2 Criminalizing Intimacy and Identity 2 Criminalizing Intimacy and Identity

Conservative attitudes toward sexual orientation and gender identity have long been contested. So, too, have basic understandings of what sexual orientation or gender identity mean. We will look at the forces that led to the criminalization of same-sex intimacy and trans citizens, with a focus on the nineteenth century. We will study how law and politics defined and redefined these concepts--and how this history has informed more recent debates about social justice and constitutional rights for LGBTIQ+ Americans.

2.1 Brief of Historians George Chauncey et al., Lawrence v. Texas (No. 02-102) 2.1 Brief of Historians George Chauncey et al., Lawrence v. Texas (No. 02-102)

2003 WL 152350 (U.S.) (Appellate Brief)

United States Supreme Court Amicus Brief.

John Geddes LAWRENCE and Tyron GARNER, Petitioners,

STATE OF TEXAS, Respondent.

No. 02-102.

January 16, 2003.

On Writ of Certiorari to the Court of Appeals of Texas, Fourteenth District

Brief of Professors of History George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda P. Kerber as Amici Curiae in Support of Petitioners

Roy T. Englert, Jr.

Counsel of Record

Alan Untereiner

Sherri Lynn Wolson

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

Counsel for Amici Curiae

TABLE OF CONTENTS
TABLE OF AUTHORITIES	ii
INTEREST OF THE AMICI CURIAE	1
INTRODUCTION AND SUMMARY OF ARGUMENT	1
ARGUMENT	3
I. BOWERS v. HARDWICK RESTS ON A FUNDAMENTAL MISAPPREHENSION OF THE HISTORY OF SODOMY LAWS	3
II. DISCRIMINATION ON THE BASIS OF HOMOSEXUAL STATUS WAS AN UNPRECEDENTED DEVELOPMENT OF THE TWENTIETH CENTURY	10
III. TOLERANCE TOWARD HOMOSEXUALS HAS INCREASED, RESULTING IN ACCEPTANCE BY MANY, BUT NOT ALL, MAINSTREAM INSTITUTIONS	20
CONCLUSION	30
APPENDIX (qualifications and affiliations of amici)	1a

*ii TABLE OF AUTHORITIES
Cases:
Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995)	28
Bowers v. Hardwick, 478 U.S. 186 (1986)	passim
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)	9
Gestl v. Frederick, 133 Md. App. 216, 754 A.2d 1087 (2000)	26
In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002)	26
Jacoby v. Jacoby, 763 So.2d 410 (Fla. Dist. Ct. App. 2000)	25
L.S.K. v. H.A.N., 2002 WL 31819231 (Pa. Super. Dec. 17, 2002)	26
Loving v. Virginia, 388 U.S. 1 (1967)	27
Planned Parenthood v. Casey, 505 U.S. 833 (1992)	9
Romer v. Evans, 517 U.S. 620 (1996)	28
Statutes and Executive Orders:
Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (May 28, 1998)	23
Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 2, 1995)	23
*iii Mychal Judge Police & Fire Chaplains Public Safety Officers' Benefit Act of 2002, Pub. L. No. 107-196, 116 Stat. 719 (June 24, 2002)	25
Cal. Gov't Code § 12920	23
Conn. Gen. Stat. § 46a-81c	23
D.C. Code Ann. §§ 2-1401, 2-1402	23
Fla. Stat. Ann. § 63.042 (West 2001)	26
Haw. Rev. Stat. §§ 368-1, 368-2	23
Md. Ann. Code art. 49B, § 14	23
Mass. Gen. Laws ch. 151B, §§ 3, 4	23
Minn. Stat. § 363.12	23
Nev. Rev. Stat. 613.330	23
N.H. Rev. Stat. Ann. § 354-A:6	23
N.J. Stat. Ann. § 10:5-3	23
2002 N.Y. Laws Ch. 2 (A.1971)	23
R.I. Gen. Laws § 28-5-2	23
1973 Tex. Gen. Laws ch. 399, § 1, 3	3
Vt. Stat. Ann. tit. 21, § 495	23
Wis. Stat. §§ 11.322, 11.325, 11.36	23
*iv Miscellaneous:
American Academy of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002)	26
American Lutheran Church, Human Sexuality and Sexual Behavior G(5) (10th Gen. Conv. 1980)	22
Joan Biskupic, For Gays, Tolerance Translates To Rights, Wash. Post, Nov. 5, 1999	24
Gregory Black, The Catholic Crusade Against the Movies, 1940-1975 (1997)	15
Gregory D. Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (1994)	15
Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (forthcoming 2003)	15
Paul Boyer, Urban Masses and Moral Order in America, 1820-1920 (1978)	9, 13
Stacy Braukman, “Nothing Else Matters But Sex”: Cold War Narratives of Deviance and the Search For Lesbian Teachers in Florida, 1959-1963, 27 Feminist Stud. 553 (2001)	19, 20
Business Brief, Wall St. J., June 23, 2000	25
Central Conference of American Rabbis, Resolution on “Rights of Homosexuals” (88th Ann. Conf. 1977)	22
George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, Salmagundi, Fall 1982/Winter 1983, at 114	12, 13
*v George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994)	passim
George Chauncey, A Gay World, Vibrant and Forgotten, N.Y. Times, June 26, 1994	14
George Chauncey, The Postwar Sex Crime Panic, in True Stories From the American Past 172 (William Graebner ed., 1993)	17, 18
Christian Church (Disciples of Christ), Resolution 7747 (Gen. Assembly 1977)	22
Dudley Clendinen & Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America (1999)	28
Ed Cohen, Legislating the Norm: From Sodomy to Gross Indecency, 88 S. Atlantic Q. 181 (1989)	6
Robert D. Dean, Imperial Brotherhood: Gender and the Making of Cold War Foreign Policy (2001)	17
John D'Emilio, The Homosexual Menace: The Politics of Sexuality in Cold War America, in Passion and Power: Sexuality in History 231 (Peiss & Simmons eds., 1989)	19
John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970 (1983)	16, 17, 19
John D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (2d ed. 1997)	passim
*vi Havelock Ellis, Sexual Inversion (3d rev. ed. 1915)	12
Employment Discrimination on the Basis of Sexual Orientation: Hearings on S. 2238 Before the Senate Comm. on Labor and Human Resources, 103d Cong., 2d Sess. (1994)	28
William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet (1999)	28
William Eskridge, Jr., Hardwick and Historiography, 1999 U. Ill. L. Rev. 631	7, 8, 9
William Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 Iowa L. Rev. 1007 (1997)	6
Michel Foucault, The History of Sexuality (Robert Hurley trans. 1978)	11
David C. Frederick, Supreme Court and Appellate Advocacy (2003)	27
Estelle Freedman, “Uncontrolled Desires”: The Response to the Sexual Psychopath, 1920-1960, 74 J. Am. History 83 (1987)	17, 18
John Gallagher & Chris Bull, Perfect Enemies: The Battle Between the Religious Right and the Gay Movement (1996)	27
Gay & Lesbian Alliance Against Defamation, Where We Are on TV, available at http://www.glaad.org/eye/ontv/index.php	24
John Gerassi, The Boys of Boise: Furor, Vice, and Folly in an American City (1966)	19
vii Richard Godbeer, “The Cry of Sodom”: Discourse, Intercourse, and Desire in Colonial New England*, 3.52 Wm. & Mary Q. 259 (1995)	8
Kirstin Downey Grimsley, Rights Group Rates Gay-Friendly Firms, Wash. Post, Aug. 14, 2002	23
David Halperin, One Hundred Years of Homosexuality (1990)	11
W.L. Howard, Effeminate Men and Masculine Women, N.Y. Med1cal J. 71 (1900)	12
Human Rights Campaign, WorkNet Database, available at http:// www.hrc.org/worknet/dp/index.asp	25
David Johnson, Homosexual Citizens: Washington's Gay Community Confronts the Civil Service, Wash. History, Fall/Winter 1994-95, at 45	16, 17
Mark D. Jordan, The Invention of Sodomy in Christian Theology (1997)	5
Mark D. Jordan, The Silence of Sodom (2000)	5
Jonathan Ned Katz, Gay/Lesbian Almanac (1983)	7
Jonathan Ned Katz, The Invention of Heterosexuality (1995)	11
Elizabeth Lapovsky Kennedy & Madeline Davis, Boots of Leather, Slippers of Gold: The History of a Lesbian Community (1993)	15
Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L. L. Rev. 103 (2000)	28
*viii Lutheran Church in America, Social Statement: Sex, Marriage, and Family (5th Biennial Convention 1970)	22
Gary B. Melton, Public Policy and Private Prejudice, 44 Am. Psychologist 933 (1989)	21
John Murrin, “Things Fearful to Name”: Bestiality in Early America, in American Sexual Histories 17 (Elizabeth Reis ed., 2001)	6, 7
National Gay & Lesbian Taskforce, GLBT Civil Rights Laws in the U.S., available at http://www.ngltf.org.	23
Frank Newport, Gallup Poll News Service, Homosexuality, Sept. 2002, available at http://www.gallup.com/poll	24, 25
Robert F. Oaks, “Things Fearful to Name”: Sodomy and Buggery in Seventeenth-century New England, 12 J. Soc. Hist. 268 (1978)	6
Oral Arg. Tr. of Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)	27
Protestant Episcopal Church, Resolution A-71: Support Right of Homosexual to Equal Protection of the Law (65th Gen. Conv. 1976), in Journal of the General Convention of The Episcopal Church, Minneapolis 1976, at C-109 (1977)	22
Stephanie R. Reiss, Meghan Wharton & Joanne Romero, Child Custody and Visitation, 1 Geo. J. Gender & Law 383 (2002)	25
Resolution of the American Psychiatric Association, Dec. 15, 1973	21
*ix Resolution of the Council of Representatives of the American Psychological Association, 30 Am. Psychologist 633 (1975)	21
W.C. Rivers, A New Male Homosexual Trait (?), Alienist & Neurologist 41 (1920)	12
Charles Rosenberg & Carroll Smith-Rosenberg, The Female Animal: Medical and Biological Views of Women, 60 J. Am. Hist. 332 (1973)	12
Vito Russo, The Celluloid Closet: Homosexuality in the Movies (1991)	15
Jane S. Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoption, 75 Chi.-Kent L. Rev. 933 (2000)	26
James A. Schnur, Closet Crusaders: The Johns Committee and Homophobia, 1956-1965, in Carryin' on in the Lesbian and Gay South (John Howard ed., 1997)	20
S. Rep. No. 241 (1950)	15, 16
Siobhan Somerville, Scientific Racism and the Invention of the Homosexual Body, in Queer Studies 241 (Beemyn & Eliason eds., 1996)	13
Marc Stein, City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945-1972, (2000)	18
Thomas Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit (1997)	27
Jennifer Terry, An American Obsession: Science, Medicine, and Homosexuality in Modern Society (1999)	13
*x Union of American Hebrew Congregations, Resolution on “Human Rights of Homosexuals” (54th Gen. Assembly 1977)	22
United Church of Christ, Pronouncement on Civil Liberties Without Discrimination Related to Affectional or Sexual Preference (10th General Synod 1975)	22
United Methodist Church, Revision of “Social Principles” (Gen. Conf. 1972), codified in Book of Discipline of the United Methodist Church ¶ 162H (2000)	22
United Presbyterian Church in the U.S.A., Minutes of the 190th General Assembly (1978)	22
Wayne van der Meide, Legislating Equality: A Review of Laws Affecting Gay, Lesbian, Bisexual, and Transgendered People in the United States (National Gay & Lesbian Taskforce 2000)	23
What's News, Wall St. J., Aug. 14, 2002	25

*1 INTEREST OF THE AMICI CURIAE¹

Amici are professors and scholars who teach and write about history and are knowledgeable about the history of the treatment of lesbians and gay men in America. They are George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda P. Kerber. Various amici have taught, conducted research, and published in the fields of the history of sexual regulation, including the history of sodomy laws; the history of discrimination based on sexuality, race, and gender; and American social and cultural history from the colonial period through the twentieth century. A summary of the qualifications and affiliations of the individual amici is provided in the appendix to this brief. Amici file this brief solely as individuals and not on behalf of the institutions with which they are affiliated.

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici, as historians, do not propose to offer the Court legal doctrine to justify a holding that the Texas Homosexual Conduct Law violates the U.S. Constitution. Rather, amici believe they can best serve the Court by elaborating on two historical propositions important to the legal analysis: (1) no consistent historical practice singles out same-sex behavior as “sodomy” subject to proscription, and (2) the governmental policy of classifying and discriminating against certain citizens on the basis of their homosexual status is an unprecedented project of the twentieth *2 century, which is already being dismantled. The Texas law at issue is an example of such irrational discrimination.

In colonial America, regulation of non-procreative sexual practices - regulation that carried harsh penalties but was rarely enforced - stemmed from Christian religious teachings and reflected the need for procreative sex to increase the population. Colonial sexual regulation included such non-procreative acts as masturbation, and sodomy laws applied equally to male-male, male-female, and human-animal sexual activity. “Sodomy” was not the equivalent of “homosexual conduct.” It was understood as a particular, discrete, act, not as an indication of a person's sexuality or sexual orientation.

Not until the end of the nineteenth century did lawmakers and medical writing recognize sexual “inversion” or what we would today call homosexuality. The phrase “homosexual sodomy” would have been literally incomprehensible to the Framers of the Constitution, for the very concept of homosexuality as a discrete psychological condition and source of personal identity was not available until the late 1800s. The Court in Bowers v. Hardwick misapprehended this history.

Proscriptive laws designed to suppress all forms of non-procreative and non-marital sexual conduct existed through much of the last millennium. Widespread discrimination against a class of people on the basis of their homosexual status developed only in the twentieth century, however, and peaked from the 1930s to the 1960s. Gay men and women were labeled “deviants,” “degenerates,” and “sex criminals” by the medical profession, government officials, and the mass media. The federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees, many state governments prohibited gay people from being served in bars and restaurants, Hollywood prohibited the discussion of gay issues or the appearance of gay or lesbian characters in its films, and many municipalities launched police *3 campaigns to suppress gay life. The authorities worked together to create or reinforce the belief that gay people were an inferior class to be shunned by other Americans. Sodomy laws that exclusively targeted same-sex couples, such as the statute enacted in 1973 in Texas (1973 Tex. Gen. Laws ch. 399, §§ 1, 3), were a development of the last third of the twentieth century and reflect this historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens.

Since the 1960s, however, and especially since the Bowers decision in 1986, official and popular attitudes toward homosexuals have changed, though vestiges of old attitudes - such as the law at issue here - remain. Among other changes, the medical profession no longer stigmatizes homosexuality as a disease, prohibitions on employment of homosexuals have given way to antidiscrimination protections, gay characters have become common in movies and on television, 86 percent of Americans support gay rights legislation, and family law has come to recognize gays and lesbians as part of non-traditional families worthy of recognition. These changes have not gone uncontested, but a large majority of Americans have come to oppose discrimination against lesbians and gay men.

In this case, the Court should construe the Equal Protection Clause and the Due Process Clause with a thorough and nuanced history of the subject in mind.

ARGUMENT

I. BOWERS v. HARDWICK RESTS ON A FUNDAMENTAL MISAPPREHENSION OF THE HISTORY OF SODOMY LAWS

In Bowers v. Hardwick, this Court concluded, by a 5-4 vote, that the Constitution does not confer a fundamental right to engage in “homosexual sodomy.” The majority's conclusion was based, in large measure, on the “ancient roots” of laws prohibiting homosexuals from engaging in acts of consensual *4 sodomy.

478 U.S. 186, 192 (1986). The Court stated that in 1791 “sodomy” “was forbidden by the laws of the original thirteen States,” that in 1868 “all but 5 of the 37 States in the Union had criminal sodomy laws,” and that, “until 196l, all 50 States outlawed sodomy.”

Id. at 192-193. Accordingly, the Court reasoned, the right of homosexuals to engage consensually in the acts that have been labeled “sodomy” is not “deeply rooted in this Nation's history and tradition.”

Id. at 192-194. In a concurring opinion, Chief Justice Burger relied on a similar historical interpretation. In his view, “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization.”

Id. at 196. To consider the right to engage in homosexual sodomy a fundamental right, Chief Justice Burger wrote, “would be to cast aside millennia of moral teaching.”

Id. at 197.

Recent historical scholarship demonstrates the flaws in the historical accounts endorsed by the Court and Chief Justice Burger. We concur with the accounts given of the history of sodomy laws and of their enforcement in colonial America and the United States by the American Civil Liberties Union and the Cato Institute in their amicus briefs. We will not endeavor to replicate their historical accounts here, but we do wish to stress two points about this history.

First, contrary to the Court's assumption in Bowers, sodomy prohibitions have varied enormously in the last millennium (and even since our own colonial era) in their definition of the offense and in their rationalization of its prohibition. The specification of “homosexual sodomy” as a criminal offense does not carry the pedigree of the ages but is almost exclusively an invention of the recent past.

Prohibitions against sodomy are rooted in the teachings of Western Christianity, but those teachings have always been strikingly inconsistent in their definition of the acts encompassed by the term. When the term “sodomy” was first emphasized *5 by medieval Christian theologians in the eleventh century, they applied it inconsistently to a diverse group of non-procreative sexual practices. In subsequent Latin theology, canon law, and confessional practice, the term was notoriously confused with “unnatural acts,” which had a very different origin and ranged even more widely (to include, for example, procreative sexual acts in the wrong position or with contraceptive intent). “Unnatural acts” is the older category, because it comes directly from Paul in Romans 1, but Paul does not associate such acts with (or even mention) the story of Sodom (Genesis 19) and appears not to have considered that story to be concerned with same-sex activity. (Cf. Ezekiel 16:49-50, where the sin of Sodom is the arrogant and inhospitable refusal to share wealth and leisure.)

Later Christian authors did combine Romans 1 with Genesis 19, but they could not agree on what sexual practices were meant by either “unnatural acts” or “sodomy.” For example, in Peter Damian, who around 1050 championed the term “sodomy” as an analogy to “blasphemy,” the “sins of the Sodomites” include solitary masturbation. In Thomas Aquinas, about two centuries later, “unnatural acts” cover every genital contact intended to produce orgasm except penile-vaginal intercourse in an approved position. See Mark D. Jordan, The Invention of Sodomy in Christian Theology 46, 144-145 (1997). Many later Christian writers denied that women could commit sodomy at all; others believed that the defining characteristic of unnatural or sodomitic sex was that it could not result in procreation, regardless of the genders involved. See Mark D. Jordan, The Silence of Sodom 62-71 (2000). In none of these authors does the term “sodomy” refer systematically and exclusively to same-sex conduct. Certainly it was not used consistently through the centuries to condemn that conduct. The restrictive use of the term in the Texas law at issue must itself be regarded as a historically recent innovation.

*6 The English Reformation Parliament of 1533 turned the religious injunction against sodomy into the secular crime of buggery when it made “the detestable and abominable vice of buggery committed with mankind or beast” punishable by death. The English courts interpreted this to apply to sexual intercourse between a human and animal and anal intercourse between a man and woman as well as anal intercourse between two men. See William Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 Iowa L. Rev. 1007, 1012 (1997); Ed Cohen, Legislating the Norm: From Sodomy to Gross Indecency, 88 S. Atlantic Q. 181, 185 (1989).

Colonial American statutes variously drew on the religious and secular traditions and shared their imprecision in the definition of the offense. Variously defining the crime as (the religious) sodomy or (the secular) buggery, they generally proscribed anal sex between men and men, men and women, and humans and animals, but their details and their rationale varied, and the New England colonies penalized a wider range of “carnall knowledge,” including (but by no means limited to) “men lying with men.” Puritan leaders in the New England colonies were especially vigorous in their denunciation of sodomitical sins as contrary to God's will, but their condemnation was also motivated by the pressing need to increase the population and to secure the stability of the family. Thus John Winthrop mused that the main offense of one man hanged in New Haven in 1646 for having engaged in masturbation with numerous youths - not, in other words, for “sodomy” as it is usually understood today - was his “frustratinge of the Ordinance of marriage & the hindringe the generation of mankinde.” See John Murrin, “Things Fearful to Name”: Bestiality in Early America, in American Sexual Histories 17 (Elizabeth Reis ed., 2001); see also Robert F. Oaks, “Things Fearful to Name”: Sodomy and Buggery in Seventeenth-century New England, 12 J. Soc. *7 Hist. 268 (1978); Jonathan Ned Katz, The Age of Sodomitical Sin, 1607-1740, in Gay/Lesbian Almanac 23 (1983).

Another indication that the sodomy statutes were not the equivalent of a statute against “homosexual conduct” is that with one brief exception they applied exclusively to acts performed by men, whether with women, girls, men, boys, or animals, and not to acts committed by two women. Only the New Haven colony penalized “women lying with women,” and this for only ten years. For the entire colonial period we have reports of only two cases involving two women engaged in acts with one another. As one historian notes, both cases “were treated as lewd and lascivious behavior, not as potential crimes against nature.” See Murrin at 15; Katz, Gay/Lesbian Almanac, at 29-30.

Statutes enacted in the early decades after independence followed the English authorities, but by the mid-nineteenth century most statutes defined the offense as a crime against nature rather than as a crime against God. Such statutes were still not the equivalent of a statute proscribing “homosexual conduct.” In 1868, no statute criminalized oral sex, whether between two men, two women, or a man and woman. See William Eskridge, Jr., Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656.

It was only beginning in the 1970s that a handful of States, including Texas, passed legislation specifying homosexual sodomy while decriminalizing heterosexual sodomy. This legislation had no historical precedent, but resulted from a uniquely twentieth-century form of animus directed at homosexuals, which will be detailed in the next section of this brief.

Second, throughout American history, the authorities have rarely enforced statutes prohibiting sodomy, however defined. Even in periods when enforcement increased, it was rare for people to be prosecuted for consensual sexual relations conducted *8 in private, even when the parties were of the same sex. Indeed, records of only about twenty prosecutions and four or five executions have surfaced for the entire colonial period. Even in the New England colonies, whose leaders denounced “sodomy” with far greater regularity and severity than did other colonial leaders and where the offense carried severe sanctions, it was rarely prosecuted. The trial of Nicholas Sension, a married man living in Westhersfield, Connecticut, in 1677, revealed that he had been widely known for soliciting sexual contacts with the town's men and youth for almost forty years but remained widely liked. Likewise, a Baptist minister in New London, Connecticut, was temporarily suspended from the pulpit in 1757 because of his repeatedly soliciting sex with men, but the congregation voted to restore him to the ministry after he publicly repented. They understood his sexual transgressions to be a form of sinful behavior in which anyone could engage and from which anyone could repent, not as a sin worthy of death or the condition of a particular class of people. See Richard Godbeer, “The Cry of Sodom”: Discourse, Intercourse, and Desire in Colonial New England, 3.52 Wm. & Mary Q. 259, 259-260, 275-278 (1995); Eskridge, 1999 U. Ill. L. Rev. at 645; John D'Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 30 (2d ed. 1997).

The relative indifference of the public and the authorities to the crime of sodomy continued in the first century of independence. For instance, only twenty-two men were indicted for sodomy in New York City in the nearly eight decades from 1796 to 1873. D'Emilio & Freedman, Intimate Matters 123. The number of sodomy prosecutions increased sharply in the last two decades of the nineteenth century and in the twentieth century. This was made possible by the decision of many States to criminalize oral intercourse for the first time. But it resulted in large measure from the pressure applied on district attorneys by privately organized and usually religiously inspired anti-vice societies, whose leaders feared that the growing size and *9 complexity of cities had loosened the constraints on sexual conduct and increased the vulnerability of youth and the disadvantaged. The increase in sodomy prosecutions was only one aspect of a general escalation in the policing of sexual activity, which also included stepped-up campaigns against prostitution, venereal disease, and contraception use. Although in this context a growing number of sodomy prosecutions involved adult males who had engaged in consensual relations, most such relations had taken place in semi-public spaces rather than in the privacy of the home, and the great majority of cases continued to involve coercion and/or minor boys or girls. See D'Emilio & Freedman, Intimate Matters 150-156, 202-215; George Chauncey, Gay New York: Gender, Urban Culture, and the Making of The Gay Male World 137-141 (1994); Paul Boyer, Urban Masses and Moral Order in America, 1820-1920 (1978); Eskridge, 1999 U. Ill. L. Rev. at 655-659.

Thus, the majority in Bowers misinterpreted the historical record. Laws singling out sexual (or “sodomitical”) conduct between partners of the same sex for proscription are an invention of our time, not the legacy of “millennia of moral teaching.” And in practice, regulating sodomy has never been a major concern of the state or the public.

When reexamining a prior holding, this Court ordinarily considers “whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Planned Parenthood v. Casey, 505 U.S. 833, 855 (1992). See also Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 574-575 (1993) (Souter, J., concurring in part) (arguing that recent historical scholarship correcting incomplete historical assessments by the Court justifies reexamination of constitutional precedent). Because, in this case, historical scholarship demonstrates that the use of sodomy laws to regulate exclusively same-sex behavior and to restrict *10 homosexuals is a recent invention, this Court should reconsider its earlier opinion in Bowers, which rested on an inaccurate historical assessment. And, at the very least, it should recognize that Texas's singling out of same-sex sodomy for prohibition lacks a significant historical pedigree.

Furthermore, in its analysis of the Equal Protection Clause issue in this case, the Court should recognize what the foregoing history shows: sodomy laws have not only varied in content over time, but have also depended on the kinds of status-based distinctions and shifting justifications that are typical of irrational discrimination. Neither millennia of moral teachings nor the American experience teach any consistent message about which sexual practices between consenting adults should be condemned and why. Rather, the unprecedented enactment in recent decades of sodomy laws that exclusively penalize homosexual conduct is one indication of the growth of a uniquely twentieth-century form of discrimination.

II. DISCRIMINATION ON THE BASIS OF HOMOSEXUAL STATUS WAS AN UNPRECEDENTED DEVELOPMENT OF THE TWENTIETH CENTURY

Over the generations, sodomy legislation proscribed a diverse and inconsistent set of sexual acts engaged in by various combinations of partners. Above all, it regulated conduct in which anyone (or, at certain times and in certain places, any male person) could engage. Only in the late nineteenth century did the idea of the homosexual as a distinct category of person emerge, and only in the twentieth century did the state begin to classify and penalize citizens on the basis of their identity or status as homosexuals. The States began to enact discriminatory measures in the 1920s and 1930s, but such measures and other forms of anti-gay harassment reached a peak in the twenty years following the Second World War, when government agencies systematically discriminated against homosexuals.

*11 The unprecedented decision of Texas and several other states, primarily in the 1970s, to enact sodomy laws singling out “homosexual sodomy” for penalty, is best understood historically in the context of these discriminatory measures. The new sodomy laws essentially recast the historic purpose of such laws, which had been to regulate conduct generally, by adding them to the array of discriminatory measures directed specifically against homosexuals. Such discriminatory measures against homosexuals, although popularly imagined to be longstanding, are in fact not ancient but a unique and relatively short-lived product of the twentieth century.

It was only in the late nineteenth century that the very concept of the homosexual as a distinct category of person developed. The word “homosexual” appeared for the first time in a German pamphlet in 1868, and was introduced to the American lexicon only in 1892. Jonathan Ned Katz, The Invention of Heterosexuality 10 (1995).² As Michel Foucault has famously described this evolution, “the sodomite had been a temporary aberration; the homosexual was now a species.” 1 Michel Foucault, The History of Sexuality 43 (Robert Hurley trans. 1978).

The discriminatory measures we will describe responded to the growing visibility of gay and lesbian subcultures in American cities in the late nineteenth and early twentieth centuries. It should be noted, though, that many Americans responded to gay life with fascination and sympathy. Many people regarded the increasing visibility of gay life as simply one more sign of the growing complexity and freedom from tradition of a burgeoning metropolitan culture. Thousands of New Yorkers attended the drag balls organized by gay men in Harlem in the 1920s and 30s, for instance, and two of the most *12 successful nightclubs in Times Square in 1931 featured openly gay entertainers. See Chauncey, Gay New York 258, 320.

Others regarded the growing visibility of lesbian and gay life with dread. Hostility to homosexuals was sometimes motivated by an underlying uneasiness about the dramatic changes underway in gender roles at the turn of the last century. Conservative physicians initially argued that the homosexual (or “sexual invert”) was characterized as much by his or her violation of conventional gender roles as by specifically sexual interests. At a time when many doctors argued that women should be barred from most jobs because employment would interfere with their ability to bear children, numerous doctors identified women's challenges to the limits placed on their sex as evidence of a medical disorder. Thus doctors explained that “the female possessed of masculine ideas of independence” was a “degenerate” and that “a decided taste and tolerance for cigars, *** [the] dislike and incapacity for needlework *** and some capacity for athletics” were all signs of female “sexual inversion.” George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, Salmagundi, Fall 1982/Winter 1983, at 114, 120-121 (quoting Havelock Ellis, Sexual Inversion (3d rev. ed. 1915); see ibid. (citing W.L. Howard, Effeminate Men and Masculine Women, N.Y. Medical J. 71 (1900)). Similarly, another doctor thought it significant that a male “pervert” “never smoked and never married; [and] was entirely averse to outdoor games.” Id. at 120 (quoting W.C. Rivers, A New Male Homosexual Trait (?), Alienist & Neurologist 41 (1920)). See also Charles Rosenberg & Carroll Smith-Rosenberg, The Female Animal: Medical and Biological Views of Women, 60 J. Am. History 332 (1973).

Such views lost their credibility once public opinion had come to accept significant changes in women's roles in the workplace and political sphere, but doctors continued for several *13 more decades to identify homosexuality per se as a “disease,” “mental defect,” “disorder,” or “degeneration.” Until the American Psychiatric Association removed homosexuality from its list of disorders in 1973, such hostile medical pronouncements provided a powerful source of legitimation to anti-homosexual sentiment, just as medical science had previously legitimized widely held (and subsequently discarded) beliefs about male superiority and white racial superiority. See Chauncey, Salmagundi at 129, 133, 137, 141; Siobhan Somerville, Scientific Racism and the Invention of the Homosexual Body, in Queer Studies 241 (Beemyn & Eliason eds., 1996); D'Emilio & Freedman, Intimate Matters 122, 226; Jennifer Terry, An American Obsession: Science, Medicine, and Homosexuality in Modern Society (1999).

Anti-vice societies organized in the late nineteenth century also opposed the growing visibility of homosexuality, which they regarded as an egregious sign of the loosening of social controls on sexual expression in the cities. They encouraged the police to step up harassment of gay life as simply one more part of their campaigns to shut down dance halls and movie theaters, prohibit the consumption of alcohol and the use of contraceptives, dissuade restaurants from serving an interracial mix of customers, and otherwise impose their vision of the proper social order and sexual morality. As a result of this pressure, the police began using misdemeanor charges, such as disorderly conduct, vagrancy, lewdness, loitering, and so forth to harass homosexuals. These state misdemeanor or municipal offense laws, which carried fewer procedural protections, allowed further harassment of individuals engaged in same-sex intimacy. See D'Emilio & Freedman, Intimate Matters 150-156, 202-215; Chauncey, Gay New York 137-141, 183-186, 197-198, 249-250; Boyer, Urban Masses 191-219.

In some cases, state officials tailored these laws to strengthen the legal regulation of homosexuals. For example, in 1923 *14 the New York State legislature specified for the first time one man's “frequent[ing] or loiter [ing] about any public place soliciting men for the purpose of committing a crime against nature or other lewdness” as a form of disorderly conduct. Chauncey, Gay New York 172. Many more men were arrested and prosecuted under this misdemeanor charge than for sodomy. Between 1923 and 1967, when Mayor John Lindsay ordered the police to stop using entrapment to secure arrests of gay men, more than 50,000 men had been arrested on this charge in New York City alone. George Chauncey, A Gay World, Vibrant and Forgotten, N.Y. Times, June 26, 1994, at El7.

Even this stepped-up policing of gay life fails to anticipate the scale of the discrimination against homosexuals put in place in the twentieth century, especially between the 1930s and 1960s. In the early years of the Great Depression, restrictions on gay life intensified. New regulations curtailed gay people's freedom of association. In New York State, for instance, the State Liquor Authority established after the Repeal of Prohibition issued regulations prohibiting bars, restaurants, cabarets, and other establishments with liquor licenses from employing or serving homosexuals or allowing homosexuals to congregate on their premises. Chauncey, Gay New York 173, 337. The Authority's rationale was that the mere presence of homosexuals made an establishment “disorderly,” and when the courts rejected that argument the Authority began using evidence of unconventional gender behavior or homosexual solicitation gathered by plain-clothes investigators to provide proof of a bar's disorderly character. Id. at 337. Hundreds of bars were closed in the next thirty years in New York City alone. Id. at 339.

Similar regulations were introduced around the country in subsequent years. In California in the 1950s, notes one historian, the Alcoholic Beverage Control Board “collapsed the difference between homosexual status (a state of being) and conduct (behavior) and suggested that any behavior that *15 signified homosexual status could be construed as an illegal act. Simple acts such as random touching, mannish attire (in the case of lesbians), limp wrists, high pitched voices, and/or tight clothing (in the case of gay men) became evidence of a bar's dubious character” and grounds for closing it. Nan Alamilla Boyd, Wide Open Town: A History of Queer San Francisco (forthcoming 2003) (manuscript at 159). For similar policies elsewhere, see, e.g., Elizabeth Lapovsky Kennedy & Madeline Davis, Boots of Leather, Slippers of Gold: The History of a Lesbian Community 145-146 (1993).

Other regulations curtailed gay people's freedom of speech and the freedom of all Americans to discuss gay issues. The Hollywood studios, under pressure from a censorship movement led by religious (primarily Catholic) leaders, established a production code that from 1934 on prohibited the inclusion of gay or lesbian characters, discussion of homosexual issues, or even the “inference” of “sex perversion” in Hollywood films. This censorship code remained in effect for some thirty years and effectively prohibited the discussion of homosexuality in the most important medium of the mid-twentieth century. See Chauncey, Gay New York 353 & n.57. See generally Gregory Black, The Catholic Crusade Against the Movies, 1940-1975 (1997); Gregory D. Black, Hollywood Censored: Morality Codes, Catholics, and the Movies (1994); Vito Russo, The Celluloid Closet: Homosexuality in the Movies (1991).

The persecution of gay men and lesbians dramatically increased at every level of government after the Second World War. In 1950, following Senator Joseph McCarthy's denunciation of the employment of gay persons in the State Department, the Senate conducted a special investigation into “the employment of homosexuals and other sex perverts in government.” S. Rep. No. 241 (1950). The Senate Committee recommended excluding gay men and lesbians from all government service *16 because homosexual acts violated the law. Id. at 3. The Committee also cited the general belief that “those who engage in overt acts of perversion lack the emotional stability of normal persons,” id. at 4, and that homosexuals “constitute security risks,” id. at 5.³ It also portrayed homosexuals as predators: “[T]he presence of a sex pervert in a Government agency tends to have a corrosive influence on his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices. This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. *** One homosexual can pollute a Government office.” Id. at 4.

The Senate investigation and report were only one part of a massive anti-homosexual campaign launched by the federal government after the war. The Senate Committee reported that “[a] spot check of the records of the Civil Service Commission indicates that between January 1, 1947, and August 1, 1950, approximately 1,700 applicants for Federal positions were denied employment because they had a record of homosexuality or other sex perversion.” S. Rep. 241 at 9. In 1953, President Eisenhower issued an executive order requiring the discharge of homosexual employees from federal employment, civilian or military. John D'Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the *17 United States, 1940-1970, at 44 (1983). Thousands of men and women were discharged or forced to resign from civilian and military positions because they were suspected of being gay or lesbian. Ibid.; Robert D. Dean, Imperial Brotherhood: Gender and the Making of Cold War Foreign Policy (2001).

In addition, President Eisenhower's executive order required defense contractors and other private corporations with federal contracts to ferret out and discharge their homosexual employees. David Johnson, Homosexual Citizens: Washington's Gay Community Confronts the Civil Service, Wash. History, Fall/Winter 1994-95, at 45, 53. “Other private industries adopted the policies of the federal government *** even though they had no direct federal contracts.” Ibid. Furthermore, the FBI initiated a widespread system of surveillance to enforce the executive order. As one historian has noted, “The FBI sought out friendly vice squad officers who supplied arrest records on morals charges, regardless of whether convictions had ensued. Regional FBI officers gathered data on gay bars, compiled lists of other places frequented by homosexuals, and clipped press articles that provided information about the gay world. *** Federal investigators engaged in more than fact-finding; they also exhibited considerable zeal in using information they collected.” D'Emilio, Sexual Politics, Sexual Communities 46-47.

The official harassment of homosexuals received further legitimation from a series of press and police campaigns in the 1930s, 1940s, and 1950s that fomented demonic stereotypes of homosexuals as child molesters. “Despite the lack of evidence that the incidence of rape, child murder, or minor sex offenses had increased,” these press campaigns “led to demands that the state crack down on sex crimes.” Estelle Freedman, “Uncontrolled Desires”: The Response to the Sexual Psychopath, 1920-1960, 74 J. Am. History 83, 92 (1987). See also George *18 Chauncey, The Postwar Sex Crime Panic, in True Stories from the American Past 172 (William Graebner ed., 1993). “The majority of cases of child ‘sex murders' reported by the press involved men attacking girls. But *** numerous articles warned that in breaking with social convention to the extent necessary to engage in homosexual behavior, a man had demonstrated the refusal to adjust to social norms that was the hallmark of the psychopath ***.” Chauncey, Gay New York 359. “As a result of such press campaigns, the long-standing public image of the queer as an effeminate fairy whom one might ridicule but had no reason to fear was supplemented by the more ominous image of the queer as a psychopathic child molester capable of committing the most unspeakable crimes against children.” Id. at 359-360.

The new demonic stereotypes of homosexuals were used to justify draconian legislation. See Chauncey, Sex Crime Panic at 169, 171. In response to the public hysteria incited by such press campaigns, more than half the state legislatures enacted laws allowing the police to force persons who were convicted of certain sexual offenses, including sodomy - or, in some States, merely suspected of being “sexual deviants” - to undergo psychiatric examinations. The examinations could result in indeterminate civil confinements for individuals deemed in need of a “cure” for their homosexual “pathology.” See Freedman, 74 J. Am. History at 95-98; Chauncey, Sex Crime Panic at 166-167, 177; Marc Stein, City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945-1972, at 124-125 (2000).

The government campaign against lesbians and gay men was waged at the local level as well. “The labeling of homosexuals as moral perverts and national security risks, along with the repressive policies of the federal government, encouraged local police forces across the country to harass them with impunity.” D'Emilio & Freedman, Intimate Matters *19 293. In the decade following World War II, the police departments of numerous cities stepped up their raids on bars and private parties attended by gay and lesbian persons, and made thousands of arrests for “disorderly conduct.” “Arrests were substantial in many cities. In the District of Columbia they topped 1,000 per year during the early 1950s; in Philadelphia, misdemeanor charges against lesbians and homosexuals averaged 100 per month. *** New York, New Orleans, Dallas, San Francisco and Baltimore were among the cities that witnessed sudden upsurges in police action against homosexuals and lesbians in the 1950s.” John D'Emilio, The Homosexual Menace: The Politics of Sexuality in Cold War America, in Passion and Power: Sexuality in History 231 (Peiss & Simmons eds., 1989).

In some parts of the country, hostility to gay men approached hysteria. In 1955, for example, there was an extensive investigation of gay men in Boise, Idaho. Fourteen hundred people were interrogated and coerced into identifying the names of other gay residents. D'Emilio, Sexual Politics, Sexual Communities 51; John Gerassi, The Boys of Boise: Furor, Vice, and Folly in an American City (1966).

Countless state employees, teachers, hospital workers, and others lost their jobs as a result of official policy. Beginning in 1958, for instance, the Florida Legislative Investigation Committee, which had been established by the legislature in 1956 to investigate and discredit civil rights activists, turned its attention to homosexuals working in the State's universities and public schools. Its initial investigation of the University of Florida resulted in the dismissal of fourteen faculty and staff members, and in the next five years it interrogated some 320 suspected gay men and lesbians. It “pressured countless others into relinquishing their teaching positions, and had many students quietly removed from state universities.” Stacy Braukman, “Nothing Else Matters But Sex”: Cold War Narra *20 tives of Deviance and the Search for Lesbian Teachers in Florida, 1959-1963, 27 Feminist Studies 553, 555 (2001); see also id. at 553-557, 573 & n.3. Its 1959 report to the legislature called the extent of homosexual activity in the State's school system “absolutely appalling.” Id. at 561. See also James A. Schnur, Closet Crusaders: The Johns Committee and Homophobia, 1956-1965, in Carryin' on in the Lesbian and Gay South 132-163 (John Howard ed., 1997).

Lesbians, gay men, and their supporters challenged police harassment and state discrimination throughout this period, but with little success before the 1960s and 1970s. Through much of the twentieth century, gay men and lesbians suffered under the weight of medical theories that treated their desires as a disorder, penal laws that condemned their sexual behavior as a crime, and federal policies and state regulations that discriminated against them on the basis of their homosexual status. These state practices and ideological messages worked together to create or reinforce the belief that gay persons were an inferior class to be shunned by other Americans. Such forms of discrimination, harassment, and stigmatization were so pervasive and well established by the 1960s that it was widely imagined that they were the inevitable “residue of an age-old, unchanging social antipathy toward homosexuality.” Chauncey, Gay New York 355. But recent historical scholarship tells a different story. Discrimination on the basis of homosexual status was a powerful but unprecedented development of the twentieth century. Public conceptions and attitudes had changed, and they would change again.

III. TOLERANCE TOWARD HOMOSEXUALS HAS INCREASED, RESULTING IN ACCEPTANCE BY MANY, BUT NOT ALL, MAINSTREAM INSTITUTIONS

Since the 1960s, official and popular attitudes toward homosexuals have changed significantly, with a dramatic attitudinal *21 shift since Bowers was decided in 1986. Homosexuality remains a contentious moral and political issue and we still live with the legacy of the many discriminatory measures put in place between the 1930s and 1960s, but a significant number of those measures have been repealed in recent years as large segments of the American public have become more understanding and accepting of lesbians and gay men.

The widespread consensus in the first half of the twentieth century that homosexuality was pathological and dangerous has given way, with growing numbers of expert and ordinary Americans regarding it as a normal and benign variation of human sexuality. Major institutions that once helped legitimize anti-gay hysteria have changed their positions. Medical writers and mental health professionals whose stigmatization of homosexuality as a disease or disorder had been used to justify discrimination for decades - as discussed in Part II above - were among the first to change their views. In 1973, the American Psychiatric Association voted to remove homosexuality from its list of mental disorders. Gary B. Melton, Public Policy and Private Prejudice, 44 Am. Psychologist 933, app. A, at 936 (1989) (citing Resolution of the American Psychiatric Association, Dec. 15, 1973). The American Psychological Association and the American Medical Association soon followed suit. See Resolution of the Council of Representatives of the American Psychological Association, 30 Am. Psychologist 633 (1975).

Religious attitudes toward homosexuals and homosexuality also began to change. The place of lesbians and gay men in religious life is still vigorously debated, but since the 1970s many mainline Protestant denominations have issued official statements condemning legal discrimination against homosexuals and affirming that homosexuals ought to enjoy equal protection under criminal and civil law. Several of these groups descended from the historically influential denominations whose *22 religious authority had been invoked to justify colonial statutes against sodomy. Early statements include those by the Lutheran Church in America (1970), the Unitarian Universalist Association (1970), the United Methodist Church (1972), the United Church of Christ (1975), the Protestant Episcopal Church (1976), the Disciples of Christ (1977), the United Presbyterian Church in the U.S.A. (1978), and the American Lutheran Church (1980).⁴

The federal government, which once prohibited the employment of homosexuals, now prohibits its agencies from discriminating against them in employment. The U.S. Civil Service Commission lifted its ban on the employment of gay men and lesbians in 1975. D'Emilio & Freedman, Intimate *23 Matters 324. President Clinton signed executive orders banning discrimination in the federal workplace on the basis of sexual orientation, Exec. Order No. 13,087, 63 Fed. Reg. 30,097 (May 28, 1998), and barring the use of sexual orientation as a criterion for determining security clearance, Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 2, 1995). Hundreds of companies have adopted similar measures. A survey of 319 of America's largest companies found that approximately “92 percent of the firms surveyed prohibit workplace discrimination against gays and lesbians.” Kirstin Downey Grimsley, Rights Group Rates Gay-Friendly Firms, Wash. Post, Aug. 14, 2002.

A substantial number of States and cities have prohibited discrimination based on sexual orientation. Thirteen States, eleven of them since 1990, and the District of Columbia have passed laws banning discrimination on the basis of sexual orientation.⁵ National Gay & Lesbian Taskforce, GLBT Civil Rights Laws in the U.S., available at http://www.ngltf.org. More than 140 cities have similarly acted to prohibit discrimination based on sexual orientation. Wayne van der Meide, Legislating Equality: A Review of Laws Affecting Gay, Lesbian, Bisexual, and Transgendered People in the United States (National Gay & Lesbian Taskforce 2000).

With the lifting of censorship and the growing interest in gay people and issues, there has been a dramatic increase in the coverage of gay issues in the media and in the number of gay characters in the movies and on television. “In Hollywood, Tom *24 Hanks received an Oscar for portraying a gay man with AIDS and then thanked his gay high school drama teacher before a worldwide viewing audience.” D'Emilio & Freedman, Intimate Matters 368. One of the most popular television series of the last several years, Will & Grace (NBC), features two gay characters in leading roles, and 28 other series in the 2001-2002 season featured major gay or lesbian characters. See Gay & Lesbian Alliance Against Defamation, Where We Are on TV, available at http:// www.glaad.org/eve/ontv/index.php. This has dramatically changed the dominant representation of homosexuals. Gay people usually appeared in the media in the 1950s only as shadowy and dangerous figures, as discussed in Part II above, but they now appear as a diverse and familiar group whose all-too-human struggles and pleasures draw the interest of large viewing audiences.

It is not only in the media that heterosexuals see homosexuals. The growing openness of lesbians and gay men about their sexual orientation since the 1970s has had a tremendous impact on their relatives, friends, neighbors, and co-workers. Growing numbers of heterosexuals realize that some of the people they most love and respect are gay. “Anywhere from half to three quarters of Americans know someone who is homosexual ***.” Frank Newport, Gallup Poll News Service, Homosexuality, Sept. 2002, available at http://www.gallup.com/poll. As a result, acceptance of gays has increased. See Joan Biskupic, For Gays, Tolerance Translates To Rights, Wash. Post, Nov. 5, 1999 (“The prevailing national sentiment *** is one of tolerance toward sexual variation.”).

Even those who are hostile to or made uneasy by homosexuality are against discrimination and intolerance. A 2002 Gallup Poll found that, while 44 percent of the people said homosexuality was unacceptable, 86 percent of those surveyed said homosexuals should have equal rights in terms of job opportunities. Newport, Gallup Poll, supra. Only 56 percent of *25 Americans supported gay rights legislation in 1977. The figure jumped to 83 percent in 1989, and increased to 86 percent in 2002. Ibid.

A growing number of businesses, universities, and state and municipal governments have recognized that many gay people are members of families and share the same family responsibilities other Americans do. More than 5,389 companies now offer health insurance and other benefits to the same-sex domestic partners of their employees, as do 151 state or local governments. Only four companies and three governmental units did so in 1986. Human Rights Campaign, WorkNet Database, available at http:// www.hrc.org/worknet/dp/index.asp. More than two-thirds of the Nation's largest companies offer health benefits to same-sex partners, What's News, Wall St. J., Aug. 14, 2002, including Coca-Cola and the big three automakers, Business Brief, Wall St. J., June 23, 2000. President Bush recently signed legislation - named after one of the gay heroes of September 11, 2001 - allowing death benefits to be paid to the domestic partners of firefighters and police officers who die in the line of duty. Mychal Judge Police & Fire Chaplains Public Safety Officers' Benefit Act of 2002, Pub. L. No. 107-196, 116 Stat. 719 (June 24, 2002).

Gay men and lesbians who parent together or as individuals have also become more numerous and visible. This has led to greater familiarity with and acceptance of gay parents. The experience of family courts that consider the best interests of individual children is revealing. Over the several decades in which courts have considered the rights of gay, lesbian, and bisexual parents, experience has led the vast majority of States to adopt custody standards that are neutral as to sexual orientation. Stephanie R. Reiss, Meghan Wharton & Joanne Romero, Child Custody and Visitation, 1 Geo.J.Gender & Law 383, 392-397 (2000); see, e.g., Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Dist. Ct. App. 2000). Acceptance has increased in part because research *26 studies have led numerous influential medical and mental health groups, including the American Academy of Pediatrics, to endorse nondiscriminatory standards. American Academy of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 Pediatrics 341 (2002). Florida's ban on adoption by gay individuals, Fla. Stat. Ann. § 63.042 (West 2001), is the only one of its kind. Courts in almost half the States have allowed second-parent adoptions by gay and lesbian partners, and this mechanism is also part of the Uniform Adoption Act. Jane S. Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoption, 75 Chi.-Kent L. Rev. 933, 934 (2000); see, e.g., In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002). In gay families in which there was no second-parent adoption but there was a clear agreement jointly to parent that the parties fulfilled, many courts have allowed the second parent to secure custody or visitation rights, see, e.g., Gestl v. Frederick, 133 Md. App. 216, 754 A.2d 1087 (2000), and held them to corresponding child support obligations. L.S.K. v. H.A.N., 2002 WL 31819231 (Pa. Super. Dec. 17, 2002).

In short, there are many indications that in the last generation, and especially in the last decade, the acceptance of lesbians and gay men as full and equal members of our society has become commonplace. The growing openness of gay people and the lessening of discrimination against them have not gone unchallenged, however. Their growing visibility and acceptance have prompted a sharp reaction by some groups, just as the gains of the black civil rights movement did in the 1950s and 1960s.

The defenders of the popular prejudice of any particular age, lacking any recognizably rational basis for the distinctions they draw, often resort to claiming they are endorsed by millennia *27 of moral teaching.⁶ They also distort the meaning of equal protection of the laws. When the opponents of a proposed open housing law in Detroit organized a successful voter initiative against it in 1964, for instance, they argued that such anti-discrimination measures conferred “special privileges” on African-Americans. Thomas Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit 227 (1997). Opponents of laws prohibiting discrimination on the basis of sexual orientation have advanced a similar claim. John Gallagher & Chris Bull, Perfect Enemies: The Battle Between the Religious Right and the Gay Movement 111-114 (1996).

Since the 1970s, national organizations advocating “traditional family values” have paid increasing attention to the issue of gay fights and many local groups have organized to fight gay rights ordinances. In 1977, singer Anita Bryant declared that her Baptist faith moved her to lead a successful campaign to rescind a gay rights ordinance that had been passed in Dade County, *28 Florida. See, e.g., Dudley Clendinen & Adam Nagourney, Out for Good: The Struggle to Build a Gay Rights Movement in America 292 (1999). In the next twenty years, scores of referenda were initiated to overturn such laws, almost four-fifths of them successful. Gallagher & Bull, Perfect Enemies 16-20, 39-62, 97-124, 173-187; William N. Eskridge, Jr., Gaylaw: Challenging the Apartheid of The Closet 131-132 (1999). One well-known example is Colorado's Amendment 2. In response to local ordinances banning discrimination on the basis of sexual orientation, the voters of Colorado adopted a referendum amending the state constitution to prohibit legislative, executive, or judicial action protecting gay men and lesbians. Romer v. Evans, 517 U.S. 620, 623-624 (1996). This Court determined that the Colorado amendment violated the Equal Protection Clause.

Additionally, laws permitting overt intolerance and discrimination against homosexuals, including same-sex sodomy laws in a handful of States, remain in force, with severe consequences for people's lives and livelihoods. For example, a review of twenty surveys conducted across America between 1980 and 1991 showed that between 16 and 44 percent of gay men and lesbians had experienced discrimination in employment. Employment Discrimination on the Basis of Sexual Orientation: Hearings on S. 2238 Before the Senate Comm. on Labor and Human Resources, 103d Cong., 2d Sess. 70 (1994) (statement of Anthony P. Carnevale, Chair, National Commission for Employment Policy). Cheryl Summerville's separation notice from Cracker Barrel read: “This employee is being terminated due to violation of company policy. This employee is gay.” Id. at 6. Labeling gay people criminals - as same-sex sodomy laws do - also leads to the imposition of many legal disabilities “because the law permits differential treatment of criminals.” Christopher R. Leslie, Creating Criminals: The Injuries Inflicted by “Unenforced” Sodomy Laws, 35 Harv. C.R.-C.L.L. Rev. 103, 115 (2000). Some - but by no means all *29 - of the most important disabilities arise in parents' efforts to maintain relationships with their children. See, e.g., Bottoms v. Bottoms, 457 S.E.2d 102, 108 (Va. 1995) (although “a lesbian mother is not per se an unfit parent [,] *** [c]onduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth ***; thus, that conduct is another important consideration in determining custody”).

We ask the Court to consider the findings of recent historical scholarship on the history of sexual regulation, sodomy prohibitions, and anti-gay discrimination as it considers this case. In our judgment as historians, the lessons of this history are clear. The history of antigay discrimination is short, not millennial. In early American history, “sodomy” was indeed condemned, but the concept of “the homosexual” and the notion of singling out “homosexual sodomy” for condemnation were foreign. Through most of our Nation's history, sodomy laws prohibited some forms of same-sex conduct only as one aspect of a more general (and historically variable) prohibition.

It was only in the twentieth century that the government began to classify and discriminate against certain of its citizens on the basis of their homosexual status. An array of discriminatory laws and regulations targeting lesbians and gay men were put in place in a relatively short period of time. In recent years, a decisive majority of Americans have recognized such measures for what they are - discrimination that offends the principles of our Nation - yet a number of them remain in place. The 1973 Texas Homosexual Conduct Law at issue is an example of such discriminatory laws. They hold no legitimate place in our Nation's traditions.

*30 CONCLUSION

The judgment of the court of appeals should be reversed.

George Chauncey is Professor of History at the University of Chicago. He is the author of Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994), which won the Merle Curti Award for the best book in American social history and the Frederick Jackson Turner Award for the best first book in any field of American history from the Organization of American Historians, as well as the Los Angeles Times Book Prize and the Lambda Literary Award. He is co-editor of Hidden From History: Reclaiming the Gay and Lesbian Past (1989), Gender Histories and Heresies (1992), and Thinking Sexuality Transnationally (1999).

Nancy F. Cott is the Jonathan Trumbull Professor of American History at Harvard University, and the Pforzheimer Family Foundation Director of the Schlesinger Library on the History of Women in America at the Radcliffe Institute for Advanced Study. From 1975 to 2001 she taught at Yale University, where she co-founded the Women's Studies Program and chaired that program from 1980 to 1987. She chaired the American Studies Program from 1994 to 1997. Her books include The Bonds of Womanhood: “Woman's Sphere” in New England, 1780-1835 (1977) and Public Vows: A History of Marriage and the Nation (2000). Her articles have appeared in American Historical Review, Journal of American History, Journal of Social History, Yale Review, and American Quarterly.

John D'Emilio is Professor of History and director of the Gender & Women's Studies Program at the University of Illinois, Chicago. He is the author or editor of numerous books including Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940-1970 (1983); Intimate Matters: A History of Sexuality in America (2d ed. 1997) (with Estelle B. Freedman); and The World Turned: Essays on Gay History, Politics, and Culture (2002).

Estelle B. Freedman is the Edgar E. Robinson Professor of U.S. History at Stanford University, where she co-founded the Program in Feminist Studies. She has written a number of award-winning books including Intimate Matters: A History of Sexuality in America (2d ed. 1997) (with John D'Emilio); No Turning Back: The History of Feminism and the Future of Women (2002); and Maternal Justice: Miriam Van Waters and the Female Reform Tradition (1996).

Thomas C. Holt is the James Westfall Thompson Professor of American and African-American History at the University of Chicago. He was the President of the American Historical Association from 1994 to 1995. His books include The Problem of Race in the 21st Century (2000); The Problem of Freedom: Race, Labor, and Politics in Jamaica and Britain, 1832-1938 (1992); and Black Over White: Negro Political Leadership in South Carolina During Reconstruction (1977). He has been a member of the editorial board of American Historical Review and other journals.

John Howard teaches American history at Kings College, University of London. He is the author of Men Like That: A Southern Queer History (1999). He has edited three books in American gay history and literature, including a collection of historical essays, Carryin' on in the Lesbian and Gay South (1997). He was the inaugural director of the Duke University Center for LGBT Life and has served on the Board of Governors of the American Historical Association's Committee on Lesbian and Gay History.

Lynn Hunt is Eugen Weber Professor of Modern European History at the University of California, Los Angeles. She was President of the American Historical Association in 2002-2003. She is the author of important works on the French Revolution, including Politics, Culture, and Class in the French Revolution (1984) and The Family Romance of the French Revolution (1992). She is also the co-author of Telling the Truth About History (1994) and the editor of Eroticism and the Body Politic (1991) and The Invention of Pornography: Obscenity and the Origins of Modernity (1993). She is co-editor of Human Rights and Revolutions (2000).

Mark D. Jordan is Asa Griggs Candler Professor of Religion at Emory University. Previously, he taught at the University of Notre Dame and at the Pontifical Institute of Medieval Studies in Toronto. He was awarded a Guggenheim Fellowship in 1996 for work on the rhetoric of Christian moral theology. His recent books include The Invention of Sodomy in Christian Theology (1997); The Silence of Sodom: Homosexuality in Modern Catholicism (2000); and The Ethics of Sex (2002).

Elizabeth Lapovsky Kennedy is Professor and Head of Women's Studies at the University of Arizona, with an affiliated appointment in the Departments of Anthropology and History. She was a founding member of Women's Studies at the State University of New York at Buffalo, where she taught for twenty-eight years and served several terms as coordinator of Women's Studies and Chair of the Department of American Studies. Her books include Boots of Leather, Slippers of Gold: The History of a Lesbian Community (1993), which won the Jesse Barnard Award for the best book on women in the field of sociology in 1994, the Ruth Benedict Award for the best book on a gay/lesbian theme in Anthropology in 1994, and a Lambda Literary Award in 1993. She is also co-author of Feminist Scholarship: Kindling in the Groves of Academe (1983).

Linda P. Kerber is Brodbeck Professor of Liberal Arts and Sciences, Professor of History, and Lecturer in the College of Law at the University of Iowa. She is a Fellow of the American Academy of Arts and Letters and Past President of the Organization of American Historians and the American Studies Association. She is the author of No Constitutional Right to be Ladies: Women and the Obligations of Citizenship (1998), which won awards from the American Historical Association for the best book in U.S. legal history and the best book in women's history; Women of the Republic: Intellect and Ideology in Revolutionary America (1980); Toward an Intellectual History of Women (1997); and Federalists in Dissent: Imagery and Ideology in Jeffersonian America (1970).

Footnotes

Pursuant to Rule 37.3 of the Rules of this Court, the parties have consented to the filing of this brief. The parties' letters of consent have been lodged with the Clerk of the Court. Pursuant to Rule 37.6 of the Rules of this Court, amici state that no counsel for a party has written this brief in whole or in part and that no person or entity, other than the amici curiae or their counsel, has made a monetary contribution to the preparation or submission of this brief.

For a detailed philological explication, see David Halperin, One Hundred Years of Homosexuality 15 & n. 155 (1990).

As historian David Johnson noted, however, the Senate Committee “could only uncover one example of a homosexual who was blackmailed into betraying his country, and for that, investigators had to reach back to World War I and beyond America's shores, to a Captain Raedl, chief of the Australian Counterintelligence Service in 1912.” David Johnson, Homosexual Citizens: Washington's Gay Community Confronts the Civil Service, Wash. History, Fall/Winter 1994-95, at 45, 48.

Statements in support of equal legal protection for homosexual persons were also adopted by the Central Conference of American Rabbis and the Union of American Hebrew Congregations as early as 1977. See Lutheran Church in America, Social Statement: Sex, Marriage, and Family (5th Biennial Convention 1970); United Methodist Church, Revision of“Social Principles” (Gen. Conf. 1972), codified in Book of Discipline of the United Methodist Church ¶ 162H (2000); United Church of Christ, Pronouncement on Civil Liberties Without Discrimination Related to Affectional or Sexual Preference (10th General Synod 1975); Protestant Episcopal Church (now Episcopal Church), Resolution A-71: Support Right of Homosexual to Equal Protection of the Law (65th Gen. Conv. 1976), in Journal of the General Convention of The Episcopal Church, Minneapolis 1976, at C-109 (1977); Christian Church (Disciples of Christ), Resolution 7747 (Gen. Assembly 1977); 1 United Presbyterian Church in the U.S.A. (now Presbyterian Church [U.S.A.]), Minutes of the 190th General Assembly 265-266 (1978); American Lutheran Church, Human Sexuality and Sexual Behavior G(5) (10th Gen. Conv. 1980); Central Conference of American Rabbis, Resolution on “Rights of Homosexuals” (88th Ann. Conf. 1977); Union of American Hebrew Congregations, Resolution on “Human Rights of Homosexuals” (54th Gen. Assembly 1977).

Cal. Gov't Code § 12920; Conn. Gen. Stat. § 46a-81c; D.C. Code Ann. §§ 2-1401, 2-1402; Haw. Rev. Stat. §§ 368-1, 368-2;

Md. Ann. Code art. 49B, § 14; Mass. Gen. Laws ch. 151B, §§ 3, 4; Minn. Stat. § 363.12; Nev. Rev. Stat. 613.330; N.H. Rev. Stat. Ann. § 354-A:6; N.J. Stat. Ann. § 10:5-3; 2002 N.Y. Laws Ch. 2 (A.1971); R.I. Gen. Laws § 28-5-2; Vt. Stat. Ann. tit. 21, § 495; Wis. Stat. §§ 11.322, 11.325,

11.36.

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” Loving v. Virginia, 388 U.S. 1, 3 (1967) (quoting trial judge's justification for banishing interracial married couple from Virginia for 25 years as a condition of suspending their criminal sentence under antimiscegenation law, which this Court held unconstitutional). But see Oral Arg. Tr. of Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), quoted in David C. Frederick, Supreme Court and Appellate Advocacy 45-46 (2003) (Solicitor General Cox: “We shall solve the problems as one people, and thus escape the consequences of the sins of the past, only if we act in the spirit of Lincoln's Second Inaugural: without malice, with charity, and perhaps above all, without that spirit of false self-righteousness that enables men who are not themselves without fault to point the finger at their fellows.”).

2.2 Brief Amicus Curiae of the Center for the Original Intent of the Constitution in Support of Respondent 2.2 Brief Amicus Curiae of the Center for the Original Intent of the Constitution in Support of Respondent

2003 WL 674354 (U.S.) (Appellate Brief)

United States Supreme Court Amicus Brief.

John Geddes LAWRENCE and Tyron GARNER, Petitioners,

STATE OF TEXAS, Respondent.

No. 02-102.

February 14, 2003.

On Writ of Certiorari to the Texas Court of Appeals for the Fourteenth District

Brief Amicus Curiae of the Center for the Original Intent of the Constitution in Support of Respondent

Jordan W. Lorence

Joshua W. Carden

Alliance Defense Fund

15333 N. Pima Road

Suite 165

Scottsdale, AZ 85260

(480) 444-0020

Michael P. Farris^*

Center for the Original

Intent of the

Constitution

P.O. Box 1776

Purcellville, VA 20134

(540) 338-1776

*i TABLE OF CONTENTS
TABLE OF AUTHORITIES	iii
INTEREST OF AMICUS IN THIS CASE	1
SUMMARY OF ARGUMENT	2
I. THE HISTORIC AUTHORITY OF THE STATES TO CRIMINALIZE SODOMY IS WELL-SETTLED	3
A. Proscriptions Against Sodomy Have Deep Religious, Political, and Legal Roots	6
B. The History of State Legislation Reveals That Same-Sex Sodomy Was Uniformly Condemned	10
C. The Records of Appellate Courts Do Not Support the Claim That the States Avoided Prosecuting or Condemning Same-Sex Sodomy	14
D. Amici for Petitioners Confuse a General Rule of Evidence with a Constitutional Right	18
E. Nothing in the History or Text of the Equal Protection Clause Supports a Different Result from This Court's Due Process Clause Decision in Bowers v. Hardwick	20
II. THIS COURT SHOULD FOLLOW THE ORIGINAL INTENT OF THE FRAMERS AND DECLINE PETITIONERS' INVITATION TO LEGISLATE FROM THE BENCH	24
*ii A. In a Republic, Laws Are Created Only by Legislatures	24
B. Legislative Trends Do Not Create New Constitutional Rights	26
CONCLUSION	29
APPENDIX	A-1

*iii TABLE OF AUTHORITIES
Cases
Anderson v. State, 20 Tex.App. 312 (1886)	19
Ausman v. Veal, 10 Ind. 355 (May Term 1858)	13
Barnes v. Glen Theater, 501 U.S. 560 (1991)	4
Bartholomew v. Illinois, 104 Ill. 601 (1882)	16
Bowers v. Hardwick, 478 U.S. 186 (1986)	2, 3, 23, 28, 29
Central State University v. American Ass'n of University Professors, 526 U.S. 124 (1999)	22
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)	22
Coburn v. Harvey, 18 Wis. 147 (January Term 1864)	13
Commonwealth v. Poindexter, 118 S.W. 943 (Ky.App. 1909)	16
Commonwealth v. Snow, 111 Mass. 411 (1873)	19
iv Cross v. State,* 17 Tex. Ct. App. 476, 1885 WL 6739 (1885)	24
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952)	27
Eldred v. Ashcroft, 537U.S.186, 123 S.Ct. 769 (2003)	4
Foster v. State, 1 Ohio C.D. 261, 1886 WL 2557 (Ohio Cir. Ct. 1886)	20
Gray v. People, 26 Ill. 344 (1861)	17
Herring v. State, 46 S.E. 876 (Ga. 1904)	16
Hicks v. State, 156 Tenn. 359 (1912)	19
Honselman v. People, 48 N.E. 304 (Ill. 1897)	17, 18, 19, 24
Hutchinson v. State, 24 Tenn. 142 (1844)	16
Int'l Bhd. Of Teamsters, Chauffeurs, Warehousemen and Helpers Union v. Denver Milk Producers Inc., 334 U.S. 809 (1948)	28
v Jones v. State,* 101 S.W. 1012 (Tex. Crim. App. 1907)	19
Kelly v. People, 61 N.E. 425 (Ill. 1901)	16
Medis v. State, 11 S.W. 112 (Tex. Ct.App. 1889)	17, 18
Mercer v. State, 17 Tex. Ct. App. 452 (1885)	17
Oregon v. Mitchell, 400 U.S. 112 (1970)	21
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991)	21
People v. Deschessere, 74 N. Y. Supp. 761 (1902)	18
People v. Hickey, 41 P. 1027.(Cal. 1895)	17
People v. Williams, 59 Cal. 397, 398 (1881)	15
Republic of Hawaii v. Edwards, 11 Haw. 571 (1898)	19
Romer v. Evans, 517 U.S. 620 (1996)	23
vi Roe v. Wade,* 410 U.S. 113 (1973)	27, 28
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973)	22
Stafford's Case, 12 Co. Rep. 36, 77 Eng. 1318 (1607)	6
State v. Carey, 122 P. 868 (Nev. 1912)	18
State v. Gage, 116 N.W. 596 (Iowa 1908)	15, 18
State v. Hull, 26 Iowa 292 (1868)	19
Smith v. State, 234 S.W. 32 (Ark. 1921)	15
Sweenie v. Nebraska, 80 N.W. 815 (Neb. 1899)	15
Territory v. Mahaffrey, 3 Mont. 112 (1878)	19
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)	21
U.S. v. Salerno, 481 U.S. 739 (1997)	28
vii U.S. Term Limits v. Thornton,* 514 U.S. 779 (1995)	4
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)	26
Constitutions
U.S. Const., PMBL	2
Fourteenth Amendment	passim
West Virginia Const., art. XI § 8 (1863)	13
Statutes
1 California, Statutes 1850, ch. 99, § 48	13
1 Digest of Kentucky Statute Law 36 § 8 (Littell & Swigert, eds., Frankfort, KY:Kendall & Russell, 1822)	13
1 Mo. Rev. Stat., ch. 50, Art. VIII, 7 (1856)	14
1 The Revised Statutes of the State of North Carolina, Passed by the General Assembly at the Session of 1836-7 (enacted Oct. 16, 1749)	9, 11
1 Md. Code, Art. 30 (1860)	13, 14
2 Digest of the Statute Laws of Kentucky of a Public and Permanent Nature 1265 § 4 (Frankfort:Albert G. Hodgen, 1834)	13
viii 2 Laws of New York 1777-1789*, ch. XXI (21) (enacted Feb. 14, 1787)	9, 11
2 Statutes of South Carolina (enacted Dec. 12, 1712)	9, 12
5 Eliz., ch. 17 (1562)	7
9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI (enacted May 1776)	9, 12
25 Henry VIII, ch. 6 (1553)	7
Acts and Laws of the State of Vt. (1779)	14
Acts of the General Assembly, ch. DC (600) § 7 (New Jersey) (enacted March 18, 1796)	11, 12
Act of Mar. 31, 1860, 32, Pub. L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, (Purdon 1905)	14
Ala. Rev. Code (1867)	13
Ark. Stat., ch. 51, Art. IV (1858)	13
The Code of Virginia. Second Edition, Including Legislation to the Year 1860 (enacted Mar. 19, 1860)	12
Conn. Gen. Stat., Tit. 122, ch. 7 (1866)	13
Del. Rev. Stat., ch. 131 (1893)	13
A Digest of the Laws of New Jersey 162 § 9 and 161 § 3 (enacted Apr. 16, 1846)	12, 13
ix Fla. Rev. Stat.*, div. 5, (passed 1868) (1892)	13
Ill. Rev. Stat., div. 5, 49, 50 (1845)	13
La. Rev. Stat., Crimes and Offences (1856)	13
Laws of the State of Delaware 1797, ch. 22a § 5 (enacted in 1719)	11
Laws of New Hampshire 1784-1792, ch. 42 (enacted February 8, 1791)	7, 9, 11, 12
Laws of Ore., Crimes - Against Morality, etc., ch. 7, 655 (1874)	14
Laws of South Carolina 1868-1871 175 (enacted Feb. 4, 1869)	12
Maryland Laws, Thomas Sim Lee, Esq., Governor, ch. LVII (57), art 10	11
Mass. Gen. Stat., ch. 165 (1860)	14
Me. Rev. Stat., Tit. XII, ch. 160 (1840)	13
Mich. Rev. Stat., Tit. 30, ch. 158 (1846)	14
Minn. Stat., ch. 96 (1859)	14
Miss. Rev. Code, ch. 64, LII, Art. 238 (1857)	14
N.C. Rev. Code, ch. 34, 6 (1855)	14
Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, (enacted March 3, 1785)	7, 8, 11, 12
x Public Laws of New Hampshire June 1812* 5-6 § 6 (enacted June 19, 1812)	12, 13
Public Laws of the State of Rhode Island and Providence Plantations, 1798, § 8	9, 12
Public Statute Laws Of The State of Connecticut, 1808 tit. LXVI (66), ch. 1 § 2 (enacted Dec. 1, 1642)	7, 8, 11
Revised Statutes of the State of New York (enacted Dec. 10, 1828)	12
R. I. Gen. Stat., ch. 232 (1872)	14
Statutes at Large of Pennsylvania, 1682-1801 vol. 13, (1682-1801), ch.. MDXVI (1516) (enacted Apr. 5, 1790)	12
Tenn. Code, ch. 8, Art. 1, 4843 (1858)	14
Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860)	14
Secondary Authorities
2 The Journal of William Stephens 1743-1745 3 (E. Merton Coulter, ed., Athens, GA: Univ. of Georgia Press, 1958-59)	11
3 Detailed Reports on the Salzburger Emigrants Who Settled in Americe. Edited by Samuel Urlsperger 314 (William H. Brown, trans., Athens,GA: Univ. of Georgia Press, 1972)	11
4 W. Blackstone, Commentaries	6, 7
The Bible, Romans 1:26-27; Romans 9 (K.J.V.)	7, 8
xi The Bible, Leviticus* 18:22 and 20:13	7, 8
Edward Coke, The Third Part of the Institutes of the Laws of England 58-59 (1641)	6
George Washington, The Writings of Washington, John C. Fitzpatrick, ed. (Washington, D.C.: U.S. Government Printing Office, 1932), Vol. XI, from General Orders at Valley Forge on March 14, 1778	10
James Wilson, 2 The Works of James Wilson (1967) (from lectures given in 1790 and 1791)	10
John Locke, Second Treatise on Civil Government (Prometheus Books 1986) (1690)	25, 26
Letter from Thomas Jefferson to Edmund Pendleton dated August 26, 1776	8
The Journal of William Stephens 1743-1745 (E. Merton Coulter, ed., Athens, GA: Univ. of Georgia Press, 1958-59)	11
(Justice) Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375 (1985)	27
(Justice) Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1205 (1992)	27
Thomas Jefferson, Writings 756-57 (Merrill D. Peterson ed., Library Classics of the U.S. 1984)	9

*1 INTEREST OF AMICUS IN THIS CASE^*

The Center for the Original Intent of the Constitution (COIC) operates under the auspices of Patrick Henry College. The COIC contends that the interpretation of the Constitution according to the original intent of the Founders provides the only sure safeguard for the preservation of limited government and individual rights. The *2 COIC exists to systematically research and advocate constitutional interpretation according to the principle of original intent.

Our Founders established a federal government with limited and enumerated powers. The limits on federal power were originally intended to protect both the authority of the states and the liberties of the people.

Our interest is to preserve the blessings of liberty for ourselves and our posterity. U.S. Const. pmbl. We seek to do this by holding the federal government to the terms of our original social contract: the Constitution. Faithful adherence to the original intent of the Founders is essential, not only because of their place in our nation's history, but also because of their position as the elected representatives of the people. We preserve self-government by elevating the written will of those elected officials who wrote and ratified the Constitution over the opinions of unelected judges.

SUMMARY OF ARGUMENT

The central purpose of this brief is to respond to various historical arguments raised in three Amici Curiae briefs filed on behalf of Petitioners by the American Civil Liberties Union (“ACLU Brief”), the Cato Institute (“Cato Brief”), and the Brief of Professors of History (“Historians Brief”).

Contrary to the imaginative arguments contained in these briefs, the history of this country reflects a deep conviction that sodomy is criminally punishable conduct and not a constitutionally protected activity. The history of both state legislation and court decisions support the view adopted by this Court in

Bowers v. Hardwick, 478 U.S. 186 (1986), namely that neither the Bill of Rights nor the Fourteenth Amendment limit the authority of the states to punish homosexual sodomy.

*3 Petitioners' amici inaccurately suggest that there was a de facto rule protecting consensual same-sex sodomy since the early days of the Republic. The proof of this argument is to be found, they contend, in a number of cases where sodomy convictions were reversed because they had been based on nothing more than the testimony of the accomplice-that is, the willing partner in the alleged sexual activity. However, even a cursory review of these cases reveals that the reason for the dismissal was found in a simple rule of evidence that is equally applicable to cases involving horse thieves or perjurers. Many states had the rule that a criminal conviction could not be sustained upon the testimony of an accomplice alone. If the testimony was corroborated, then the conviction could stand. This was a rule of evidence governing all crimes giving no more rise to a claim of constitutional protection for sodomy than it does for horse theft.

The Texas law is grounded on a moral judgment. There is nothing irrational or arbitrary about such a judgment upon which to base a valid Equal Protection claim. Those who wish to legalize sodomy have been quite successful, in the years since Bowers, in in repealing these laws. This Court should decline to constitutionalize an issue that belongs in the state legislatures.

THE HISTORIC AUTHORITY OF THE STATES TO CRIMINALIZE SODOMY IS WELL-SETTLED

The historical evidence clearly shows that state legislatures have always possessed a broad authority to outlaw private, consensual sex, and that they also prohibited same-sex sodomy specifically since the earliest days of American history. Enactment *4 of the Bill of Rights in 1791 and the Fourteenth Amendment in 1868 did not alter that state legislative authority.

This Court has frequently looked to the Constitution's “text, history and precedent” to determine its meaning. Eldred v. Ashcroft, 537 U.S. 186, 123 S.Ct. 769, 777 (2003). As this Court recently reiterated in Eldred v. Ashcroft, “a page of history is worth a volume of logic.” Id., quoting New York Trust Company v. Eisner, 256 U.S. 345, 349 (1921); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 790 (1995) (“Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive.”).

It is a settled constitutional principle within our federal republic that states possess general police powers. Inherent within these powers lies the duty to regulate the “health, safety, and morals” of their members. Barnes v. Glen Theater, 501 U.S. 560, 569 (1991) (referencing public indecency statutes which were designed to protect morals and public order). States have used this police power to promote marriage and direct the sexual activities of their citizens into marriage by criminalizing a wide variety of nonmarital sex acts, such as polygamy, rape, fornication, adultery, prostitution and incest. While crimes such as rape and incest are not consensual, adultery, prostitution, polygamy and fornication are private acts between consenting adults that have been regulated throughout our nation's history. As we shall demonstrate, states have possessed and properly exercised the authority to regulate deviate sexual conduct including sodomy at all relevant times in our nation's history.

The historical briefs filed by Petitioners' Amici Curiae erect numerous straw men by referencing Senator Joseph McCarthy,¹ *5 using phrases like “same-sex couples”² and “Homosexual Conduct Law”,³ and generally discussing everything except the text of the Texas statute at issue.⁴ The Historians Brief, in particular, shines the spotlight on Hollywood (p. 15), employment law (pp. 17, 25), medicine (p. 21), the Senate (pp. 15-16), modern religious denominations (pp. 21-22), child custody (p. 25), and other “recent historical scholarship” (p. 29). We confine our analysis to the sources this Court has consistently employed for constitutional analysis and avoid irrelevant, albeit entertaining, issues like the treatment of homosexuality by Hollywood.

Five arguments from the historical briefs warrant specific refutation: 1) the prohibition of same-sex sodomy is a creation of the recent past with no true roots in historical or religious tradition; 2) there is no historical support for the prohibition of sodomy because statutory language has changed; 3) case law reveals our nation has traditionally protected sodomy between “consenting adults acting privately”; 4) the lack of enforcement of sodomy laws and a “national trend” of liberalization warrant this Court's extension of a fundamental privacy right to same-sex sodomy; and 5) the Equal Protection Clause prohibits the states from banning same-sex sodomy.

*6 A. Proscriptions Against Sodomy Have Deep Religious, Political, and Legal Roots.

Sodomy was considered a heinous crime under common law.⁵ Blackstone's writings are widely recognized as the best embodiment of English common law. His Commentaries were the standard legal textbook in the early days of our nation, and that work was frequently cited by early American courts. In this work, Blackstone discussed the “infamous crime against nature” and referenced the royal edicts prescribing its punishment.⁶ Blackstone *7 described the offense itself as one of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, provided the basis for the original state sodomy laws.

In early America, the Bible served as the source for many criminal laws. Early colonial statutes often quoted the Biblical passages of Leviticus 18:22 (“Thou shalt not tie with mankind as he lieth with womankind; it is an abomination.”) and 20:13 when establishing prohibitions against sodomy.⁷ States not using the Leviticus language referred to prohibited conduct as the. “crime against nature.” The phrase “crime against nature,” which appears in Blackstone's Commentaries and numerous state statutes, harkens back to the Apostle Paul's condemnation in Romans 1:26-27 of those who “change the natural use into that which is against nature,”⁸ as other amici have noted. Historians Brief at 5. However, their brief incorrectly concludes that Paul did not consider the phrase to apply to same-sex behavior. Id.

*8 Contrary to the assertion in the Historians Brief at 5, Paul's lack of reference to Sodom does not negate his condemnation of what we now term sodomy.⁹ The Leviticus prohibition against sodomy made no reference to the destruction of the city of Sodom, but the command was clear nevertheless. Those who drafted early state and colonial laws drew on this Biblical background as the best means to express what was otherwise deemed unspeakable.¹⁰

The Historians Brief at 4, argues that states are “strikingly inconsistent in their definition of the acts encompassed by the term [sodomy].” The Historians Brief at 5. It then proceeds to discuss the variety of definitions for “unnatural acts” presented in “Latin theology, canon law, and confessional practice.” Although the scope of prohibited “unnatural acts” may have varied from generation to generation, until very recent times, same-sex sodomy has been included in virtually every state's list of prohibited sexual acts.

Thomas Jefferson, the primary author of the Declaration of Independence, is one of the Founders who saw no inconsistency between the principles of individual liberty and the state prohibition of sodomy. In a letter to Edmund Pendleton dated August 26, 1776, Jefferson discussed his opinions on proper penalties for criminal activity. At the time of the Revolution, most states punished sodomy by death.¹¹ According to Jefferson, however,

*9 Punishments I know are necessary, & I would provide them, strict & inflexible, but proportioned to the crime. Death might be inflicted for murder & perhaps for treason if you would take out of the description of treason all crimes which are not such in their nature. Rape, buggery &c-punish by castration.¹²

Although Jefferson recommended a different punishment, he still believed that sodomy was a criminal offense.

As commander of the Continental Army in 1778, George Washington dishonorably discharged Lieutenant Enslin for attempting to commit sodomy with another soldier, John Monhort. In his military order, Washington stated his deep disdain for the Crime of sodomy:

His Excellency the Commander in Chief approves the sentence and with abhorrence and detestation of such infamous crimes orders Lieut. Enslin to be drummed out of camp tomorrow *10 morning by all the drummers and fifers in the Army never to return.¹³

James Wilson, both a signer of the Declaration and the Constitution and one of the original Justices of this Court, wrote a commentary on American law. James Wilson, 2 The Works of James Wilson (1967) (from lectures given in 1790 and 1791). When the subject turned to sodomy, Wilson refused even to discuss the details of the act: “The crime not to be named [sodomy], I pass in a total silence.” Id. at 656.

These examples from some of early America's key statesmen demonstrate the cultural atmosphere at the time of our nation's founding. It is clear that none of them ever envisioned a day when the federal Constitution would be used as a tool to overturn the decisions of elected state representatives concerning the punishment of sodomy.

B. The History of State Legislation Reveals That Same-Sex Sodomy Was Uniformly Condemned.

States freely prohibited same-sex sodomy throughout America's history, as well as other nonmarital sexual activity, such as polygamy, adultery, fornication and prostitution. The legislatures perceived no restraint on their power to do this by either the Bill of Rights or the Fourteenth Amendment. Since the passage of these Amendments, state laws have varied, but this fact simply supports the conclusion that this area of law was entirely in the hands of the states. No connection can be established between either the adoption of the Bill of Rights or the Fourteenth Amendment and alterations in sodomy statutes. An examination of *11 the history of sodomy statutes does not lend credence to the contention by several briefs that sodomy statutes were rarely, if ever, enforced following the passage of the Bill of Rights. ACLU Brief at 11, 12; Historians Brief at 7.

At the time of the passage of the Bill of Rights in 1791, ten of the states clearly banned same-sex sodomy. At that time, twelve of the thirteen original states prohibited sodomy either by statute or by their adoption of the English common law.¹⁴ Two of these prohibitions do not explicitly define the crime, but the other ten states specifically prohibited same-sex sodomy. Five of the states banned same-sex sodomy by statute, and the other five prohibited same-sex sodomy because of their adoption of English common law¹⁵ In 1776, for example, Maryland had adopted its Declaration *12 of Rights which incorporated the English common law along with its sodomy prohibition.¹⁶ Six years prior to the passage of the Bill of Rights, Massachusetts enacted a law that prohibited sodomy. The application of that law continued after the ratification of the Bill of Rights.¹⁷ Earlier in the same year the Bill of Rights was ratified, New Hampshire revised its 1679 sodomy law to a same-sex sodomy statute which was still on the books in 1805.¹⁸ Importantly, none of the states viewed the ratification of the Bill of Rights as limiting or removing the power of the legislatures to ban sodomy, including same-sex sodomy.

At the time of the Fourteenth Amendment's ratification, eight states specifically prohibited same-sex sodomy, including five of the original states which retained their earlier sodomy laws.¹⁹ At *13 least two more state courts explicitly applied the same-sex definition of common law sodomy.²⁰ For example, New Hampshire's 1812 same-sex sodomy law remained in effect after 1868, with only the penalty altered.²¹ And New Jersey's prohibition of same-sex sodomy was in force both before and after the ratification of the Fourteenth Amendment.²² At least twenty-two of the remaining states outlawed sodomy, although the definition of the crime also included acts committed by members of the opposite sex.²³ Although sodomy was not universally *14 proscribed, all thirty-one states that prohibited sodomy necessarily included same-sex sodomy in their definitions. No state viewed the Fourteenth Amendment as limiting their authority to enact statutes prohibiting same-sex sodomy.

C. The Records of Appellate Courts Do Not Support the Claim That the States Avoided Prosecuting or Condemning Same-Sex Sodomy.

The historical briefs²⁴ contend that shadows indicating the right of consensual sodomy can be discovered in the fact that enforcement efforts appear to be sparse on the record found in appellate decisions. Several historical and logical fallacies underlie this argument.

First, appellate case law is not the best source for accurate social science research, concerning either current law or more distant history. Generally, many convictions are not appealed.

Second, and more importantly, the amici making this argument, particularly the ACLU, concede that a great majority of the reported cases contain factual situations that they deem *15 “unclear.”²⁵ Reasoning from silence is always dangerous. This is especially true when, as here, there is a documented revulsion which led to a disinclination to discuss the details of these sexual crimes.

The ACLU reads these allegedly “unclear” cases through the skewed vision of twenty-first century Americans who are accustomed to hearing explicit and graphic depictions of sexual activity. Such was not the case in the early days of America, especially if the subject was same-sex sodomy. Cultural values in those times made people, even judges, highly reluctant to record the particular facts of a case involving consensual sodomy.

The lack of explicit factual detail does not indicate any lack of definitional clarity. Sodomy prosecutions were not unknown. In Smith v. State, 150 Ark. 265, 234 S.W. 32, 33 (1921), the court said in one sodomy prosecution, “The evidence is revolting in detail, and it could therefore serve no good purpose to set forth.” Moreover, a nineteenth century state court noted, “Every person of ordinary intelligence understands what the crime against nature with a human being is.”²⁶

Thus, given the reluctance of the courts to provide details, it cannot be said with any certainty that prosecutions for “private sodomy” were out of the ordinary. In fact, some courts expressly indicated that privacy was not a factor in sexual crimes.²⁷ Others *16 equated “sodomy,” or the “crime against nature,” with crimes where consent or privacy were irrelevant.²⁸

Third, amici's assertion that societal approbation for consensual acts of same-sex sodomy can be found in the silence of the appellate records is simply not true. Insofar as appellate courts are the correct measure of societal acceptance of consensual sodomy, it is beyond reasonable dispute that such acts were severely condemned.

In the period immediately following the adoption of the Fourteenth Amendment, appellate court decisions continued to echo the historical revulsion for the act of sodomy and the understanding that consent was no defense. See, e.g., Commonwealth v. Poindexter, 118 S.W. 943, 943 (Ky.App. 1909) (“The acts charged against the appellees are so disgusting that we refrain from copying the indictment in the opinion.”); Herring v. State, 46 S.E. 876, 881-82 (Ga. 1904.) (“After much reflection, we are satisfied that, if the baser form of the abominable and disgusting crime against nature-i.e., by the mouth-had prevailed in the days of the early common law, the courts of England could well have held that that form of the offense was included in the current definition of the crime of sodomy.”); Kelly v. People, 61 N.E. 425, 426 (Ill. 1901) (“We did not say the definition of the crime was ‘generic,’ but did hold that, because of the abominable nature of the crime, it was not necessary to set forth in detail the manner in which it was committed”).

*17 Several appellate court decisions have established that consensual activity was clearly prosecutable, and that the existence of consent served only to differentiate evidence requirements. In the context of a case involving incest, the Texas Court of Appeals quotes an authority which is applied to consensual sodomy:

But alike in adultery and, it is believed, in fornication and in incest, where the crime consists in one's unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not, -just as sodomy may be committed either with a responsible human being, or an irresponsible one, or a beast. [I]t must be considered that in sodomy cases, the question of consent of the party with whom the act is committed, is not a material one. The crime is complete in either case if the act be committed.

Mercer v. State, 17 Tex. Ct. App. 452, 464 (1885) (internal quotation marks omitted).

In Medis v. State, 11 S.W. 112 (Tex.Ct.App. 1889), the Texas appellate court discussed the issue of consent, clarifying that the testimony of a third party would be required if both parties consented to the act. In People v. Hickey, 41 P. 1027 (Cal. 1897) the California appellate court ruled that “it was not an element in the offense where the act is done or attempted with the consent of the other party.” 41 P. at 1028. Consent provided no immunity in a sodomy prosecution.

In Honselman v. People, 48 N.E. 304 (Ill. 1897) the Illinois court ruled that uncorroborated evidence alone, given by a consenting partner, was sufficient to convict both parties of sodomy. Citing Gray v. People, 26 Ill. 344 (1861), concerning the difficulty of proof, the Illinois court stated, “The offense should be clearly proved, but it is one committed in secrecy and ordinarily *18 not capable of being otherwise proved than by the testimony of a participant, and the law is, that the uncorroborated testimony of an accomplice is legally sufficient to sustain a conviction.” Honselman, 48 N.E. at 305. Unlike several other state courts, the Illinois court ruled that corroborating evidence submitted by a third party was not required for the conviction of private, consensual sodomy.

Finally, in State v. Gage, 116 N.W. 596 (Iowa 1908), the Iowa court ruled that either third-party testimony or circumstantial evidence of penetration would be sufficient for conviction in a sodomy case. Once again, we see an example of state courts applying sodomy statutes to private, consensual activity. Although some states had higher evidence requirements for conviction, all states cited above clearly held consensual sodomy to be criminally actionable.

D. Amici for Petitioners Confuse a General Rule of Evidence with a Constitutional Right.

The Cato Brief places significant weight on a rule of evidence which supposedly created a de facto “immunity for sodomy within the home between consenting adults.” Cato Brief at 11. Some states have or had a general rule of evidence that the uncorroborated testimony of one accomplice was not sufficient evidence for conviction.²⁹ This rule applied to crimes generally, not just sodomy or other sexual crimes where notions of privacy *19 might arguably play some role.³⁰ From this rule, the Cato Brief illogically derives the principle that any action between consenting adults within the home was immune from prosecution merely because the testimony of one partner was insufficient evidence.

Even if this were an accurate statement, it would be improper to infer a quasi-constitutional rule of privacy from a mere rule of evidence that was intended to ensure the truth of courtroom testimony, see e.g. Hicks v. State, 156 Tenn. 359 (1912) (explaining accomplice rules). There are many cases in which convictions were upheld when there was evidence beyond that supplied by the accomplice.³¹

The requirement of corroborating testimony was not a rule of common law. Several state courts explicitly refused to follow the rule in absence of a statutory provision See, e.g., Republic of Hawaii v. Edwards, 11 Haw. 571 (1898) (“no statute in Hawaii requires that on a charge of sodomy, the testimony of an accomplice should be corroborated by other evidence”); Honselman v. Illinois, 48 N.E. 304 (Ill. 1897) (“the law is that the uncorroborated testimony of an accomplice is legally sufficient to sustain a conviction”).

*20 Moreover, none of the cases cited by the amici regarded consent as an affirmative defense to the charge.³² The Cato Brief's “consent” argument deduces incorrectly that the primary function of the sodomy laws prior to this century was “filling a regulatory gap as regards non-consensual sexual activity.” Cato Brief at 11. Carrying this argument to its logical extreme, their rationale would lead to the conclusion that the Framers also intended the Bill of Rights and the Fourteenth Amendment to prohibit laws against fornication or adultery because those laws forbid private, consensual sex. This is ludicrous. No objective reader of fornication or adultery statutes can conclude that “consent” was a mitigating factor or defense for the crime. Rape statutes provided sufficient grounds for the prosecution of “non-consensual” sex. The evidence indicates that adultery, fornication, and sodomy statutes served the additional purpose of preserving the moral and legal standard that sex was reserved for traditional marriage.

E. Nothing in the History or Text of the Equal Protection Clause Supports a Different Result from This Court's Due Process Clause Decision in Bowers v. Hardwick.

A new law is usually intended to change an old law. This is just as true with regard to constitutional amendments as it is with ordinary legislation, with one critical exception. The Bill of Rights was designed to preserve the rights which the founding generation considered to be their natural inheritance.

Thus, the Framers of the Bill of Rights did not purport to “create” rights. “Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties *21 presumed to be pre-existing.” United States v. Verdugo-Urquidez, 494 U.S. 259, 288 (1990) (Brennan, J., dissenting). “The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors.” T. Cooley, Constitutional Limitations, ch. X (4th ed. 1878), quoted in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 34 (1991) (Scalia, J., concurring).

However, the Fourteenth Amendment, like the Thirteenth and Fifteenth, was intended to change the law. The core purpose of the Fourteenth Amendment was to overturn those state laws that failed to guarantee equal protection and due process to black Americans. This Court's “suspect classification” doctrine closely approximates this intention. With regard to race, all laws existing at the time of the ratification of the Amendment should have been considered presumptively unconstitutional. While this Court has built a complex system of suspect, intermediate, and rational classifications for Equal Protection analysis, it has never held that the Equal Protection Clause was designed to eliminate all state laws which make distinctions between people and their conduct.

The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection. Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people. On the other hand, the Civil War Amendments were unquestionably designed to condemn and forbid every distinction, however trifling, on account of race.

Oregon v. Mitchell, 400 U.S. 112, 127 1970)(opinion of Black, J.).

*22 This Court has been reluctant to expand the “suspect classification” to include every group seeking the protection of this constitutional status. See, e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (wealth is not a suspect class); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (mental retardation is not a “quasi-suspect” classification). Lawyers lack no diligence in mining the phrases employed by this Court over the decades when endeavoring to argue that their clients should be included in this or another “protected” category. It is the words and phrases of the Framers of the Fourteenth Amendment that must be dispositive if the principle of republicanism-we elect the rulers who make the law-is to retain any meaning.

The essence of the Equal Protection Clause prohibits arbitrary treatment of people. See, e.g., Central State University v. American Ass'n of University Professors, 526 U.S. 124, 129 (1999) (Ginsburg, J., concurring). Racial discrimination is presumptively arbitrary. But any arbitrary, irrational treatment of people is prohibited. The debate about classifications and levels of scrutiny at times obscures reality; it is only arbitrariness that can possibly explain the outcomes of this Court's Equal Protection jurisprudence. Distinctions based on time-honored standards of law should be accorded some deference, but in the end arbitrary classifications cannot stand.

Texas outlawed same-sex sodomy because it views the practice as immoral. Petitioners' Opening Brief at 37. As this brief fully documents, this position is absolutely consistent with the time-honored traditions of this nation. Unless this Court is prepared to say that the moral traditions of this nation and western civilization are categorically arbitrary, it must affirm the decision below.

*23 This Court has already settled this crucial question in Bowers. “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”

478 U.S. 186, 196 (1986). It cannot be seriously contended that there is a difference between the Due Process Clause and the Equal Protection Clause insofar as these clauses affect the ability of a state to base its law on moral judgments.

Romer v. Evans, 517 U.S. 620 (1996), has done nothing to change this principle. Romer is based on the principle that no group should be limited in its ability to employ the political process for its own protection. Romer is fundamentally about political rights, not homosexual rights. States are still free to enact whatever moral judgments they wish regarding homosexual behavior. The briefs supporting Petitioners demonstrate only that those who support the legalization of sodomy have been very successful in moving the legislatures to adopt their moral views.

Moral judgments underlie every law. Disputes about moral choices belong to the legislative arena where the views of the people ultimately have control. This Court simply does not have the constitutional mandate to substitute its judgment for that of the elected representatives of the people on matters that boil down to nothing more than moral judgments.

*24 II.

THIS COURT SHOULD FOLLOW THE ORIGINAL INTENT OF THE FRAMERS AND DECLINE PETITIONERS' INVITATION TO LEGISLATE FROM THE BENCH

A. In a Republic, Laws Are Created Only by Legislatures.

Petitioners and their amici have urged this Court to radically rewrite the criminal laws of this nation. Sodomy once was considered a crime so unspeakable that courts declined to describe the behavior in any detail.³³ Now this very reluctance caused by moral revulsion is asserted as a basis for the anti-historical contention that the Framers of the Constitution intended to protect consensual sodomy.

The briefs filed by those who support the legalization of same-sex sodomy demonstrate that they have made significant progress toward their political goals. Far fewer states punish sodomy now than at earlier times in our nation's history.³⁴ However, unsatisfied with the pace of change, these political advocates ask this Court to finish the process in one swift judicial act. Their argument is cloaked in supposed historical analysis and constitutional *25 reasoning. In reality, these submissions contain wishful thinking presented as accurate history, and political rhetoric thinly disguised as constitutional analysis.

Elected officials in Congress proposed the Fourteenth Amendment. Elected officials in the states ratified the Fourteenth Amendment. If the meaning of the language of the Fourteenth Amendment is twisted from that intended by those who drafted and ratified it, we will witness not an act of social progress but one of judicial tyranny.

John Locke wrote:

Nor can any edict of anybody else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law which has not its sanction from that legislative which the public has chosen and appointed; for without this the law could not have that which is absolutely necessary to its being a law, the consent of the society, over whom nobody can have a power to make laws but by their own consent and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts.³⁵

Locke quotes Richard Hooker, Of the Laws of Ecclesiastical Polity (1593), to demonstrate the tyrannical nature of laws created by any other process.

The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same entire societies, that for any prince or potentate, of what kind soever *26 upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which public approbation hath not made so.³⁶

Locke understood the important role of republican governmental principles for the preservation of liberty. Those who fancy the term “civil libertarian,” and yet seek to change the law through the judiciary, seek not liberty, but an act that is “no better than mere tyranny.”

It is not the role of this Court to inquire into the social policy ramifications of anti-sodomy laws. A ruling based on an examination of such matters would be exactly the sort of judicial legislation that this Court condemned in West Virginia Board of Education v. Barnette, 319 U.S. 624, 650 (1943). In that case, this Court held: “The framers of the Constitution denied such legislative powers to the federal judiciary … [and] did not grant to this Court supervision over legislation.” Rather, this Court should consider only those arguments founded on analysis which is truly legal in character.

B. Legislative Trends Do Not Create New Constitutional Rights.

Each of the historical briefs filed in this case notes a “national trend” toward repealing or altering sodomy statutes. State legislatures have indeed made changes to sodomy laws, broadening, narrowing, or abolishing them. However, it does not follow that the alteration or repeal of sodomy statutes in some *27 states enshrines sodomy as a fundamental right guaranteed by the Bill of Rights and the Fourteenth Amendment. The fact that some states have changed or repealed their sodomy laws provides no support for the thinly veiled request for this Court to act as a “super-legislature.”³⁷ Defining the criminality of certain forms of sexual conduct, such as same-sex sodomy, is a policy issue that has historically and properly been left to the state legislatures.

Prior to her appointment to this Court, Justice Ginsburg criticized the Supreme Court for imposing the broad holding of Roe v. Wade, 410 U.S. 113 (1973), on the states. She noted “in my judgment, Roe ventured too far in the change it ordered.” Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 381 (1985). She further observed that the national trend “toward liberalization of abortion statutes” (also noted by this Court in Roe) quickly ended when the Court greatly restricted the states' authority to regulate abortion. Id. at 379-80; see also Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1205 (1992) (“Roe v. Wade … invited no dialogue with legislators. Instead, it seemed entirely to remove the ball from the legislators' court. In 1973, when Roe was issued, abortion law was in a state of change across the nation.”).

As in Roe, this Court has received a request to constitutionalize a divisive and highly visible political issue. Public respect for the rule of law is diminished whenever unelected officials remove the ability of the public to settle moral and political issues in the legislative chamber. Contrast the public reaction to

*28 Bowerrs v. Hardwick, 478 U.S. 186 (1986), with that to Roe. Those disappointed with the Bowers decision have successfully petitioned many legislative bodies for change. Opponents of Roe march on this Court since there is no other realistic venue for relief. This Court should stay out of this public policy dispute and leave it to the state legislatures to decide.³⁸

*29 CONCLUSION

The Texas law prohibits conduct-sodomy between individuals of the same gender-as many other states and their courts have historically done. There is no fundamental right “deeply rooted in this Nation's history and traditions” to engage in same-sex sodomy.

Bowers, 478 U.S. at 192-193. The Texas Court of Appeals' decision should be affirmed.

APPENDIX 1

State Sodomy Laws in 1791

Connecticut

That if any man shall lie with mankind, as he lieth with womankind, both of them have committed abomination, they both shall be put to death; except it shall appear that one of the parties was forced, or under fifteen years of age; in which case the party forced, or under the age aforesaid, shall not be liable to suffer the said punishment.

The Public Statute Laws of the State of Connecticut, 1808 title LXVI (66), ch. 1, § 2, p. 295.

Delaware

That if any person or persons shall commit sodomy, or buggery, or rape or robbery, … he or they so offending, or committing any of the said crimes within this government, their counsellors, aiders, comforters and abettors, being convicted thereof, as above-said, shall suffer as felons, according to the tenor, direction, form and effect of the several statutes in such cases respectively made and provided in Great Britain; any act or law of this government to the contrary in any wise not withstanding.

Laws of the State of Delaware, 1797, ch. 22a, § 5, p. 67 (passed in 1719).

Maryland

Maryland had no sodomy statute in 1791, but the Declaration of Rights of Maryland, section 3, a portion of the Maryland State Constitution passed in 1776 said “that the inhabitants of Maryland are entitled to the common law of England.…” Sodomy was a crime under the common law (see section on North Carolina).

Every person duly convicted of the crime of sodomy, shall be sentenced to undergo a similar confinement for a period not less than one year nor more than ten years, under the same conditions as are herein after directed.

Maryland Laws, ch.. CXXXVIII (138), art. IV, § 8.

Massachusetts

That if any man shall lay with mankind as he layeth with a woman, or any man or woman shall have carnal copulation with any beast or brute creature, and be thereof duly convicted, the offender, in either of those cases, shall be adjudged guilty of felony, shall be sentenced to suffer the pains of death, and the beast shall be slain, and every part thereof burned. And be it further enacted by the authority aforesaid, that such order and form of process shall be had and used, in trial of such offenders, and such judgment given, and execution done, upon the offender, as in cases of murder.

Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, p. 187, Act of March 3, 1785.

New Hampshire

That if any man shall carnally lie with a man, as a man carnally lieth with a woman, or if any man or woman shall have carnal copulation with any beast, or brute creature, and be thereof convicted, the offender in either of those cases before mentioned, shall suffer death, and the beast shall be slain and burned.

Laws of New Hampshire. 1805, p. 267 (passed February 8, 1791).

New Jersey

That sodomy, or the infamous crime against nature, committed with mankind or beast, shall be adjudged a high crime and misdemeanor, and be punished by fine and solitary imprisonment at hard labour, for any term not exceeding twenty-one years.

Acts of the General Assembly, March 18, 1796, ch. DC, § 7, p. 93.

New York

That the detestable and abominable vice of buggery, committed with mankind, or beast, shall be from hence forth adjudged felony; and such order and form of process therein shall be used against the offenders, as in cases of felony at the common law; and that every person being thereof convicted, by verdict, confession, or outlawry, shall be hanged by the neck, until he or she shall be dead.

Laws of New York, ch., 21, p. 391 (passed February 14, 1787).

North Carolina

When the Bill of Rights was ratified in 1791, North Carolina had adopted the English common law statute of Henry VIII which was the basis for the common law's crime of buggery (see section on South Carolina):

Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm, for the detestable and abominable vice of Buggery committed with mankind or beast: It may therefore please the King's Highness, with the assent of his Lords spiritual and temporal, and the Commons of this present Parliament assembled … That the same offense be from henceforth adjudged Felony … And that the offenders being hereof convict … shall suffer such pains of death and losses and penalties of their goods, chattels, debts, lands, tenements and hereditaments, as Felons be accustomed to doe [sic] according to the order of the Common-laws of this Realm. And that no person offending in any such offense, shall be admitted to his Clergy, And that Justices of Peace shall have power and authority, within the limits of their Commissions and Jurisdictions, to hear and determine the said offense, as they do use to doe [sic] in cases of other Felonies …

25 Henry VIII, ch. 6.

Pennsylvania

That the pains and penalties hereinafter mentioned shall be inflicted upon the several offenders who shall from and after the passing of this act commit and be legally convicted of any of the offences hereinafter enumerated and specified, in lieu of the pains and penalties which by law have been heretofore inflicted; that is to say, every person convicted of robbery, burglary, sodomy or buggery or as accessory thereto before the fact shall forfeit to the commonwealth all and singular the lands and tenements, goods and chattels whereof he or she was seized or possessed at the time the crime was committed and at any time afterwards until conviction and be sentenced to undergo a servitude of any term or time at the discretion of the court passing the sentence not exceeding ten years in the public gaol or house of correction of the county or city in which the offence shall have been committed and be kept at such labor and fed and clothed in such manner as is herein after directed.

The Statutes at Large of Pennsylvania, 1682-1801, vol. 13, (1682-1801), p. 511, ch. MDXVI (1516).

Rhode Island

That every person who shall be convicted of sodomy, or of being accessary [sic] thereto before the fact, shall, for the first offence [sic], be carried to the gallows in a cart, and set upon said gallows, for a space of time not exceeding four hours, and thence to the common gaol, there to be confined for a term not exceeding three years, and shall be grieviously fined at the direction of the Court; and for the second offence [sic] shall suffer death.

The Public Laws of the State of Rhode Island and Providence Plantations, 1798, § 8, p. 586, “An Act to Reform the Penal Laws.”

South Carolina

Forasmuch as there is not yet sufficient and condign [sic] Punishment appointed and limited by the due Course of the Laws of this Realm, for the detestable and abominable Vice of Buggery committed with the Mankind or Beast: (2) It may therefore be enacted, That the same offence be from henceforth adjudged felony, and such Order and Form of Process therein to be used against the Offenders as in Cases of Felony at the Common Law; (3) and that the Offenders being hereof convict [sic] by Verdict, Confession, or Outlawry, shall suffer such Pains of Death, and Losses and Penalties of the Goods, Chattels, Debts, Lands, Tenements and Hereditaments, as Felons be accustomed to do, according to the Order of the Common Laws of this Realm; (4) and that no Person offending in any such Offence, shall be admitted to his Clergy; (5) and that Justices of Peace shall have Power and Authority, within the Limits of their Commissions and Jurisdictions, to hear and determine the said Offence, as they do use to do in Case of other Felonies.

Public Laws of the State of South Carolina, 1790, p. 49.

The English common law statute banning sodomy issued by Henry VIII reads:

Where in the Parliament begun at London the 3d Day of November in the 21st Years of the late King of most famous Memory, King Henry the Eighth, and after by Prorogation holden at Westminster in the 25th Year of the Reign of said late King, there was one Act and Statute made, entitled, An Act for the Punishment of the Vice of Buggery, whereby the said detestable Vice was made Felony, as in the said Estatute [sic] more and large it doth and may appear: (2) Forasmuch as the said Statute concerning the Punishment of the said Crime and Offence of Buggery standeth at this present repealed and void by Virtue of the Statute of Repeal made in the 1st Year of the Reign of the late Queen Mary: Sithence which Repeal so had and made divers evil disposed Persons have been the more bold to commit the said most horrible and detestable Vice of Buggery aforesaid, to the high Displeasure of Almighty God.

II. Be it enacted, That the said Statute before mentioned, made in the 25th Year of the said late King Henry the 8th, for the Punishment of the said detestable Vice of Buggery, and every Branch, Clause, Article and Sentence therein contained, shall from and after the 1st Day of June next coming be revived, and from thenceforce shall stand, remain, and be in full Force, Strength and Effect for every, in such Manner, Form and Condition, as the same Statue was at the Day of the Death of the said late King Henry the Eighth, the said Statute of Repeal made in the said 1st Year of the said late Queen Mary or any Words general or special therein contained, or any other Act or Acts, Thing or Things, to the contrary notwithstanding.

Public Laws of the State of South Carolina, 1790, p. 65.

Virginia

Before 1792, Virginia relied on the English common law which made sodomy a punishable crime (see Hennings Statutes of Virginia, vol. 9, 1775-1778, ch. V, § VI, p. 127). Virginia passed a specific sodomy ban in 1792:

That if any do commit the detestable and abominable vice of buggery, with man or beast, he or she so offending, shall be adjudged a felon, and shall suffer death, as in case of felony, without the benefit of clergy.

Virginia Statutes at Large, 1835, p. 113.

State Sodomy Laws in 1868

Alabama

Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than two or more than ten years.

Alabama Code, 1852, § 3235, p. 583.

Arkansas

Every person convicted of sodomy, or buggery, shall be imprisoned in said jail and penitentiary house, for a period not less than five, nor more than 21 years.

Statutes of Arkansas, 1858, ch. 51, Art. IV, § 5, p. 335 (passed in 1838).

California

The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the State Prison for a term not less than five years, and which may extend to life.

Statutes 1850, ch. 99, § 48, p. 99.

Florida

Whoever commits the abominable and detestable crime against nature, either with mankind or with any beast, shall be punished by imprisonment in the State penitentiary not exceeding twenty years.

Florida Laws 1868, ch. 1637, Subchap. 8, § 17, p. 98.

Georgia

Sodomy and bestiality shall be punished by hard labour in the penitentiary, during the natural life or lives of person or persons convicted of these detestable crimes.

Lamar's of Georgia, 1810-1819, § 35, p. 571.

Illinois

The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the penitentiary for a term not less than one year, and may extend to life.

Revised Statutes of 1844-45, ch. 30, Div. 5, § 50, p. 158.

Kansas

Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, shall be punished by confinement and hard labor not exceeding ten years.

Art. 7, ch. 31, § 249, General Statutes of 1868 (found at vol. 2, p. 340, Statutes of Kansas, 1897).

Kentucky

Whoever shall be convicted of the crime of sodomy or buggery with man or beast, he shall be confined in the penitentiary not less than two nor more than five years.

Revised Statutes of 1852, ch. 28, Art. IV, § 11, p. 381.

Louisiana

Whoever shall be convicted of the detestable and abominable crime against nature, committed with mankind or beast, shall suffer imprisonment at hard labor for life.

Revised Statutes of Louisiana, 1856, “Crimes and Offences,” § 5, p. 136.

Maine

Whoever commits the crime against nature, with mankind or with a beast, shall be punished by imprisonment not less than one, nor more than ten years.

Revised Statutes of 1857, ch. 124, § 3, p. 684.

Michigan

Every person who shall commit the abominable and detestable crime against nature, either with mankind or with any beast, shall be punished by imprisonment in the State prison not more than fifteen years.

Compiled Laws of 1857, § 5871, p. 1543.

Minnesota

Every person who shall commit sodomy, or the crime against nature, either with mankind or any beast, shall be punished by imprisonment in the territorial [sic] prison, not more than five years, nor less than one year.

Minnesota Statutes 1858, ch. 96, § 13, p. 729.

Mississippi

Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term not more than ten years.

Laws of 1857, ch. 64, Art. 238, § 52, p. 611.

Missouri

Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, shall be punished by imprisonment in the penitentiary not less than ten years.

Revised Statutes 1855, ch. 50, § 7, p. 624.

Nevada

The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the state prison for a term not less than five years and which may extend to life.

The Compiled Laws of Nevada in Force from 1861-1900, § 4699, sec. 45, p. 915 (approved November 26, 1861).

Oregon

If any person shall commit sodomy or the crime against nature either with mankind or beast, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one year, nor more than five years.

Oregon Organic and General Laws, 1845-64, ch. 48, § 639, p. 560 (passed October 19, 1864).

Tennessee

Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five nor more than fifteen years.

Code of Tennessee, 1858, § 4843, p. 868.

Texas

If any person shall commit with mankind or beast the abominable and detestable crime against nature, he shall be deemed guilty of sodomy, and on conviction thereof, he shall be punished by confinement in the penitentiary for not less than five nor more than fifteen years.

Penal Code of the State of Texas, 1879, art. 342, p. 46 (passed on February 11, 1860).

Vermont

Vermont had no criminal sodomy statute until 1937, although Vermont courts recognized sodomy as a crime at common law, which could be punished. See State v. La Forrest, 71 Vt. 311, 45 A. 225 (1899). This is the text of the Vermont criminal sodomy statute passed in 1937:

A person participating in the act of copulating the mouth of one person with the sexual organ of another shall be imprisoned in the state prison not less than one year nor more than five years.

Vermont Statutes of 1947, ch. 370, § 8480, p. 1593.

West Virginia

If any person shall commit the crime of buggery, either with mankind or with any brute animal, he shall be confined in the penitentiary not less than one nor more than five years.

Code of West Virginia-1870, ch. 149, § 12, p. 694 (passed in 1868).

Wisconsin

Every person who shall commit sodomy, or the crime against nature, either with mankind or beast, shall be punished by imprisonment in the state prison, not more than five years nor less than one year.

Revised Statutes of Wisconsin, 1858, ch. 170, § 15, p. 975.

After 1868

Indiana

Indiana did not have a criminal sodomy law at the time of the passage of the 14^th Amendment, but passed the following law in 1881:

Whoever commits the abominable and detestable crime against nature, by having carnal knowledge of a man or beast, or who, being a male, carnally knows any man or any woman through the anus, and whoever entices, allures, instigates, or aids any person under the age of twenty-one years to commit masturbation or self-pollution--is guilty of sodomy, and, upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than two years.

Revised Statutes of Indiana-1897, ch. 5, art. 5, § 2118, p. 338.

Iowa

Iowa did not have a criminal sodomy law at the time of passage of the 14^th Amendment, but later passed the following law in 1892:

Any person who shall commit sodomy, shall be imprisoned in the penitentiary not more than ten years nor less than one year.

Annotated Code of Iowa, 1897, § 4937, p. 1941, passed 24 General Assembly, ch. 39.

Ohio

Ohio did not have a criminal sodomy law in 1868, at the time of ratification of the Fourteenth Amendment. The Ohio Legislature later passed a criminal sodomy statute in 1885:

Sec. 1 That whoever shall have carnal copulation against nature, with another human being or with a beast, shall be deemed guilty of sodomy, and shall, on conviction thereof, be imprisoned in the penitentiary not more than twenty years.

Ohio Laws 1885, p. 241 (passed May 4, 1885).

Nebraska

Nebraska had a criminal sodomy law while it was a territory, but not for a few years after it became a state. The Statutes of the Nebraska Territory of 1866 had a criminal sodomy statute at § 47, “Offenses Against Persons,” p. 599. Nebraska had no criminal sodomy law at the time the states ratified the Fourteenth Amendment in 1868. The Nebraska State Legislature later passed such a law in 1875, using the exact language of the earlier territorial sodomy law.

That infamous crime against nature either with man or beast, shall subject the offender to be punished by imprisonment in the penitentiary for a term not less than one year, and my [sic] extend to life.

Compiled Statutes, 1881, § 245, p. 805.

Footnotes

* Counsel of Record

Our thanks to Matthew L. Brownfield, Jeffrey C. Cavanaugh, Daniel S. Chapin, Rachel A. Denlinger, David A. Handermann, Rachel J. Kozlowski, Zachary J. Martin, Dan O'Brien, Kyle D. Pousson, David J. Shaw, Stephen L. Shipp, Sumi Thomas, Joel Tetreau, and Galen N. Thorp for their assistance on this brief.

All parties have consented to the submission of this brief through letters filed with the Clerk of the Court. Amicus states that no portion of this brief was authored by counsel for a party and that no person or entity other than amicus or its counsel made a monetary contribution to the preparation or submission of this brief.

Historians Brief at 16; Cato Brief at 13; ACLU Brief at 20 & n. 39.

Historians Brief at 11; Cato Brief at 18 (“gay [male-male] couples”); ACLU Brief at 28.

Historians Brief at 1; Cato Brief at 1.

Only the Cato Brief uses language from the statute (p. 1) and cites the statute (p. 28). Neither the text of the statute nor the citation appear in the other two historical briefs.

“Buggery is … committed by carnall knowledge against the ordinance of the Creator and order of nature, by mankind with mankind, or with brute beast, or by womankind with bruite beast.” Edward Coke, The Third Part of the Institutes of the Laws of England 58-59 (1641). Thus, the term included anal intercourse between two men. See also Stafford's Case, 12 Co. Rep. 36, 37, 77 Eng. Rep. 1318 (1607).

Blackstone referred to the “infamous crime against nature” as “a crime not fit to be named; ‘peccatum illud horribile, inter christianos non nominandum.’ ” 4 Commentaries *215-16. Under Henry VIII, English law punished “buggery” in this fashion:

Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm for the detestable and abominable Vice of Buggery committed with mankind or beast: It may therefore please the King's Highness with the assent of the Lords Spiritual and the Commons of this present parliament assembled, that it may be enacted by the authority of the same, that the same offence be from henceforth adjudged Felony and that such an order and form of process therein to be used against the offenders as in cases of felony at the Common law. And that the offenders being herof convict by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their goods chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realme. And that no person offending in any such offence shall be admitted to his Clergy, And that Justices of the Peace shall have power and authority within the limits of their commissions and Jurisdictions to hear and determine the said offence, as they do in the cases of other felonies.

25 Henry VIII, ch. 6 (1553). After a brief repeal by Queen Mary I, Queen Elizabeth I reenacted the punishment and made it permanent, 5 Eliz. ch. 17 (1562).

See, e.g., Connecticut, Public Statute Laws of the State of Connecticut, 1808 tit. LXVI (66), Chap. 1 § 2, p. 295; Massachusetts, Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, p. 187, Act of Mar. 3, 1785; New Hampshire, of New Hampshire, 1784-1792, ch. 42, at 596 (enacted Feb. 8, 1791).

“For this cause God gave them up unto their vile affections for even their women did change the natural use into that which is against nature: And likewise also the men leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves of their error which was meet.” Romans 1:26-27 (KJV).

Although the Apostle Paul did not refer to Sodom and Gomorrah in Romans 1:26-27 (the “crime against nature” passage); later in the same epistle, Paul referenced the towns of Sodom and Gomorrah in an obviously negative light. See Romans 9:29.

See Part I.C, infra.

Connecticut, Public Statute Laws of the State of Connecticut, 1808 tit. LXVI (66), ch. 1 § 2, at 295 (enacted Dec. 1, 1642); Massachusetts, Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, at 187 (enacted Mar. 3, 1785); New Hampshire, Laws of New Hampshire, 1784-1792, ch. 42, at 596 (enacted Feb. 8, 1791); New York, 2 Laws of New York 1777-1789, ch. XXI (21), at 45 (enacted Feb. 14, 1787); North Carolina, 1 The Revised Statutes of the State of North Carolina, Passed by the General Assembly at the Session of 1836-7, at 293, 297-98 (enacted Oct. 16, 1749); Rhode Island, Public Laws of the State of Rhode Island and Providence Plantations, 1798, § 8, p. 586; South Carolina, 2 Statutes of South Carolina at 465, 493 (enacted Dec. 12, 1712); Virginia, 9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI, at 127 (enacted May 1776).

Thomas Jefferson, Writings 756-57 (Merrill D. Peterson ed., Library Classics of the U.S. 1984).

George Washington, The Writings of Washington, John C. Fitzpatrick, ed. (Washington, D.C.: U.S. Government Printing Office, 1932), Vol. XI, pp. 83-84, from General Orders at Valley Forge on March 14, 1778.

Georgia is the only state not to have clearly adopted English common law or a sodomy statute by 1791. However, Georgia did adopt such a statute later, showing that its Legislature did not believe the new Bill of Rights limited its authority to criminalize sodomy. Georgia certainly punished sodomy - in 1734, a man received 300 lashes for engaging in sodomy. 3 Detailed Reports on the Salzburger Emigrants Who Settled in America … Edited by Samuel Urlsperger 314 (William H. Brown, trans., Athens, GA: Univ. of Georgia Press, 1972). In 1743, another man received the death penalty. 2 The Journal of William Stephens 1743-1745 3 (E. Merton Coulter, ed., Athens, GA: Univ. of Georgia Press, 1958-59).

Five states had statutory provisions against same-sex sodomy: Connecticut, Public Statute Laws of the State of Connecticut, 1808 tit. LXVI (66), ch. 1 § 2, at 295 (enacted Dec. 1, 1642); Massachusetts, Perpetual Laws of the Commonwealth of Massachusetts, 1780-1789, at 187 (enacted Mar. 3, 1785); New Hampshire, Laws of New Hampshire, 1784-1792, ch. 42, at 596 (enacted Feb. 8, 1791); New York, 2 Laws of New York 1777-1789, ch. XXI (21), at 45 (enacted Feb. 14, 1787); North Carolina, 1 The Revised Statutes of the State of North Carolina, Passed by the General Assembly at the Session of 1836-7, at 293, 297-98 (enacted Oct. 16, 1749). Five states adopted English common law with its explicit prohibition of same-sex sodomy: Delaware, Laws of the State of Delaware 1797, ch. 22a § 5, at 67 (enacted 1719); Maryland, Maryland Laws, Thomas Sim Lee, Esq., Governor, ch. LVII (57), art 10; New Jersey, Acts of the General Assembly, ch. DC (600) § 7, at 93 (enacted Mar. 18, 1796); South Carolina, 2 Statutes of South Carolina at 465, 493 (enacted Dec. 12, 1712); Virginia, 9 Hennings Statutes of Virginia 1775-1778, ch. V (5) § VI, at 127 (enacted May 1776). Two states had general sodomy statutes: Rhode Island, Public Laws of the State of Rhode Island and Providence Plantations, 1798, § 8, p. 586; and Pennsylvania, Statutes at Large of Pennsylvania, 1682-1801 vol. 13, (1682-1801), p. 511, chap. MDXVI (1516) (enacted Apr. 5, 1790).

See Part I.A: infra.

Perpetual Laws of the Commonwealth of Massachusetts, 1780- 1789, at 187 (enacted Mar. 3, 1785).

Laws of New Hampshire 1784-1792, ch. 42, at 596 (enacted Feb. 8, 1791).

Five original states retained their laws with only minor changes: New Hampshire, Public Laws of New Hampshire June 1812 5-6 § 6 (enacted June 19, 1812); New Jersey, A Digest of the Laws of New Jersey 162 § 9 (enacted Apr. 16, 1846); New York, Revised Statutes of the State of New York, at 46 (enacted Dec. 10, 1828); South Carolina, Laws of South Carolina 1868-1871 175 (enacted Feb. 4, 1869); Virginia, The Code of Virginia. Second Edition, Including Legislation to the Year 1860 (enacted Mar. 19, 1860). Georgia clarified its law, see note 9, infra. Two states admitted after 1791 prohibited same-sex sodomy by adopting Virginia's law: Kentucky, 1 Digest of Kentucky Statute Law 36 § 8 (Littell & Swigert, eds., Frankfort, KY: Kendall & Russell, 1822) (incorporating English common law through Virginia law); 2 Digest of the Statute Laws of Kentucky of a Public and Permanent Nature 1265 § 4 (Frankfort: Albert G. Hodgen, 1834) (lowering the penalty, but retaining the criminal statute); West Virginia, West Virginia Const., art. XI § 8 (1863) (incorporating English common law through Virginia law).

“Sodomy is a connection between two human beings of the same-sex - the male - named from the prevalence of the sin in Sodom.” Ausman v. Veal, 10 Ind. 355 (May Term 1858) (defining the term “sodomy” as used in a slander case); Coburn v. Harvey, 18 Wis. 147 (Jan. Term 1864) (Wisconsin Supreme Court construed the history of Wisconsin as having adopted the common law of England, thus incorporating its same-sex sodomy law).

Public Laws of New Hampshire June 1812 5-6 § 6 (enacted June 19, 1812).

A Digest of the Laws of New Jersey 162 § 9 (enacted Apr. 16, 1846). Interestingly, New Jersey also added sodomy to the list of crimes that would support a death sentence in a felony-murder conviction. Id. At 161 § 3.

Alabama, Ala. Rev. Code 3604 (1867); Arkansas, Ark. Stat., ch. 51, Art. IV, 5 (1858); California, Statutes 1850, ch. 99, § 48, p. 99; Connecticut, Conn. Gen. Stat., Tit. 122, ch. 7, 124 (1866); Delaware, Del. Rev. Stat., ch. 131, 7 (1893); Florida, Fla. Rev. Stat., div. 5, 2614 (passed 1868) (1892); Illinois, Ill. Rev. Stat., div. 5, 49, 50 (1845); Louisiana, La. Rev. Stat., Crimes and Offences, 5 (1856); Maine, Me. Rev. Stat., Tit. XII, ch. 160, 4 (1840); Maryland, 1 Md. Code, Art. 30, 201 (1860); Massachusetts, Mass. Gen. Stat., ch. 165, 18 (1860); Michigan, Mich. Rev. Stat., Tit. 30, ch. 158, 16 (1846); Minnesota, Minn. Stat., ch. 96, 13 (1859); Mississippi, Miss. Rev. Code, ch. 64, LII, Art. 238 (1857); Missouri, 1 Mo. Rev. Stat., ch. 50, Art. VIII, 7 (1856); North Carolina, N.C. Rev. Code, ch. 34, 6 (1855); Oregon, Laws of Ore., Crimes - Against Morality, etc., ch. 7, 655 (1874); Pennsylvania, Act of Mar. 31, 1860, 32, Pub. L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905); Rhode Island, R. I. Gen. Stat., ch. 232, 12 (1872); Tennessee, Tenn. Code, ch. 8, Art. 1, 4843 (1858); Texas, Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860); Vermont, Acts and Laws of the State of Vt. (1779).

The three amicus briefs are those by the ACLU, Cato, and the Historians.

Using the ACLU Brief's calculations, approximately 73 Texas cases and 79 cases from other states were “unclear.” ACLU Brief at 14 ns. 17 & 18.

People v. Williams, 59 Cal. 397, 398 (1881).

See State v. Gage, 116 N.W. 596 (Iowa 1908) (ruling that sodomy could be established by witnesses or circumstantial evidence); Sweenie v. Nebraska, 80 N.W. 815 (Neb. 1899) (holding that adultery and fornication were crimes regardless of privacy); Hutchinson v. State, 24 Tenn. 142 (1844) (holding that adultery is an offense no matter how privately the intercourse is carried on).

See, e.g,, Bartholomew v. Illinois, 104 Ill. 601 (1882) (listing sodomy with burglary, robbery, incest, larceny, forgery, bigamy and others).

See, e.g., State v. Carey, 122 P. 868 (Nev. 1912) (noting the requirement that an accomplice must be corroborated by other evidence), People v. Deschessere, 74 N. Y. Supp. 761 (1902) (same); People v. Hickey, 41 P. 1027 (Cal. 1895) (same); Medis v. State, 11 S.W. 112 (Tex.Ct.App. 1889) (same).

See, e.g., State v. Hull, 26 Iowa 292 (1868) (rule requiring corroboration for the testimony of accomplice in a case involving two horse thieves); Anderson v. State, 20 Tex.App. 312 (1886) (rule applied in a perjury case).

See, e.g., Jones v. State, 101 S.W. 1012 (Tex. Crim. App. 1907) (upholding conviction on the testimony of only one witness); Territory v. Mahaffrey, 3 Mont. 112 (1878) (convicting upon corroborating testimony); Commonwealth v. Snow, 111 Mass. 411 (1873) (same).

“It must be considered that in sodomy cases, the question of consent of the part with whom the act is committed, is not a material one. The crime is complete in either case if the act be committed.…” Foster v. State, 1 Ohio C.D. 261, 1886 WL 2557 at *4 (Ohio Cir. Ct. 1886).

See, e.g., Honselman v. Illinois, 48 N.E. 304, 305 (Ill. 1897) (“The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of different acts which may go to constitute it.”); Cross v. State, 17 Tex. Ct. App. 476, 1885 WL 6739 at *2 (1885) (“the crime of sodomy is too well known to be misunderstood, and too disgusting to be defined further than by merely naming it. I think it unnecessary, therefore, to lay the carnaliter cognovit in the indictment.”).

Cato Brief at 17, 26, Historians Brief at 29; ACLU Brief at 21-24.

John Locke, Second Treatise on Civil Government 74 (Prometheus Books 1986) (1690).

Id.

See Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (“Our recent decisions make plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare.”).

Additionally, this Court should dismiss the cert petition as improvidently granted due to the deficient record. This case does not provide the facts for this Court to address the significant issues raised in the Questions Presented involving the constitutionality of private sex acts engaged in by consenting adults. The record in this case only shows that the Petitioners were adult males who engaged in “anal sodomy.” Pet. App. 129a. & 141a.

Under the record of this case, the factual possibilities exist that one of Petitioners lacked capacity to consent, that the sodomy was forced, or that Petitioners engaged in commercial prostitution, or performed their act in public view or before an audience. Petitioners have not presented evidence refuting those factual alternatives. It is Petitioners' burden to prove that these facts do not exist in a case, in order to give this Court a clean vehicle to rule on the substantive legal questions. At best, all Petitioners can do is make a facial challenge to the Texas law, which means this Court should apply the standard articulated in U.S. v. Salerno, 481 U.S. 739, 745 (1987) (a party seeking facial invalidation of a statute “must establish that no set of circumstances exists under which the Act would be valid”).

This Court should not reexamine a major Constitutional question, and also overturn an earlier decision when it is unclear that the facts of this case present an opportunity for this Court to rule on such a question Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers Unions v. Denver Milk Producers, Inc., 334 U.S. 809 (1948) (per curiam) (“Because of the inadequacy of the record, we decline to decide the Constitutional issues involved.”).