Brief of Petitioners

A. Petitioners' Arrests, Convictions, And Appeals.

Late in the Evening of September 17, 1998, Harris County, Texas, sheriff's officers entered John Lawrence's home and there intruded on Lawrence and Tyron Garner having sex. The officers were responding to a false report of a "weapons disturbance." Pet. App. 129a, 141a.¹ They arrested petitioners, jailed them, and did not release them from custody until the next day. Clerk's Record in State v. Lawrence, at 3 ("C.R.L."); Clerk's Record in State v. Garner, at 3 ("C.R.G.").

The State charged Petitioners with violating the Texas "Homosexual Conduct" statute, Tex. Pen. Code § 21.06 (the "Homosexual Conduct Law" or "Section 21.06"), which criminalizes so-called "deviate sexual intercourse" with another person of the same sex, but not identical conduct by different-sex couples. Id. The sole facts alleged by the State to make out a violation were that each Petitioner "engage[d] in deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." Pet. App. 127a, 139a. The State did not allege that the conduct was public, non-consensual, with a minor, or in exchange for money. Id. The charges rested solely on consensual, adult sexual relations with a partner of the same sex in the privacy of Lawrence's home. Id.

After proceedings and initial convictions in the Justice of the Peace Court, Petitioners appealed for a trial de novo to the Harris County Criminal Court. C.R.L. 15; C.R.G. 12. They filed motions to quash the charges on the ground that the law violates the Fourteenth Amendment's guarantees of equal protection and privacy, both on its face and as applied to their "consensual, adult, private sexual relations with another person of the same sex." Pet. App. 117a–118a, 121a–122a, 130a–131a, 134a–135a. On December 22, 1998, the court denied the motions to quash. Pet. App. 113a. Lawrence and Garner then pled nolo contendere, Pet. App. 114a, preserving, under Texas procedural rules, their right to pursue previously asserted defenses. Tex. Code Crim. P. § 44.02. The court imposed on each a fine of $200 and court costs of $141.25. Pet. App. 107a–108a, 109a–110a, 116a.

In consolidated appeals to the Texas Court of Appeals, Lawrence and Garner argued that Section 21.06 impermissibly discriminates between citizens "[u]nder any characterization of the classification." Amended Brief of Appellants at 4, 5, 6–17 (Tex. App. filed Apr. 30, 1999) ("Am. Br."); Additional Brief of Appellants 1 n.1, 14–22 (Tex. App. filed Aug. 11, 2000) ("Add'l Br."); Petition for Discretionary Review at 7–13 (Tex. Crim. App. filed Apr. 13, 2001) ("Pet. Disc. Rev."). Petitioners also argued that the statute invades their right of privacy and preserved their contention that Bowers v. Hardwick, 478 U.S. 186 (1986), was wrongly decided. Am. Br. 5, 23–26; Add'l Br. 23 n.20; Pet. Disc. Rev. 16–19.

At oral argument in the Court of Appeals, counsel for the State conceded that "he could not 'even see how he could begin to frame an argument that there was a compelling State interest'" served by Section 21.06. Pet. App. 76a (quoting counsel for Texas). Texas has repeatedly identified its only aim as "enforcement of principles of morality and the promotion of family values." See, e.g., State's Brief in Support of Rehearing En Banc 16 (Tex. App. filed Aug. 23, 2000) ("States' Br. in Supp. of Reh'g En Banc").

On June 8, 2000, a panel of the Court of Appeals reversed Petitioners' convictions under the Texas Equal Rights Amendment, holding that Section 21.06 impermissibly discriminates on the basis of sex. Pet. App. 86a–92a. After rehearing en banc, the Court of Appeals reinstated Petitioners' convictions on March 15, 2001. Pet. App. 3a, 4a. Citing Bowers, the court rejected Petitioners' substantive due process claim. Pet. App. 24a–31a. As to the federal equal protection claim, the court held that the statute was subject to and survived rational basis review, because it "advances a legitimate state interest, namely, preserving public morals." Pet. App. 13a. The court distinguished Romer v. Evans, 517 U.S. 620 (1996), as limited to discrimination in the right to seek legislation. Pet. App. 14a–15a.

Two Justices of the appellate court "strongly" dissented from the rejection of Petitioners' federal equal protection arguments. Pet. App. 42a. The dissent reasoned that:

where the same conduct, defined as "deviate sexual intercourse[,]" is criminalized for same sex participants but not for heterosexuals[,] [t]he contention that the same conduct is moral for some but not for others merely repeats, rather than legitimizes, the Legislature's unconstitutional edict.

Pet. App. 44a. Petitioners timely sought discretionary review from the Texas Court of Criminal Appeals, which was refused. Pet. App. 1a, 2a.