"Lawrence v. Texas: Brief of Amici Curiae Constitutional Law Professors" by Evan Caminker
 

Document Type

Brief

Publication Date

1-15-2003

Abstract

The law professors named below teach and write about Constitutional law. Both basic and advanced constitutional law courses, as well as a wide range of scholarship on constitutional issues, regularly consider the rights of gay men and lesbians. Amici are among the many scholars who have spent a considerable amount of time thinking, writing, and teaching about the issues before the Court in this case. A selected list of their scholarship on these issues is contained in an Appendix to this brief.

Based on this expertise, and on careful review of this Court's decisions, amici argue in this brief that Texas Penal Code § 21.06 violates the equal protection clause of the Fourteenth Amendment. Amici join this brief solely on their own behalf and not as representatives of their universities.

The petition for certiorari presents the question whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled. Amici support petitioners' position. But this Court need not reach that question-nor hold that heightened scrutiny is required for statutes that discriminate on the basis of sexual orientation in order to conclude that Texas Penal Code § 21.06 violates the equal protection clause. The statute fails conventional equal protection analysis because it is not rationally related to the achievement of a legitimate state interest.

Part I of this brief sets out this Court's longstanding practice of considering the quality of the interests affected by a particular classification, even when it is conducting rationality review. It shows that the interests that § 21.06 impacts are vitally important to the individuals involved and thus counsel sensitive review.

Part II of this brief shows that § 21.06 is unconstitutional because it is not sufficiently related to the achievement of any legitimate government purpose. Section A demonstrates that § 21.06 does not even serve a legitimate government purpose. This Court has squarely held that the straightforward desire to harm a politically unpopular group cannot be a legitimate governmental interest. Section 21.06 conveys precisely this form of intolerance. Texas has identified no rationale for why it has condemned the acts prohibited by § 21.06 beyond its lawyers' declaration that the law reflects a choice about the morality of those acts. Given the way § 21.06-actually operates, it does not serve as a means of preventing these acts. It can be explained only as a means of singling out gay people for burdens not imposed on other individuals. The law can and is used as an excuse to persecute gay people, even if it is seldom directly enforced.

Section B argues that even if this Court were to conclude that respondent is entitled to express a moral judgment about homosexuality, § 21.06 would still fail scrutiny under the equal protection clause because it is not rationally related to achieving this purpose. The best evidence that the state's chosen means criminalization is not rationally related to its end is that the state rarely ever employs these means. Thus, because § 21.06 is not actually enforced, it operates only to express constitutionally impermissible animus. Yet given the nature of the acts involved, if Texas were permitted to enforce § 21.06 as a criminal statute, this would pose unacceptable risks that constitutionally repugnant behavior would occur in the course of enforcing the statute.

Comments

Amicus: Ackerman, Professor Bruce A.; Balkin, Professor Jack M.; Bell, Professor Derrick A. Jr.; Brest, Professor Paul; Caminker, Professor Evan; Chemerinsky, Professor Erwin; Cruz, Professor David B.; Cole, Professor David D.; Grey, Professor Thomas C.; Karlan, Professor Pamela S.; Karst, Professor Kenneth L.; Koppelman, Professor Andrew; Levinson, Professor Sanford; Michelman, Professor Frank; Rubenstein, Professor William B.; Shiffrin, Professor Steven H.; Stone, Professor Geoffrey R.; Yoshino, Professor Kenji

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