis of apply heightened scrutiny review, to then 1712, 476 106 U.S. S.Ct. 90 L.Ed.2d 69 analysis Equal under the Protection Equal court held the Protec Evans, incomplete. Clause is Romer jury tion prohibits Clause discrimination in 517 116 U.S. S.Ct. L.Ed.2d 134 J.E.B., gender. selection on basis of (1996) approach. is with consistent 511 U.S. at 1419. In reach S.Ct. There, because Amendment was viola conclusion, ing that J.E.B ac tion apply Protection Clause knowledged that “our Nation had a ing review, rational basis there was no long history and unfortunate dis sex need height to examine the statute under crimination,” a history warrants the which scrutiny. ened majority’s con heightened scrutiny all gender- afforded clusion that 21.01 is gender neutral will not based classifications. Id. heightened allow omission of scrutiny re In Virginia, States v. U.S. United view. 515, 533, L.Ed.2d Standard, C. Review For Gender Dis- (1996), Court reiterated crimination proof burden of cases official classifi- gender cation on requiring based gender- Inasmuch as section 21.06 is not reviewing to determine court whether neutral, inquiry the next determining is proffered justification per- exceedingly is the appropriate proof burden of and as- suasive, jus- and declared burden of “[t]he signing burden. in Missis- demanding entirely tification and it Women, rests sippi University the Court Further, on the the Court held State.” party seeking uphold held that justification genuine, that the statute classifies must individuals hypothesized post their in re- carry basis of must the bur- invented hoc And, showing “exceedingly sponse litigation. den of persuasive must Cleburne, City rely generalizations on overbroad about terest. talents, satisfy To the rational capacities, preferences different 105 S.Ct. 3249. burden, relationship the State asserts the of males and females. Id. This rationally permissible statute related to heightened applied review standard governmental purposes, discourage- classifications based on sex. Id. historically perceived of to ment behavior Satisfy Heightened the D. Failure to immoral, promotion family of be the Scrutiny Standard in values. This assertion was reiterated in support the State’s of its motion brief court, In its filed with this original brief rehearing majority for en banc. The also the State contends that 21.06 must section adopts relationship this rational standard.4 upheld if there rational relation- is majority’s arguments the The State’s and ship disparity the of treatment between under challenge that 21.06 a fed- survives legitimate reflected in that statute and a equal protection eral are untenable.5 The to apply state interest. State seeks general legislation pre- rule that is First, majority the and the the State if sumed to be valid and will be sustained in applied wrong the standard. As set out Cleburne, by classification the statute is three of City drawn standards of review, highest rationally legitimate equal protection to a in- from to related state Nevertheless, analysis majority’s appellants’ assuming the statute is The entire of even face, gender gender on protection premised neutral its is equal is issues on argument applied, also neutral as an ad- gender that is on its belief 21.06 neutral facе. have, part appellants. I in A vanced above, II comparison of of The 21.06 the definition application of demonstrated the sec- "deviate out sexual intercourse" in set gender applied tion 21.06 is not neutral when below, believe, adequately 9 I in note disman- recognizes appellants. majority a to that neutrality tles facial contentions. This misin- facially may support equal an neutral statute majority terpretation of 21.06 has led the into protection claim where it is motivated dis- Moreover, reasons, unexplained error. application criminatory its results intent and majority merged process analy- due effect, discriminatory citing Village ain protection analysis equal with stat- sis an Arlington Heights Metropolitan Housing right ing engage there fundamental to is no Corp., 97 50 Dev. 429 U.S. sodomy. Whatever the merits of that conten- (1977). Despite this acknowl- L.Ed.2d 450 tion, analysis it is from the Court’s sourced rule, here, edgment majority prefers of the Due Process Clause Bowers Hardwick impose opinion, in the bur- as elsewhere unwilling where the Court was to extend the required inquiry proof in an based den of confer "a Due Process Clause to fundamental gender Supreme discrimination. The on engage in acts consensual sod- subjected gender-based consistently Court has 186, 192, omy.” U.S. 92 scrutiny heightened rec- classifications (1986). blending quite L.Ed.2d This danger government ognition real of the of the Federal Constitution distinct elements policies professedly are based reason- majority's equal protec- of the blunts force may be reflective able considerations in fact Indeed, arguments. majority that the tion generalizations. archaic and overbroad analyze attempting to 21.06 under the in fact J.E.B., 135, 114 S.Ct. 511 U.S. (a) Clause its Due Process is manifest L.Ed.2d ban failure to address how a of homosexual can, sodomy preserves public permit- morals while majority's State statement that the (b) instances, ting sodomy, justifying purpose many pass heterosexual laws the analysis and the statute based on historical How- preserve which is to morals correct. law, ever, subject and references to seven- Pro- the common license Clause, century banning con- not ration- laws homosexual and if the statute is teenth tection interest, Colony. Bay ally State duct in the Massachusetts See related to the asserted analysis without Cass Sunstein's classifies on discussiоn of interest, re- compelling license is between the Due Process and distinctions at 12 below. voked. Equal Protection Clauses note lowest, burden scrutiny, heightened strict re hold the statute satisfies the dual view, justification or relationship. showing persuasive rational 440-441, objective for and that the at 105 S.Ct. 3249. Under Her the classification State, discriminatory employed held are sub man v. court that decisions means objective. mini Missis represent stantially related to the 724-725, Women, protections sippi mum that a state Univ. must afford (Tex. here, Where, S.Ct. 3331. there citizens. S.W.2d majori whisper federal even a or hint in the Crim.App.1991). The constitution is not floor rights, ty opinion purporting sets the for individual demonstrate how rational state constitutions cannot from the satisfied the minimum subtract State rights guaranteed by relationship required to sustain showing United States Constitution; however, they provide equal protection can 21.06 in the face of rights challenge, additional their It it is to how to citizens. difficult understand therefore, appears, majority that the State and the the can conclude 21.06 does not majority attempted apply appellants’ equal protection to a lower violate federal threshold standard of review gender- rights.6 to heightened

based discrimination than the Proper Application Heightened E. of standard mandated the United States Scrutiny Review Supreme Court. not It is within the dis cretion of an ignore intermediate court to Turning judice, to the case a now sub United precedent States part for rather succinct two test exists regarding appropriate the standard of re evaluating validity gender-based the of the gender view for chal based classifications against in federal classification 21.06 a here, lenged, appellants as have done un protection it equal challenge, and is Equal der the Protection Clause of the in dual on the couched terms of burdens in Fourteenth Amendment. The court (1) pro- of proponent the statute: has the Heitman stated succinctly: the rule more a ponent legitimate demonstrated and ex- is liberty this court not at to the reduce justification ceedingly persuasive for the protections afforded level its citizens to a in gender based classification contained less than established under feder the (2) 21.06; proponent and has the demon- al constitution. 815 at A S.W.2d direct, requisite the re- strated substantial fortiori, by applying improper the stan lationship between the classification and review, majority dard of has accom important government objectives it plished following: ap it has afforded Mathews, to purports serve. Heckler v. pellants level protection a less than that 728, 745, 465 U.S.

prescribed by opinions courts whose we (1984). L.Ed.2d to required follow. (1). justification for asserted here

Second, majority apparently promotion family ac- has 21.06 values and cepted discouragement the State’s issue immoral At obfuscation behavior. outset, gender 21.06, “pro- discrimination thus low- it be noted that should ering proof. family the State’s burden of It is has de- motion values” not been State, gender it illogical well established that a classifica- fined is not to party seeking up- relationship tion fails unless the that it to the assume has some here, above, where, majority's equal protec- 6. As noted Protection Clause as analysis majority incomplete tion it has ra- fails concluded satisfies engage scrutiny Hooper, required in intermediate basis review. tional challenged review of a classification under Because the test articulated marriage procreation. institution of conjunctive, be that the State’s contention must Heckler in the is described be- permitting deviate sexual intercourse ar- if the follows that State failed promotes fami- couples tween heterosexual exceedingly per- a legitimate ticulate sex ly values while such conduct same justification, need reach we suasive couples something than that. promotes less test. part second Neverthe- interesting to note is the fact What less, prevention family even if values intercourse, as deviate defined sexual legitimate and were of immoral behavior Code, regardless section 21.01 of Penal justifications gender persuasive partner, sex will one’s classification, the discussion above demon- fertilized, permit a female’s ovum be no there is connection between strates must, It creating pregnancy. thus there- sodomy and the penalizing homosexual fore, acquies- that the State’s concluded objectives. Neither achievement of those inter- cence in heterosexual deviate sexual sodomy sod- nor homosexual heterosexual heterosexuals, whether permits course Further, life. en- omy can create new not, variety engage married or sodomy pun- couraging heterosexual historically repugnant “recreational sex” C sodomy, as a Class ishing homosexual contend, must, that acts. the State To only, with fine scuttles misdemeanor promotes by family a man somehow values preventing of purpose asserted State’s in intercourse engaging deviate sexual per- as immoral inasmuch 21.06 behavior woman, a but undermines those val- with any by intercourse mits deviate sexual the same sex performing ues deviate State man with woman. the not, view, man, my in act with a does showing a of the to make how has failed exceedingly per- an showing a of constitute substantially is gender-based classification gender the based justification suasive proffered the ob- directly and related to classification 21.06.7 immoral jective discouraging of behavior. justification of Nor does the asserted rests, part, the Perhaps failure on constitute discouraging immoral behavior explain- impossibility logically of apparent dis- showing. a to be such The behavior in 21.06 is even ing how the classification be- couraged deviate intercourse is sexual objective remotely to that where related be- couples. tween sex That same same simultaneously is sanc- such behavior is, by couples havior between heterosexual engaged in rou- presumably tioned and is something to be implication, moral and Where, here, tinely. proponent as the Sodomy is either immoral encouraged. statutory classification gender-based vigor- appears that the State’s it is not. It relationship requisite fails establish has been advanced ous defense 21.06 objective and the means between inconsis- without due consideration it, is invalid. to achieve the statute used hand, of, condemning tency on one Women, 458 Mississippi Univ. See im- immoral, on sodomy but the other as at 102 S.Ct. 3331. U.S. sodomy perfectly embracing plicitly benign purpose aof The mere recitation not ex- incongruity such Again, moral. protects not an automatic shield ceedingly persuasive. Evans, on sexual orienta- against based homosexuals Court in Romer v. 7. Because the tion, justifications, L.Ed.2d same U.S. it follows those (1996), justification here, rejected the implicitly satisfy heightened advanced could not family in a promoting values rational scrutiny. III part below. See analysis that discriminated statute against any above, inquiry pur- into the actual ment of 21.06. set forth As poses general State’s is that underlying statutory contention the stat- scheme. behavior, discourages ute immoral at without Having performed 102 S.Ct. 3331. regard private public to the nature analysis dictated intermediate scru- Nevertheless, addressing thereof. the ma- tiny, it must be concluded the State failed contention, jority’s we are not told how persuasive justification both to articulate a government practice with interference and to a direct relationship demonstrate personal only, of adult consensual choice in objectives between the tendered matters of intimate sexual behavior out of means objectives utilized to achieve those with public view the no commercial in 21.06. of legitimate the absence component will serve to advance the cause objectives, the inevitable inference is “public or do morality” anything other disadvantage raised that homosexu- than conduct impose restrict individual als contained in animosity 21.06 born of a concept private morality chosen Romer, toward persons affected. See again, applies State. Here when one 1620. The Leg- test, clear Heckler articulated and else- islature’s prohibition removal of the where, that gender-based classification sodomy heterosexual while retaining it for fail equal protection challenge must ab- cannot, sodomy view, homosexual in my showing sent a classification is explained by anything animus toward directly substantially and related to the persons it affects.8 preservation public morality, the conclu- Indeed, purported justifica- the State’s Perhaps sion is obvious. this is the reason tion for the classification in terms the majority labors so hard to conclude of upholding public morality founders on 21.06 is neutral.9 public distinction private between III. morality. private morality of an indi- vidual synonymous is not with nor neces- Equal Protection, Improper Classifica- sarily has an effect on what is known as tions and Rational Basis Review public morality. The majority believes A. preserves 21.06 public morals. That con- Romer v. Evans clusion is apparently reached sponte sna without slightest showing the by the State I firmly 21.06 gen- believe establishes a that such consequence classification, flows from enforce- der-based on its face and as My 8. conclusion person that 21.06 was bom out of ute. "A commits an offense if he persons animus towards the affected thereun- engages in deviate sexual intercourse with by der is buttressed the statute’s evolution. another same individual the sex." Tex. Pen. of 1974, Until penal prohibited the code oral 1994) (Vernon § (emphasis 21.06 Code Ann. copulation and anal “with another human added). clearly specifies The statute what the Thus, being.” prohibited the statute all acts gender of the actors must be to constitute a sodomy, of performed by whether members of Curiously, criminal offense. the definition of State, opposite the or the same sex. Pruett v. "deviate sexual intercourse” contained in sec- 191, 463 S.W.2d (Tex.Crim.App.1970). 193 In gender tion 21.01 is neutral. Such conduct is 1974, penal a new was code enacted wherein "any any part defined as contact between of sodomy performed by members of the same genitals person the of and the one mouth or sex proscribed, continued to be but the same person; penetration anus of another or ... the performed by act opposite members of the sex genitals person or the anus of another became, years, legal. for the first time in 114 object.” § with Em Tex Pen.Code Ann. (Vernon 1994) added). (emphasis That 21.06 is not neutral on its face by language is demonstrated in the stat- by applied, primary in the Code the State of rationale advanced Penal to in the State for Amendment adverted -will withstand middle tier Texas that opinion, respect for other citizens’ scrutiny analysis for the of such mandated association, and, particular, freedom of classifications under the Protection Equal employers who liberties landlords of the Fourteenth Amendment. Clause objections personal religious however, Appellants, challenge also homosexuality. 116 S.Ct. 1620. Id. at unconstitutionally dis- statute because In striking down Amendment homosexuals, thus against criminates im- stated, “[e]qual protection laws unequal them posing burden on based through im- is not achieved indiscriminate on their sexual orientation because hetero- at position inequalities.” targeted by sexuals are not 21.06 when inequality 1620. The the Court de- S.Ct. Here, engaging the same conduct. singled that homosexuals were tected wаs test, by preferred much rational basis accorded out Amendment less State, applicable, but the result of a protection solely of the law virtue of analysis applying precedent correct federal membership their in the class. Id. contrary sought by outcome Although the Court uti- S.Ct. State. its anal- lized a rational basis standard for ysis, Amendment 2 still failed this most disposition The case controls the standard because the Court deferential appellants’ that section 21.06 contention legiti- no found the amendment advanced against discriminates a class based on sex interest. Id. government mate Evans, ual Romer orientation is concluded Amendment Romer Court 134 L.Ed.2d 855 to further a classified homosexuals (1996)10. Romer, In States United end, proper legislative but to make them Supreme Court that a con held Colorado unequal everyone else. Id. (Amendment 2) stitutional amendment Petitioner, Interestingly, the State prohibiting protection from dis official Colorado, justifications ‍‌‌​​​‌‌‌‌​‌​​‌​​‌‌​​​​​‌​‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‍other offered crimination on orienta the basis sexual to those offered Amendment similar tion the Fourteenth Amendment’s violated Romer, here.11 State State Using Protection Clause. rational “legitimate governmental argued the inter review, most deferen standard promotion ests” Amendment were the test, tial the Court invalidated Amendment family norms of traditional moral and val (1) contained a classification of which 45-47, ues. Brief at Rom See Petitioner’s (2) “homosexuals,” from ho and withdrew 310026). (1995 Specifically, er the WL mosexuals, others, protection legal but no posited the amendment fostered State prohibited from and rein discrimination ability convey the to “family privacy and children,” laws policies. by disallowing statement these and See their values to homosexuali- 627, 116 “implicit the endorsement of id. at 1620. S.Ct. 15, majority accept refused to part B the In note the 10. Section of this III examines 11. did fact that the State of Colorado in the fact application of rational review to a the basis arguments its brief. Even make those in city justifications the the ordinance where though arguments out not set in justify not sin- classification contained did by going opinion, may them a reader access treatment, gling group one for different out the Romer through the reference in WestLaw rendering irrational the classification thus opinion, brings up briefs contain- which applied. as and unconstitutional rejected arguments. U.S. at ing 1620. 116 S.Ct. ty pro- by granting special morality” justification fostered laws deemed notions Hardwick, in Bowers v. sufficient tections efforts could undermine the [that] Wade, Baker at and parents of some to teach moral traditional (5th Cir.1985), 769 F.2d both of values,” and deterred factionalism within upon by which are relied the State here.12 by “maximiz[ing] individual liber- Romer, focused, Supreme In ty, including preservation of traditional instead, upon apparent the animus from a norms.” that provision drew a classification “for Far accepting justifications these purpose disadvantaging group legitimate, as apparently the Court did by the 517 U.S. at burdened law.” not in they find merited even review Amendment 2 S.Ct. Because silentio, Thus, Court, sub opinion. re- classification, pro- drew such and then jected “implementation of traditional disadvantage ceeded to homosexuals be- bring 12. Justice dissent Scalia's in Romer concedes a more balanced disinterest notes, as "plac[ing] much. He that in perspective legislation. ed See Cass R. prestige Sunstein, of [the Court] behind Sexual and the Orientation Constitu proposition opposition homosexuality Relationship Note tion: A on the Between Due reprehensible religious is as as racial or Protection, Equal bias/' Process and 55 U. Chi. essentially the Court has sub silentio over- Bowers, L.Rev. 636-37, ruled U.S. at Bowers. 517 find, respondent the Court declined to as re agree I with this characterization of quested, engage fundamental Romer, and further note the rational sodomy sodomy homosexual analysis employed may the Romer Court liberty deeply a fundamental that was rooted exacting more that employed than history Nation's tradition. Bow Court in concurring opinion Bowers. The ers, at 106 S.Ct. 2841. appreciate Justice Fowler fails the differ- Clause, Equal Protection on the other ence in the applied rational basis test in a hand, entirely served an different set of process analysis Bowers due versus a Romer purposes from the Due Process Clause. That equal protection analysis. emphatically protect clause is effort to Although applied both Bowers and Romer traditionally against held novel values analysis the rational basis to the state action short-term deviations. The clause is not is, nevertheless, question, there a differ- all; looking consciously backward it was analysis ence in the review rational basis designed to practices eliminate that existed at under the Due Process Clause and under the expected the time ratification and were Equal Protection Clause. These two clauses Equal to endure. The function of the Protec- perform quite different its sub- functions. protect disadvantaged groups is to tion Clause dimension, stantive the Due Process Clause against present past the effects of dis- protects range rights; of basic it does not by political majorities. crimination It is not speak constitutionality to the of classifica- quo rooted in common law or status baselines operates tions. The Protection Clause Anglo-American or in conventions. The base- complement as a functional to the Due Pro- principle equality line instead a Clause, addressing cess set of different operates existing practice. as a criticism of questions. The Due Process fre- Clause has traditions; safeguard The clause does not it quently been understood as an to re- effort traditions, protects against long however shortsighted strict short-term deviations Sunstein, standing deeply supra and rooted. norms; widely from held social it conclusion, at 1174. Justice Fowler's important looking backward dimension. For that rational basis review under the Due Pro- purposes process, of due the for in- baseline law, quiry cess Clause is the same as rational basis re- to has tended be the An- common glo ig- Equal view under the Clause practice, quo. American or the Protection status is, therefore, closely important Due nores the distinction between the Process Clause asso- ciated with the view that the the Su- functions two clauses how that role of preme shapes Court is to limit dramatic and insuffi- distinction review under each clause ciently change, protect using reasoned to tradition the rational basis standard. class, membership police powers comprehen cause of their the are broad constitution, sive, the both and feder equal protec- the violated state amendment the al, result “forbids its exercise when the guaranteed by tion of the law the Four- rights, the would be the destruction of teenth Amendment. guarantees, privileges, and restraints ex here, much statute at issue like cepted from powers govеrnment a Amendment draws classification for University Rights.” the Bill of Fazekas v. purpose disadvantaging group (Tex.Civ. Houston, 299, 305 565 S.W.2d fact, law. Justice burdened 1978, writ ref d App. Dist.] [1st —Houston Scalia, readily in his to Romer dissent n.r.e.) (citing Co. Travelers’ Ins. v. Mars that, agreed hardly “there can be more (1934)). hall, Tex. S.W.2d palpable against discrimination class Thus, stripped justifications, itsof asserted making than defines the conduct that drawn in 21.06 is arbi classification class criminal.” Id. at 116 S.Ct. 1620. irrational, trary and and fails the rational agree I Scalia that the statute with Justice basis test. here, by proscribing at “deviate sexu- issue Regarding appellants’ issue sexual only engaged al intercourse” when with 21.06, aspect of orientation discrimination sex, discrimi- members of one’s own does aim, majority, inter concludes there is However, nate fol- against homosexuals. sodomy, engage no fundamental Romer, lowing justifications I view the do not a sus- and homosexuals constitute State, proffered by the enforcement of tra- ir- pect class. two These conclusions family morality ditional norms of val- here not appellants relevant do ues, nothing politically- more than these and the first con- arguments, raise thinly-veiled, charged, animus-driven clich- implicates Bowers v. Hardwick clusion is, like és.13 Section 21.06 Amendment equal argued protection where status-based enactment divorced addressed. factual context from which one can discern interests; relationship legitimate B. persons it is a classification of undertaken City of Cleburne sake, something Equal for own at permit. Legislation containing Protection Clause does a classification Equal Although challenged 116 S.Ct. 1620. state’s under Protection behavior, I to abolish what it views as immoral am not unmindful the sensibilities so, many deeply persons persuaded who are it provided free to does not do sodomy is evil homosexual and should single people prohibi- out a class of prohibited. That is not issue here. Rath- tion, freely permitting while other classes to er, protection issue equal the federal before behavior, thereby, again, engage in the same court, an- which I believe should be running the federal Protection afoul of negative, is the Federal swered in the whether regarding But the use of the Clause. the law discriminatory permits recourse Constitution implement law biases is clear: criminal law for the to the sanctions of criminal may be the reach of "[p]rivate biases outside objective. achievement of that The communi- law, cannot, directly law or indi- entirely ty remain and its members free Cleburne, give City rectly, effect.” them theological persua- employ teaching, moral (using ration- 105 S.Ct. 3249 sion, advice, psychological psy- parental zoning relationship ordi- al test invalidate counseling, and other noncoercive chiatric special permit requiring a use for home nance practice means to condemn the of homosexu- mentally special where retarded no 476, Onofre, sodomy. People N.Y.2d al required multiple permit for similar other’ 415 N.E.2d 941 n. 3 N.Y.S.2d facilities). dwelling (1980). Alternatively, legislature if the wishes must, rationally justified singling order rational out a Clause in to withstand bases review, rationally special basis the retarded for the use be related home for City legitimate governmental purpose. no restrictions permit, imposing while such Cleburne, in freely permitted 473 U.S. 105 S.Ct. on uses the other however, rely, on a may The State neighborhood, the Court conclud- classification whose as relationship ed: goal serted render is so attenuated as to in [Requiring permit this case arbitrary Zo distinction irrational. an irrational appears us rest on bel, 61-63, 457 U.S. at 102 S.Ct. 2309. retarded, mentally prejudice against the Objectives as a harm a such bare desire to including occupy those who would group legiti politically unpopular are not and who would live under the [home] Cleburne, City mate State interests. supervised regulated closely highly and 447, 105 473 U.S. at S.Ct. 3249. expressly provided by conditions Cleburne, City the Court struck federal state and law. city zoning down a requiring ordinance 450, 105 Id. at S.Ct. 3249. special permit use for a for the home retarded,

mentally exempting City Applying Cleburne rational permit houses, such a apartment fraternity here, basis review State’s houses, hotels, apartment hospitals, pri- grounds purporting justify do not vate other specified clubs and uses. criminalizing rationally justify same sex Plainly stated, equal protection issue sodomy imposing while no such burden on presented “May city there was: re- engaging in as others acts defined deviate quire permit facility oth- when intercourse, sexual the classification is ar- multiple er care dwelling facilities are by bitrary preju- and irrational and driven freely permitted?” Id. at dice. It makes no sense for the Statе to 3249. The Federal District had Court preserved by contend that morals are found, and the Court of Appeals and Su- criminalizing sodomy homosexual while preme repeated fact obvious supporting sodomy by heterosexual cou- that if potential the home residents of ples, including persons. unmarried The for the in mentally retarded were not fact simply may rely State a classifica- afflicted, so home was the same relationship goal tion to an asserted whose all respects, other its use would autho- is so as to the distinc- attenuated render zoning rized under the ordinance. Id. at Zobel, arbitrary tion or irrational. 449,105 S.Ct. 3249. 61-63, Where, U.S. at S.Ct. 2309. here, city presented sup- several preserving bases the State interest of mo- porting negative rality light the ordinance: fear and is irrational in authorization others, living by attitudes the facili- of residents near the same immoral acts ty; location of the home hundred rational review under five statute fails year plain; the size of flood the home Protection Clause should be occupy it. people number of who would held in violation the United States Con- Doe, City Heller v. Cleburne Court demonstrated stitution. Doe presented city how L.Ed.2d 257 each factor S.Ct. (1993) light city (stating made no classification statutory sense of how the groups similarly treated other situated fails rational basis review rests on when 448-150, wholly relevant respects. grounds Id. at irrelevant to achievement objective). none 3249. Because of the asserted the state’s statute, justification majority’s the the for the the discussion of histori- State’s sodomy, illegitimate cal definitions of includes a majority which has the overlooked century to a of reference seventeenth law stereotyping core of 21.06. lying the Bay Colony, suggests the Massachusetts subjected homosexuals have been C. In concurring tradition of disfavor. his Norris, Judge concurring in Watkins v. Cleburne, City opinion in Justice Ste- of (9th Army, 875 F.2d Cir.

vens, joined by Burger, Justice dis- Chief view, 1989), captured, my the core ratio analysis the tanced himself from tiered underlying Equal nale Protection because, equal protection claims he be- Clause of the Fourteenth Amendment. lieved, the rational basis test is suitable for equal He protection wrote that doc inquiries. all such 473 U.S. at majority prevent trine does every equal protection S.Ct. 3249. enacting laws on val based its substantive case, wrote, ask he we certain protection simply ue re Equal choices. questions: by basic class is harmed What quires majority its apply that the values subjected it legislation, and has been Indeed, evenhandedly. equal pro to a our “tradition of disfavor” laws? plays important tection doctrine role Id. at 3249. In a footnote to perfecting, than frustrating, rather question, Justice Stevens stated process. The re democratic constitutional following: quirement of advances the evenhandedness especially vigilant The Court must be political legitimacy majority rule in evaluating rationality clas- majoritarian safeguarding minorities from involving group sification has oppression. Id. subjected to a tradition of been disfavor a traditional classification more [for] Therefore, I hold section 21.06 would likely pausing to be used without to violates the Protection Clause based Equal justification a newly than is consider it contentions that discrimi- appellants’ Habit, created classification. rather gender and sexual nates based on both analysis, acceptable than makes seem Accordingly, I would sustain orientation. distinguish natural male and between appellants’ challenging point error first female, citizen, legitimate alien and protection grounds, equal on federal illegitimate; much of our too applied on its face. history inertia in there was same distinguishing between black white. IV. stereotyped But that sort of reaction relationship have no rational may —other and The Texas Section 21.06 pure prejudicial than discrimination —to Rights Amendment for which the classifi- purpose the stated 21.06 contend- challenge also Appellants Id. at n. 6. cation made. I, ing § Article 3a of Texas it violates valid Because State not shown proscribes in that it otherwise Constitution rationally 21.06 that state interest for solely on the basis of the lawful behavior sodomy only by proscribing when served provision participants. sex of the That homosexuals, performed the unavoid- Rights provides Bill as fol- Texas statute able conclusion is lows: stereotyped merely a continuation shall not de- Equality under law traditionally disfavored reaction to a race, sex, acceptance abridged By its nied group. unquestioning 381 creed, color, cers, origin. judiciary. Republican Party or and the national This Dietz, (Tex. self-operative. is amendment 940 90 Texas v. S.W.2d of 1997) Co. v. (citing Travelers’ Ins. Mar In my opinion, there are two standards shall, (1934)). Tex. S.W.2d by may which review of 21.06 section the Texas ar framers of Constitution challenge made in face of a under the the they to ticulated what intended be the per Texas ERA. first is a se rule remedying means of a constitutional viola I, § based on the mandate of Article 29 of contrary tion: a to a constitutional law Rights, the Texas Bill of the second is Bouillion, provision is void. 896 S.W.2d at strict scrutiny guidance under the of In re (Tex.1987). 149. McLean, 725 S.W.2d 696 State, the in the exercise of while A. Per Se Rule police powers, may legislation enact I, § Article 29 of Texas Bill the of health, reasonably tending promote to the Rights the following regarding states rule comfort of the public, or welfare the extent power the government of the state to of power is limited and must be exer- usurp any in rights of contained Arti- in cised conformance with the limitations cle I of the Texas Constitution: prescribed by the constitution. Faulk v. guard against To transgressions of the Ass’n, Buena Burial Park Vista high powers herein we delegated, de- (Tex.Civ.App. S.W.2d 891-95 Paso —El clare everything in this ‘Bill of State, writ); see no also Villarreal Rights’ excepted general out of (Tex.Crim.App.1996) S.W.2d powers government, of shall forever (character- (McCormick, P.J., concurring) inviolate, remain contrary all laws izing approach “privacy expec- dissent’s to thereto, following provisions, tation” analysis coming “perilously close shall be void. rights to subjecting our constitutional too Section 29 has been interpreted as fol- closely majoritarian political processes any provision lows: Rights of the Bill of moment, passions and temporary to the self-executing anything extent that which idea is inconsistent with the under- done in City violation of it is void. lying Rights.”). the Bill of Bouillion,

Beaumont v. 896 S.W.2d (Tex.1995). Therefore, guaranteed equality 148-149 when the When a law conflicts I, through with the Texas ERA is viewed rights guaranteed by Article prism “Inviolability constitution declares Texas that such acts are Clause,”14 void Bill Rights because the is a limit becomes clear section on Indeed, 21.06, power. non-gender State Id. at as a classifica- the Bill neutral Rights express legislature consists of tion limitations of created violation power 3a, legislature, I, § executive offi- of Article is void.15 I, excepts everything § Article 21.06 on the discrimination rights bill general powers Constitution, out of the though under the Texas even government rights and states such included opinions Rule requires from this inviolate, placing therein are remain thus every issue and nec- [] “address raised beyond rights power these of the state essary disposition appeal." to final I, government usurp. § Tex. Const. Art. Nevertheless, P. 47.1. its deci- Tex.R.App. (Vernon 1997). interp. commentary majority today meaningless sion renders people placing the action of the of Texas in majority really 15. The never addresses the constitution, engaging the ERA in the state ERA, companion Inviolability Texas nothing gratuitous less than nullification Clause, analysis challenge appellants’ in its Scrutiny classifying persons B. In re ulation for different Strict Under McLean subject treatment on basis of their sex precise examining Before manner judicial to scrutiny)). strictest Austin a analyzed which the McLean court stat- Appeals Court of has also concluded sex, ute on that discriminated the basis Equal Rights Amendment elevates sex to a it is informative to review that court what class, thereby invoking strict scru- suspect say meaning had about the of the to Texas tiny a law on review when differentiates ERA. gender. Express, Lens Inc. v. give The McLean court declined to Ewald, (Tex.App. 907 S.W.2d —Aus- interpretation Texas ERA an identical to writ). tin no process given state and federal due nor majority have Neither State equal guarantees. and 697. S.W.2d applied scrutiny the strict mandated Both the United States Constitution and Nevertheless, McLean and Mercer. process due Texas Constitution had applied. must McLean standard estab- protection guarantees and equal before the a step process examining lished a two adopted ERA If was in Texas in 1972. Id. aas of .the challenged statute violation equal process protection pro- due and to step ERA. The first is determine wheth- and the ERA are identical given visions equality er the law has been denied. under amendment, interpretations, then the 1972 inquiry at 697. That first is S.W.2d adopted by margin by a four to one Texas relatively equality simple. denial voters, futility. Id. exercise appellants was under the law because here Thus, court the McLean concluded the prosecuted under 21.06 of Texas were Equal Rights Amendment is more exten- McLean, Penal the court held Code. specific provides protection sive and more disparate treatment of аn that because than both United States and Texas due child’s father and mother was illegitimate process equal protection guarantees. Family aby in the Texas required statute not, Id. court did at 698. The McLean Code, equality the denial of was under standard,16 however, adopt per se law. Id. instead concluded the Texas ERA elevated class, is suspect subjecting any inquiry equality sex thus The second whether scrutiny, person’s of a member- gender discrimination to strict was denied because sex, color, race, protected in a class of placing proponent ship the burden on the creed, origin. As I discriminatory provision or national Id. demonstrate interest, with compelling and that there no discussed above connection equal analysis appellants’ pro- federal protect other manner to the state’s com- 21.06, challenge Mercer v. it is manifest on pelling (citing interest. Id. tection Trust., gender Indep. the face of that statute it is North Forest Sch. Board of Dist, that serves as the (Tex.Civ.App.— particular actors 538 S.W.2d n.r.e.) that dis- prohibitions, so trigger ref d 21.06’s Houston writ [14th Dist.] repeated here. need not be (holding any based sex cussion classification part classification; addressing of McLean reg- thus law or the second suspect earring high length and totally lenging hair people school’s an act of the Texas the ERA based on expressed restrictions under disregarding constitutional their discrimination). Dist., Indep. Sch. will. See Barber v. Colorado (Tex.1995) (Gammage, 901 S.W.2d J., dissenting majority’s in McLean to Article refusal intervene There no reference I, § apply ERA to class action chal- Texas test, morality and fami- couples, denigrates the focus is on whether the discrimi- sex prohibited by ly nation 21.06 is the ERA. values.

Id. Sex-based discrimination is allowed to above, rejecting As “mo- implicitly noted only co-exist pro- with the ERA when the justifications rality” “family values” as ponent prove of the discrimination can discriminatory for Colorado’s constitution- there is no manner to protect other amendment, al the United States state’s compelling Surpris- interest. Court struck amendment down the under ingly, counsel for the State conceded at a rational basis standard. See n. su- argument oral that he could not “even see pra. Logic promotion if dictates that how he begin argument could to frame an morality family norms and values as thаt compelling there awas State inter- sponsored rationalizations for state dis- est,” much less demonstrate that interest pass crimination will not a rational basis offer, for this Court. The. State did how- review, standard of such contentions would ever, what it legitimate characterized as wilt in scrutiny the face of strict mandated purposes for the statute: enforcement of conclude, by therefore, McLean. I that principles morality promotion and because the not State has shown there are family values. protect no alternate means to the State’s simply It is enough not for the State to family asserted interests of values and mo- say it has an important interest furthered rality through gender-based other than by discriminatory law. Id. at 698. 21.06, discrimination in the statute violates Even goal the loftiest does justify not sex- I, § Article 3a of the Texas Constitution based in light discrimination of the clear is, therefore, and void. See Tex. Const. prohibition constitutional contained in the I, § Art. Texas ERA. scrutiny Id. Strict is not satis- Accordingly, appellant’s I would sustain fied until part the State has met a two point challenging of error two 21.06 under test: articulation compelling of a in- state the Texas ERA. terest, showing and a that there is no protect other manner to the state’s com- Thus, V.

pelling interest. even accepting morality family and values sup- bases Conclusion porting the discrimination compelling as Analyzed correctly binding under Su- interests, is showing there no here preme precedent, Texas Penal Code that there is no other manner of protecting section 21.06 is in Equal violation morality family and values other than Protection Federal Clause of the Constitu- prosecuting sodomy. same sex It would tion rationally because it is neither related appear goal that the of protecting state’s objective to the legitimate presented State these originally interests was achieved on for its support, height- nor viable under a non-discriminatory prohi- basis when the scrutiny ened the State because failed to bition sodomy applied persons. to all compelling by articulate a interest served supra. See n. There are other avenues gender objectives by discrimination exhibited achieving the State’s without Further, applied. 21.06 on resorting pointed its face and as by to 21.06 as out Rights, court in under the Texas Bill of supra. See n. It because is Onofre. manifestly suggest discrimination 21.06 contra- illogical sodomy, Amendment, performed when venes the it pro- Rights heterosexuals is values, morality family automatically regard motes and that void without performed justification. same acts when same holding prejudice.” without bias or the re- here 21.06 is unconsti- purely is sult reached in this dissent tutional is tantamount to a conclusion application Texas nothing function wrong pro- that there with 21.06, and Federal Constitutions to section majority correctly hibited conduct. nothing Accordingly, respect- I more. disagreement with the states mere fully dissent. Legislature pro- whether over the conduct scribed 21.06 is or is not a bad deed overturning This a basis a statute.

statement, however, incomplete ignores duty judge has when con- by a conflict with the fronted statute constitution. may legislative The courts declare en- FELTHAM, Irmgard Indi Kim Gertrud actments unconstitutional void vidually and Natural Guardian cases, judicial not because the some Lloyd Felt Next Friend of Graham power superior degree dignity is ham, Ryan Feltham, Alexander legislative. Being required de- Individually Repre and as Personal cases clare what the law is which of the Estate of Steven sentative them, they before must enforce come Lloyd Feltham, Joseph and Frank law, paramount as the the constitution Yurkowski, Appellants, legislative comes

whenever enactment exercising in conflict it. with judges judi- claim no high authority, the TEXTRON, INC., BELL HELICOPTER supremacy; they only the ad- cial Textron, Inc., Hydraulic Research [expressed public ministrators of the will Textron, Inc., Hydraulics Ronson Unit in the If an act of the constitution]. Aerospace Corporation, Kaiser & void, is held it is not because legislature Corp., Appellees. Electronics judges any over the control No. 2-99-095-CV. power, is

legislative but because act constitution, by the and be- forbidden Texas, Appeals of Court of is people, cause the will of ‍‌‌​​​‌‌‌‌​‌​​‌​​‌‌​​​​​‌​‌​​​​‌‌​​​​‌​​‌​‌​​​‌‌​‍which Fort Worth. declared, paramount to that of therein 22, 2001. March representatives expressed in their law. Rodriguez,

Ex 39 Tex. parte protect does not The Texas Constitution does, however, guarantee morality; equality to all the law. Tex. persons under

Const, I, § My personal art. 3a. views here are irrelevant to conduct involved required. I outcome that believe duty foregoing my prepara- in the 3B(5) of opinions tion of because Cannon of Judicial Conduct re- Texas Code judicial quires judge “perform duties

Case Details

Case Name: Lawrence v. State

Court Name: Court of Appeals of Texas

Date Published: Mar 15, 2001

Citation: 41 S.W.3d 349

Docket Number: 14-99-00109-CR, 14-99-00111-CR

Court Abbreviation: Tex. App.