Judicial Notebook

The U.S. Supreme Court recently reviewed Lawrence v. State (41 S.W.3d 349, Tex. App.--Houston, 14th Dist., 2001), a case in which two men were convicted under a Texas law criminalizing "deviate sexual intercourse" between same-sex persons. If one of the men had been a woman, no criminal violation would have occurred.

Legal background

Under Texas Penal Code Section 21.01, any person who has oral or anal contact with another person's genitals or who uses an object to penetrate the genitals or anus of another person has engaged in deviate sexual intercourse. Section 21.06 criminalizes deviate sexual intercourse between same-sex persons only. Opposite-sex persons who engage in the statutorily defined conduct are not subject to criminal prosecution. Anyone convicted under 21.06 is guilty of a Class C misdemeanor and subject to a fine no greater than $500.

In the original case, John Geddes Lawrence and Tyron Garner appeared before a Texas criminal court for alleged conduct in violation of 21.06. Police reportedly investigating a weapons disturbance entered a residence and observed the two men engaging in deviate sexual intercourse. The court found the defendants guilty and fined them each $200. Lawrence and Garner appealed the decision, asserting that the law violated their equal protection rights by discriminating on the basis of sexual orientation and gender, and also infringed on their due-process privacy guarantees.

Equal protection law requires a delicate balance between the ideal of treating similarly situated individuals alike and the practical necessity of government classifications. As a general rule, legislation is presumed to be valid and sustainable if the classification is rationally related to a legitimate state interest. However, certain "suspect" legislative classifications, such as those based on race or national origin, require the strictest level of review and are sustained only if they are narrowly tailored to serve a compelling state interest. Meanwhile "quasi-suspect" classifications based on gender invoke an intermediate level of review are sustained only if they substantially relate to a sufficiently important governmental interest. These standards of review dramatically affect the outcomes of equal protection cases. Plaintiffs generally lose under rational basis review because that standard is extremely lenient and deferential to the government. Plaintiffs are much more likely to prevail when courts subject legislative classifications to intermediate or strict scrutiny.

The Texas Criminal Court of Appeals overruled the defendants' equal protection claim involving sexual orientation and gender discrimination. First, the court reasoned that because there is no fundamental right to engage in sodomy, and homosexuality is not a suspect class, rational basis was the appropriate level of review. Applying that standard, the court held that the prohibition of homosexual conduct was rationally related to the legitimate state interest of preserving public morality. Second, the court explained that while Section 21.06 included the word "sex," the statute neither elevated one gender over the other nor imposed burdens on one gender not shared by the other. Consequently, the statute was gender-neutral on its face and did not require further scrutiny unless the defendants could demonstrate disparate impact emanating from a discriminatory purpose.

The court also overruled the defendants' claim that the law violated their due-process privacy rights. Although no general right to privacy exists in the federal or Texas state constitution, both contain express limitations on government power from which certain "zones of privacy" have emerged. Relying on precedent, the court ruled that homosexuality did not fall within a protected zone of privacy under the due-process clause because it is not a right that is "implicit in the concept of ordered liberty" or "deeply rooted in this nation's history and tradition."

APA's response

APA is one of at least 30 parties to have filed amici "friend of the court" briefs with the Supreme Court (see page 58). APA's brief distilled years of social and behavioral science pertaining to sexuality, sexual orientation and prejudice into three main arguments relevant to the Texas law in question. First, decades of research and clinical experience have shown that homosexuality is a normal variant of sexual identity and that there is no inherent association between homosexuality and psychopathology. Second, sexual intimacy is central to the human experience and affects people's mental health, psychological well-being and social adjustment. Efforts to deprive gays and lesbians of sexual intimacy find no support in social science. Third, Section 21.06 is destructive because it reinforces prejudice, discrimination and violence against homosexuals. Discouraging gays and lesbians from revealing their true sexual identities can cause serious psychological distress and perpetuate prejudice by limiting contact between the heterosexual majority group and homosexual minority group.