Lawrence v. Texas Merits Reply Brief, Slides of Law

Download Lawrence v. Texas Merits Reply Brief and more Slides Law in PDF only on Docsity! No. 02-102 IN THE SUPREME COURT OF THE UNITED STATES ____________ JOHN GEDDES LAWRENCE AND TYRON GARNER, Petitioners, v. STATE OF TEXAS, Respondent. _______ On Writ Of Certiorari To The Court Of Appeals Of Texas Fourteenth District __________ REPLY BRIEF __________ Paul M. Smith William M. Hohengarten Daniel Mach David C. Belt Sharon M. McGow an JENNER & BLOCK, LLC 601 13th Street, N.W. Washington, DC 20005 (202) 639-6000 Mitchell Katine W IL LIA M S, BIRNBERG & ANDERSEN , L.L.P. 6671 Southwest Freeway, Suite 303 Houston, TX 77074 (713) 981-9595 Ruth E. Harlow Counsel of Record Patricia M. Logue Susan L. Sommer LAMBDA LEGA L DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, Suite 1500 New York, NY 10005 (212) 809-8585 Counsel for Petitioners TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I. Respondent’s Objection to Consideration of the Questions Presented Is Waived and, in Any Event, Meritless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. The Homosexual Conduct Law Unconstitutionally Burdens a Fundamental Right . . . . . . . . . . . . . . . . . . . . . . 3 III. The Homosexual Conduct Law Draws an Explicit Classification That Denies Equal Protection of the Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 iv TABLE OF AUTHORITIES - continued Page State v. Morales, 826 S.W.2d 201 (Tex. App. 1992), rev’d on jurisdictional grounds, 869 S.W.2d 941 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 State v. Saunders, 381 A.2d 333 (N.J. 1977) . . . . . . . . . . . . . 9 United States v. Salerno, 481 U.S. 739 (1987) . . . . . . . . . . . . 2 United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) . . . . . . . . . . . . . . . 12, 16, 20 United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Washington v. Glucksberg, 521 U.S. 702 (1997) . . . . . . . . . . 4 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . 1 STATUTES AND RULES Sup. Ct. R. 15.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Ga. Code Ann. § 4286 (1867) . . . . . . . . . . . . . . . . . . . . . . . . 8 Tex. Code Crim. Proc. Ann. art. 44.02 . . . . . . . . . . . . . . . . 2 Tex. Pen. Code § 21.06 . . . . . . . . . . . . . . . . . . . . . . . . passim MISCELLANEOUS The Federalist No. 10 (Madison) (Isaac Kramnick ed. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Model Penal Code and Commentaries (1980) . . . . . . . . . . . 8, 9 v TABLE OF AUTHORITIES - continued Page Seth Mnookin, Is Rolling Stone’s HIV Story Wildly Exaggerated?, Newsweek Web Exclusive, Jan. 23, 2003 . . . . . . . . . . . . . . . . . . . . . . . . 18 Seth Mnookin, Using ‘Bug Chasers,’ Newsweek, Feb. 17, 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Randy Von Beitel, The Criminalization of Private Homosexual Acts, 6 Human Rights 23 (1977) . . . . . . . 14 The Court should reject Respondent’s meritless and untimely arguments for avoiding a decision on the important questions presented and should enforce the core rights of liberty and equal protection that are at stake in this case. Texas has no proper role supplanting the individual decisions of adults with the legislature’s or electorate’s different judgments concerning the private, intimate relations proscribed by the Homosexual Conduct Law, nor any legitimate basis for singling out same-sex couples for a criminal ban. Through this law, Texas flouts the essential American values of privacy and equal justice for all. Those values, jointly embodied in the Fourteenth Amendment, are critical limits on the power of the State that require vindication here. I. Respondent’s Objection to Consideration of the Questions Presented Is Waived and, in Any Event, Meritless. Texas begins with a belated plea for the Court to dismiss this case. The State now objects to consideration of the questions presented on the ground that the record does not reveal more, beyond the scope of the crime charged, about Petitioners’ sexual relations or orientations. That objection is waived because it was not raised in the State’s opposition to the petition for certiorari. See Sup. Ct. R. 15.2; City of Canton v. Harris, 489 U.S. 378, 383-85 (1989). Moreover, it has no merit. Speculation that Petitioners might have committed some other offense that was neither charged nor proved cannot save the constitutionality of this law or Petitioners’ convictions under it. This is a criminal prosecution; therefore, the State must allege and prove the elements necessary for conviction. In re Winship, 397 U.S. 358, 364 (1970); see Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). Petitioners were charged with and convicted of the crime of “Homosexual Conduct” simply for “engag[ing] in deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” Pet. App. 127a, 129a; see also id. 114a-15a (State’s evidence offered on Petitioners’ pleas of nolo contendere). The record also shows that Petitioners are unmarried adults and that the police intruded on and arrested them in Lawrence’s home. Id. at 129a, 141a. If the State had wanted to premise its actions here on something more, the State would have had to allege and 4 definitively rejected the position “that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified,” because that contraction of fundamental rights “would be inconsistent with our law.” Id. at 847; see also id. at 848 (citing precedents expanding liberty beyond 19th-century confines). And Casey itself struck down a spousal notification law that was “consonant with the common-law status of married women” – and thus with historical legal tradition – but “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.” Id. at 898. Texas relies primarily on the plurality opinion in Michael H. v. Gerald D., 491 U.S. 110 (1989), and on Washington v. Glucksberg, 521 U.S. 702 (1997). Yet those cases do not break from the Court’s long-standing recognition that traditions and liberties evolve, see Casey, 505 U.S. at 850, and do not support a rigid, strictly historical view of fundamental rights. In Michael H., a majority of the Justices expressly rejected the plurality’s statements on this very point. 491 U.S. at 132 (O’Connor, J., joined by Kennedy, J., concurring in part); id. at 137-41 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., dissenting). And Glucksberg was a case in which tradition, contemporary legislation, and powerful state interests all coincided to defeat the claim that a fundamental right was at stake. See 521 U.S. at 716-19, 728-35. Thus, in Glucksberg the Court had no occasion to decide that history alone is decisive, much less to overrule its precedents holding just the opposite. See also County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring). While the Court examines relevant history in all cases, the personal liberty that is protected by the Due Process Clause is not perpetually frozen in the mold set by the laws of 1868 or any other bygone age. Nor is the Court’s job merely to mirror all changes around it. The Court must apply its “reasoned judgment” to determine the deeper question of what is required to protect Americans’ ordered liberty today. 2. The State here steps over the line and beyond its proper 5 powers to invade an essential American liberty. The fundamental rights question in this case turns on who has the power to make basic decisions about the specifics of sexual intimacy between two consenting adults behind closed doors. Is the decision about expressions of intimacy and choice of partner for two adults to make through mutual consent, or for the State to control through a criminal law enacted by the legislature? In this most personal realm of human existence, the Constitution limits government’s power to substitute the preferences of the majority for the individual choices of adults. Three previously recognized aspects of liberty point to that conclusion: the liberty interests in intimate relationships, bodily integrity, and the privacy of the home. Texas tries to isolate these liberties as discrete and unrelated legal technicalities, but in truth they are aspects of a single continuum that comprises the fundamental rights of a free people. See Casey, 505 U.S. at 848-49. The virtually unlimited power to regulate sexual intimacy claimed by Texas directly interferes with constitutionally protected intimate associations. The relationship of an adult couple – whether heterosexual or gay – united by sexual intimacy is the very paradigm of an intimate association in which one finds “emotional enrichment” and “independently . . . define[s] one’s identity,” and it is protected as such from “unwarranted state interference.” Roberts v. United States Jaycees, 468 U.S. 609, 618-20 (1984) (family and other highly personal relationships protected under rubric of intimate association); Board of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545-46 (1987) (same). The State impairs the protected relationship of two adults whose shared life includes sexual intimacy by regulating – or even outright forbidding – the sexual dimension of their relationship. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485 (1965). In addition, Texas’s view of the constitutional status of the home ignores the foundational connection between protection of the home and protection of the private intimacies that are nurtured there. See, e.g., Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting). Likewise, the State’s dismissive response 6 to Petitioners’ fundamental interests in bodily integrity fails to come to grips with the reality that this case concerns the government’s attempt to dictate whom one must take as a sexual partner – a person of the other sex – and the specific state- approved acts that may be performed. That implicates bodily integrity because the State is using the criminal law to impose the majority’s own sexual preferences on every individual. Indeed, the State’s amici would justify the law precisely because it attempts to compel (or “channel” people into) heterosexual relationships. By outlawing most types of sexual intimacy with any partner of the same sex, the State drastically interferes with a core aspect of personal liberty. 3. Gay Americans have the same liberty interests as heterosexuals here. Pet. Br. 16-19; Am. Psych. Ass’n. Br. 15-23. Texas does not appear to argue otherwise. Instead, although the law at issue does not do so, the State “urges the Court to draw the line at the threshold of the marital bedroom,” Resp. Br. 24, thereby permitting government regulation or prohibition of all sexual intimacy outside marriage, whether with another adult of the same or different sex. But adult Americans who remain unmarried are not mere wards of the State who have ceded total dominion over the most intimate details of their lives to a majority of their neighbors or legislators. Texas’s attempt to limit the fundamental interest at stake in this case to marital unions must be rejected. Nor is restriction of this fundamental liberty to married persons supported by the Court’s decisions. It is true that the Court’s earliest privacy decisions, Griswold and Justice Harlan’s dissent in Poe, suggested special solicitude for sexual relations in marriage. Since then, however, the Court has made clear that such rights belong to individuals, whether married or unmarried. Eisenstadt, 405 U.S. at 453 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”); Carey v. Population Servs. Int’l, 431 U.S. 678, 9 8 See Pet. Br. 23 n.17 (listing cases); Commonwealth v. Balthazar, 318 N.E.2d 478, 481 (Mass. 1974), reaffirmed by Gay & Lesbian Advocates & Defenders v. Attorney General, 763 N.E.2d 38, 40 (Mass. 2002); People v. Onofre, 415 N.E.2d 936 (N.Y. 1980); Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980). 9 The same deep-seated understanding undergirds the general repeal or invalidation of laws criminalizing fornication. Pet. Br. 23 & n.18; see, e.g., Model Penal Code and Commentaries, art. 213, note 3, at 437 (“assigning criminal punishment to instances of private immorality can justly be regarded as an invasion of personal liberty”); State v. Saunders, 381 A.2d 333, 343 (N.J. 1977) (“the liberty which is the birthright of every individual suffers dearly when the State can so grossly intrude on personal autonomy”). Beginning in 1961, the legislatures of more than half the States repealed their sodomy laws in agreement with the influential policy of decriminalization expounded in the Model Penal Code. See Pet. Br. 23; Bowers, 478 U.S. at 194 n.7. “[T]he decisive factor favoring decriminalization . . . [was] ‘the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality.’” Model Penal Code and Commentaries § 213.2, cmt. 2 (quoting Report of Committee on Homosexual Offenses and Prostitution, Great Britain, at 52 (Am. ed. 1963)); see also ABA Br. App. 10a-11a (1973 ABA report urging repeal because “such laws impinge on the constitutionally protected zone of privacy that surrounds each individual and serve no valid state purpose”). In addition, beginning in 1974, the courts of another eleven States struck down their sodomy laws (or narrowly construed them not to apply to private consensual conduct) in light of the laws’ invasion of a realm that belongs to individuals, not the State.8 These judicial invalidations likewise reflect a fundamental judgment that our system of ordered liberty bars government intrusion into this quintessentially private sphere based on the mere moral preferences of the majority. Pet. Br. 24. As the Tennessee court explained, “[i]nfringement of such individual rights cannot be tolerated until we tire of democracy and are ready for communism or a despotism.” Campbell v. Sundquist, 926 S.W.2d 250, 261 n.9 (Tenn. Ct. App. 1996).9 Today, consensual sodomy offenses remain on the books in only 13 States. Tellingly, only 10 10 Another chimera concerns the right to marry. Petitioners here assert a shield to be free from government interference, not any right to affirmative state recognition or benefits. See infra at 19. four of those States appear here in defense of these laws. Thus, our Nation’s history of shielding the particulars of sexual intimacy between two adults from undue government interference is not limited to the decisions of “a few state appellate courts . . . in the 1990s,” Resp. Br. 20. Rejection of intrusions on private sexual intimacy is centuries-old, and rejection of the invasive laws themselves is decades-old, extending to the vast majority of jurisdictions in this country. The significance of this tradition is reinforced by the fact that the movement has been all in one direction. In the 42 years since 1961, no State has turned backward from abolition, and none has initiated a campaign of enforcing sodomy laws against private consensual conduct. Our Nation’s tradition of protecting fundamental rights is a “living thing,” Casey, 505 U.S. at 850 (quotation marks omitted), and safeguarding this most private aspect of two adults’ lives from unjustified state encroachment is an extremely vital part of that tradition today. 5. Texas and its amici expend considerable effort litigating cases that are not before the Court. They conjure up a parade of horribles – invalidation of laws against bestiality, prostitution, incest, adultery, bigamy – that will allegedly follow a ruling for Petitioners. Those are chimeras. Comparison of the intimate relations of two human beings – married or unmarried, same-sex or different-sex – with bestiality is simply offensive. Nor do the other kinds of laws in the parade involve such a wholesale and devastating burden on individual liberty as here – where all same- sex partners are prohibited, for a vast range of intimate acts. Moreover, in the other areas conjured up to distract the Court, the State has important interests not present here. See Pet. Br. 22 n.16; infra at 19.10 Petitioners have carefully defined the fundamental liberty interest at stake as freedom from undue State intrusion into the particular choices of sexual expression made by two consenting adults in private. A ruling that Section 21.06 violates that liberty 11 interest will affect no laws other than those against sodomy and fornication. Those laws have already been repealed or invalidated in the vast majority of the States and are almost never enforced where they remain on the books. 6. Texas has not even tried to argue that there is any justification for Section 21.06 sufficient to withstand the scrutiny applicable to laws burdening fundamental rights. Nor could it. The only “justification” offered is the desire to force every individual and family to conform to the majority’s preferred moral image. But state-compelled standardization by majority rule is antithetical to a fundamental right. See Pet. Br. 15-16, 28-29. American governments were not constituted to give one faction – “by the superior force of an interested and overbearing majority” – absolute power to dictate every last detail of the private lives of their neighbors. See The Federalist No. 10, at 123 (Madison) (Isaac Kramnick ed. 1987). To guard against that very tyranny, “[i]t is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, 505 U.S. at 847. Where “liberty is infringed,” it is “the function of this Court” to redeem that promise. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 640 (1943). III. The Homosexual Conduct Law Draws an Explicit Classification That Denies Equal Protection of the Laws. Texas has convicted Petitioners under a criminal law that explicitly targets same-sex couples but not different-sex ones for the same behavior. The State cannot evade equal protection review by attempting to recast this law as a “neutral” conduct regulation, because the law expressly treats identical conduct differently depending on who is engaging in it. There is no permissible justification for that classification, even under the most deferential equal protection review. In this specific context, a judgment that the same conduct is immoral when engaged in by one class of persons, but not when engaged in by the majority, necessarily represents a negative judgment about the targeted class, not the conduct. Equal protection bars laws based on bare negative attitudes toward one group. And any other rationale 14 14 Sexual orientation and handedness are both characteristics tied to behavior, but that does not take away their differentiation between people. Neither does the fact that some people are ambidextrous or bisexual, or that some might on occasion experiment contrary to their nature. 15 There are tapes of legislative sessions concerning Texas’s reform of its entire penal code in 1973, see Tex. Legislators Br. 13 & n.5, but those tapes do not illuminate any collective reasoning underlying the particular provision at issue here. See generally Randy Von Beitel, The Criminalization of Private Homosexual Acts, 6 Human Rights 23, 29-35 & nn. 43, 46-47 (1997); Baker v. Wade, 553 F. Supp. 1121, 1150-51 (N.D. Tex. 1982) (“[n]o legislative history is available”), rev’d, 769 F.2d 289 (5th Cir. 1985). “writing with the left hand” targeted those who are left-handed and overtly discriminated on the basis of handedness, there can be no doubt that the Homosexual Conduct Law targets gay people and overtly discriminates on the basis of sexual orientation.14 2. In every equal protection case the Court must examine, at a minimum, whether a legal classification “bear[s] a rational relationship to an independent and legitimate legislative end.” Romer v. Evans, 517 U.S. 620, 633 (1996). This is not determined by the actual thinking of legislators.15 It is, rather, an assessment whether “plausible” reasoning leads to the conclusion that a legitimate, distinct purpose exists for the line drawn by the statute. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). No plausible reasoning links a permissible government purpose to criminalization of same-sex couples for the same behavior that is freely allowed for different-sex couples. a. The State now patches together, for the first time, a hypothesis that Texas legislators may have wanted to avoid constitutional litigation over “state authority to regulate marital behavior” when they repealed the prior, evenhanded sodomy law. Resp. Br. 41; see also id. at 36-40. That guess at the historical sequence of events does not in any way justify the new law and its classification targeting same-sex couples. The State is positing good intentions in repealing the old law, not any legitimate “legislative end,” Romer, 517 U.S. at 633, for the new one. Texas’s affirmative enactment of the Homosexual Conduct Law in 1973 did not involve some complex “remedial scheme” or “incremental 15 reform,” Resp. Br. 40, but simply a decision to enact a same-sex- only sodomy offense, and the issue now before the Court is whether that law’s classification has a valid purpose. Targeting same-sex couples for criminal penalties bears no rational relation to freeing married couples from regulation; those couples were freed with the repeal of the old law. Moreover, the line drawn by the new classification focuses in no way on marriage, but instead distinguishes between all same-sex and all different-sex couples. See infra at 17. b. Throughout this litigation, Texas has asserted “the promotion of morality” as the basis for Section 21.06. Resp. Br. 42-48. As offered, however, that rationale is not independent of the classification, is illegitimate, and is irrational. Pet. Br. 35-40. Texas seeks to broaden this case into a referendum about the moral basis for lawmaking. Resp. Br. 42-49. But the case does not call for any absolute and sweeping statements about morality as a justification for laws. Petitioners are not arguing that morality can never be the basis for legislation. So long as fundamental rights and equal protection requirements are left intact, government can enact moral positions into law. Typically, a moral idea coincides with lawmaking that addresses a concrete harm or need of the State. As Texas concedes, Bowers “stands alone as the only modern case in which this Court has approved moral tradition as a submitted rational basis for legislation,” without any connection to tangible harms or needs. Resp. Br. 27. Bowers did not consider equal protection and did not decide the narrow issue about morality now before the Court: May the State enact a criminal law solely to express the legislature’s or electorate’s greater moral disapproval of same-sex couples than of different-sex couples when they do exactly the same thing? Texas says the majority finds it “more ‘immoral and unacceptable’” for persons of the same sex to engage in the prohibited acts than for persons of different sexes to engage in the same acts. Resp. Br. 48; Br. in Opp. 18. But a discriminatory moral code – i.e., moral condemnation of one group but not another for the very same conduct – merely expresses disapproval 16 16 The goal of deterring the prohibited conduct, see Resp. Br. 41, is not separate from the law’s own statement of policy and does not explain its classification. Moreover, Texas never offers any concrete problem or “factors which are properly cognizable” by government, City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985), that could explain uniquely punishing same-sex couples. Its only aim here is consistency with the majority’s discriminatory morality. Resp. Br. 48 (statute expresses “baseline standard” of “moral beliefs of the people of the State”); id. at 48 n.31 (insinuating that same-sex “deviate sexual intercourse” is “detrimental” in some way that different-sex “deviate sexual intercourse” is not, but never identifying detriment). or negative attitudes toward the group condemned. It is being held to a higher moral standard than the majority that is judging it. Such negative attitudes toward a class of persons are an impermissible basis for lawmaking. Negative attitudes toward a class do not become a legitimate ground for adverse treatment simply by appending the term “moral” to them. Pet. Br. 36-40.16 The State glaringly rewrites history when it claims that entering into an interracial marriage, or breaking down gender- based employment barriers, or living together in a commune or other household of unrelated persons did not engender moral objections. Resp. Br. 47-48. See, e.g., Moreno, 413 U.S. at 535 n.7 (“Government initially argued . . . that the challenged classification might be justified as a means to foster ‘morality’”); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 725 n.10 (1982) (noting false idea that women’s equal employment opportunities would cause “moral and social problems”). As in the past, morality is being used in this case to refer to discomfort with and dislike of a particular social group. That is not a form of morality that equal protection of the laws allows. See Romer, 517 U.S. at 633-35; Moreno, 413 U.S. at 533-38; see also Wasson, 842 S.W.2d at 501; Jegley, 80 S.W.3d at 353. c. Though Texas limits its defense of its law to the two arguments addressed above, various amici search for other possible rationales. That search is unavailing. The classification drawn in Section 21.06 bears no rational relation to any conceivable and permissible State purpose. 19 laws invoked by amici, this is not a statute in which a legislature has drawn distinctions to ensure that sexual intimacy is consensual, to protect the welfare of children, to regulate and discourage the business of prostitution, to delineate and enforce the legal relationship of marriage, or to keep sexual activity from public places. Distinguishing between couples, for the same common forms of intimacy, based solely on whether they are same-sex or different-sex bears no rational relationship to any conceivable, legitimate interest of the State. 3. The State’s amici seek to divert attention from the Homosexual Conduct Law’s discriminatory intrusion into private intimacies by asserting that Petitioners’ equal protection claim is “tantamount to a challenge to the constitutionality of limiting marriage to a heterosexual couple.” Am. Ctr. for Law and Justice (ACLJ) Br. 10. To the contrary, Petitioners seek equality under the criminal law, to keep the State out of their bedrooms, not any affirmative access to marriage or other legal structures or benefits. This canard was also offered in Romer to distract the Court, see Brief of Amicus Curiae Concerned Women for America, Inc., 1995 WL 17008430 at *23-24, Romer v. Evans, 517 U.S. 620 (1996) (No. 94-1039), and has no more validity here. Enforcing the guarantee of equal treatment under the law requires not a “sweeping, novel constitutional decision,” ACLJ Br. 1, but a decision comporting fully with past precedent and basic fairness. One should not be convicted of a crime, or face stigma and other penalties flowing from a criminal law, for engaging in forms of intimacy that other adults may freely enjoy. 4. Texas and its amici defend the Homosexual Conduct Law as if there were no history of anti-gay discrimination in this country and as if this law did not function as a badge of inferiority, spreading harms well beyond direct criminal prosecutions. See Pet. Br. 40-50. But those realities cannot simply be ignored, especially in a case where the State is defending a rarely enforced law as an official expression of condemnation of those Texans who have intimate same-sex relationships. See Resp. Br. 48. Indeed, Texas previously stipulated that Section 21.06 “brands 20 lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law,” including “in the context of employment, family issues, and housing.” Morales, 826 S.W.2d at 202-03; see also, e.g., ABA Br. 12-14; Human Rights Campaign Br. 12-13. Government and private actors deny equal treatment to gay and lesbian citizens in direct reliance on Section 21.06 and other laws like it, because they understand perfectly well that same-sex-only sodomy laws brand gay people with second-class status. As in Romer and many earlier cases, the Court should here play its critical role of ensuring that lawmaking does not simply impose inequality on one group of citizens and encourage their further mistreatment and harassment. 5. Finally, the Court should not lose sight of the deeply personal interactions that are targeted by this discrimination. Petitioners’ fundamental rights and equal protection claims reinforce each other. The State of Texas has singled out a small and disfavored minority of its citizens and criminalized the expressions of sexual intimacy they share with their chosen partners, but not the same sexual intimacy of others. That is a double affront to the promise of our Constitution. Because it discriminates at the core of the private sphere that is constitutionally protected against state intrusion, the Homosexual Conduct Law is “inconsistent not only with that equality of rights which pertains to citizenship . . . , but with the personal liberty enjoyed by every one within the United States.” Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissenting). CONCLUSION The judgment of the Texas Court of Appeals upholding Section 21.06 and affirming Petitioners’ criminal convictions thereunder should be reversed. Respectfully Submitted, Paul M. Smith William M. Hohengarten Daniel Mach David C. Belt Sharon M. McGowan JENNER & BLOCK, LLC 601 13th Street, N.W. Washington, DC 20005 (202) 639-6000 Mitchell Katine WILLIAMS, BIRNBERG & ANDERSEN , L.L.P. 6671 Southwest Freeway, Suite 303 Houston, TX 77074 (713) 981-9595 Ruth E. Harlow Counsel of Record Patricia M. Logue Susan L. Sommer LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 120 Wall Street, Suite 1500 New York, NY 10005 (212) 809-8585 Counsel for Petitioners Dated: March 10, 2003