Bestiality, incest, prostitution—those practices and other horribles would be legalized after the U.S. Supreme Court struck down last year a Texas statute that outlawed same-sex sodomy, Justice Antonin Scalia predicted in a scathing dissent.
For now, attorneys who agree and those who disagree with his 21-page dissent in Lawrence v. Texas, 539 U.S. 558, say it’s too soon to predict the decision’s effects.
But, of the cases pending at the circuit level that cite the opinion, appellate courts seem reluctant to apply the majority finding, say lawyers involved in the actions.
Courts appear to be treading cautiously, sizing up cases involving public and private conduct, and trying to distinguish among the variety of sexual acts presented in cases on appeal.
“Most of the courts are doing a good job distinguishing Lawrence, especially in cases involving juveniles and obscenity,” says Janet Larue, chief counsel for Concerned Women for America. The D.C.-based group submitted an amicus brief in Lawrence on behalf of the state. “There is the distinction that obscenity is a public act, where Lawrence is limited to private, consenting adult sex.”
On the other hand, says Washington, D.C., lawyer William H. Hohengarten, the way Scalia crafted his dissent may influence courts to interpret the majority opinion narrowly.
“The majority doesn’t use the phrase ‘fundamental right,’ but everything [Justice Anthony M. Kennedy] wrote in the opinion made it clear that what he was talking about was a fundamental right,” says Hohengarten, who argued on Lawrence’s behalf. “What Scalia said in his dissent was that the majority never said it’s a fundamental right, so it’s not one.”
Kennedy intended “a very broad, majestic, powerful ruling, but because of the cleverness of Scalia’s dissent, it’s being interpreted differently,” he says.
Indeed, some plaintiffs attorneys worry that the courts are nervously backing away from Lawrence too quickly.
“They’re basically afraid of Lawrence and where Lawrence is going to take us,” says attorney Mark Lopez, referring to Scalia’s feared consequences.
Lopez, of the American Civil Liberties Union’s New York City office, argued last September before the 11th U.S. Circuit Court of Appeals at Atlanta in a case involving an Alabama statute that criminalizes the sale of sex devices.
The case, Williams v. Pryor, one of the first to be argued after Lawrence was decided last June, had been before the 11th Circuit before. Three years ago, the appeals court upheld the statute, saying that the “crafting and safeguarding of public morality … is a legitimate government interest under rational basis scrutiny.” 240 F.3d 944.
On remand, the U.S. District Court for the Northern District of Alabama declared the law unconstitutional. 220 F. Supp. 2d 1257 (2002).
In rearguments last fall, however, the appeals court was “looking for every reason to limit” the Lawrence opinion, Lopez says. “The questions directed to me were all about Lawrence when I don’t need Lawrence to win. They wanted to know what my view of the law was and how it affected our case.”
Lopez’s argument is that the law violates the fundamental right to privacy stressed by the Lawrence majority. However, he’s not confident that argument will prevail, and he points to another 11th Circuit case in which the court read Lawrence narrowly.
In that case, plaintiffs who challenged a Florida statute banning same-sex adoption also cited Lawrence. In January the court upheld the law, saying, “It is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right.” Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804.
Adoption is a privilege for adopter and adoptee, the court said, and the state has the right to set standards for potential adoptive parents. “We do not sit as a superlegislature to award by judicial decree what was not achievable by political consensus,” the court said.
“The language in that case is definitely going to have consequences in my case,” Lopez says. “The court was very clear that it doesn’t want to recognize any new constitutional rights.”
Despite Lawrence, several states still have sodomy laws on the books. In Utah, a man is challenging a state law that forbids sodomy between people who are not married to each other. Saying that the plaintiff lacked standing, a state judge dismissed the claim because the plaintiff had not been charged.
“The judge put in a comment that with issues of this importance, the legislature should consider the law and make the change,” says Salt Lake City lawyer Brian Barnard, who represents the plaintiff. Barnard has appealed. The Utah legislature did not address the law this session.
“They’re aware of my lawsuits,” Barnard says. “And they’re aware of the Lawrence decision because they proposed a constitutional amendment to outlaw same-sex marriage.”
In Virginia, a woman was charged with a felony in January for having oral sex in a car, a violation of the state’s crimes-against-nature statute.
Police officers have discretion whether to apply the law, says David M. Lee of Newport News, Va., the woman’s lawyer. “You’ve got to have someone who is willing to put it on the line and step forward,” says Lee, who plans to argue that the law is unconstitutional under Lawrence.
That the act took place in a public place, Lee continues, shouldn’t matter. “Our position is that the statute as written is on its face unconstitutional,” he says. “The higher courts can’t insert the word ‘public’ and stop interpreting Lawrence v. Texas.”
Like Utah, the Virginia legislature declined to address the anti-sodomy law this year, says Patrick McGlone, who is the co-chair of the Sexual Orientation and Gender Identity Committee of the ABA’s Individual Rights and Responsibilities Section.
“There are still prosecutions going on in Virginia, and there are still arrests being made,” he says. “Some take the position that the law is inapplicable outside the home.”
Another case coming in the wake of Lawrence is State v. Limon, 83 P.3d 229 (Kan. Ct. App. 2004), in which a Kansas appeals court upheld the 17-year sentence of an 18-year-old retarded man who performed consensual oral sex on a 14-year-old male. Although Kansas has a “Romeo and Juliet law”—which decriminalizes consensual sex when one partner is 18 or 19 and the other is between 14 and 16—the court there found that the statute does not apply to same-sex couples.
Defense lawyers cited Lawrence on the defendant’s behalf. And the U.S. Supreme Court, according to Hohengarten, may take this case.
Other cases that cite Lawrence may not get far. “There are places where people are trying to use it in ways I don’t think the U.S. Supreme Court would accept yet, like adultery,” Hohengarten says. If individuals choose to marry, he says, states have the power to enforce the marital commitment, and adultery is not a discrimination issue.
Likewise, he doesn’t think the majority opinion supports polygamy. Barnard is citing it in another Utah case, which challenges a state law that forbids bigamy.
The plaintiffs are a married couple and a single woman who want a plural marriage. They were denied a marriage license in Salt Lake County; Barnard is now working on a summary judgment motion for the federal court case.
This is the second case Barnard has brought challenging the state’s bigamy law, and he admits that it’s an uphill battle. Settled by Mormon pioneers who often engaged in polygamy, Utah made the practice illegal in the early 1900s as a condition of statehood.
“In Utah, when someone says polygamy, what comes to mind is incest, statutory rape and welfare fraud,” he says. “My clients are 50-year-olds who have never been on public assistance, are not interested in marrying 13-year-olds, and are not engaged in criminal conduct.”
Or the bigamy law could be used to prosecute people who are not engaged in polygamy, according to Barnard. If a married couple separates, he reasons, and one spouse lives with a lover before the divorce is final, in Utah that person could be found guilty of bigamy.
“If you have some young stud who has six girlfriends and impregnates all six of them, it’s not a crime,” he says. “You have some guy who says he’s a polygamist, and he wants to maintain a relationship with six women who all live in a commune, and he’s going to refer to them as his wi[ves]—that’s a crime.”