Brief of Petitioners

The Homosexual Conduct Law is of comparatively recent vintage. It was enacted in 1973 when Texas repealed all of its then-existing laws that criminalized private sexual conduct between consenting adults. See 1973 Tex. Gen. Laws ch. 399, §§ 1, 3. Prior to that time, the criminality of consensual sexual conduct in Texas did not depend on whether a couple was same sex or different-sex. In particular, oral as well as anal sex was a crime for all. 1943 Tex. Gen. Laws ch. 112, § 1. See generally Baker v. Wade, 553 F. Supp. 1121, 1148–53 (N.D. Tex. 1982) (reviewing history of Texas sodomy laws), rev'd, 769 F.2d 289 (5th Cir. 1985) (en banc).² Until 1973 Texas also criminalized fornication and adultery. See Tex. Pen. Code arts. 499–504 (1952) (repealed by 1973 Tex. Gen. Laws, ch. 399, § 3).

The 1973 repeals abolished all those crimes, 1973 Tex. Gen. Laws ch. 399, § 3, freeing heterosexual adult couples, married or unmarried, to engage in all forms of consensual, private, non-commercial sexual intimacy without state intrusion. In the same enactment, however, the Legislature adopted Section 21.06, see id. § 1, which for the first time singled out same-sex couples for criminal sanctions. Section 21.06 applies to "deviate sexual intercourse," which is defined as oral, anal, and certain other sexual conduct without regard to whether the actors are of the same or different sexes. See Tex. Pen. Code § 21.01 (1).³ But "deviate sexual intercourse" is not a crime when engaged in privately by two consenting adults of different sexes. Rather, Section 21.06 criminalizes only "Homo-sexual Conduct," making it a punishable offense to engage in "deviate sexual intercourse with another individual of the same sex," but not identical conduct by heterosexual couples. Tex. Pen. Code § 21.06.⁴

Texas, of course, also has and enforces other laws that criminalize sexual conduct that takes place in public, Tex. Pen. Code §§ 21.07 (a)(2), 21.08, that is violent or without consent, id. § 22.011 (a)(1), that is in exchange for money, id. § 43.02, or that is committed with a minor, id. §§ 22.011 (a)(2), 21.11. All of these prohibitions apply without regard to whether the actors are of the same or different sexes. Section 21.06, in contrast, applies to non-commercial, consensual, private sexual conduct between two adults—but only if they are of the same sex.

Because it singles out same-sex couples, this Texas law is unlike older legal prohibitions of "sodomy," see infra Point I.A.3, and differs fundamentally from the facially evenhanded Georgia law considered by the Court in Bowers, see 478 U.S. at 188 n.1. The Homosexual Conduct Law was substituted for a facially nondiscriminatory law at a time when many States, prompted by changing views about the proper limits of government power that were reflected in the American Law Institute's Model Penal Code, were revising their criminal codes and completely abandoning offenses like fornication and sodomy. See Model Penal Code and Commentaries §§ 213.2 cmt. 2, 213.6 note (1980). By 1986, 26 States had invalidated their sodomy laws. Bowers, 478 U.S. at 193–94. Today, only nine States retain criminal laws that bar consensual sodomy for all.⁵ Between 1969 and 1989, Texas and seven other States legislatively replaced general laws with laws targeting homosexual couples. See infra at 21–22 & note 15. Four of those discriminatory laws have already been judicially invalidated, and one has been repealed. See id. Now only Texas and two other States criminalize same-sex conduct but not identical different-sex conduct by statute, while one other State has reached the same result through judicial construction of a facially evenhanded law.⁶ Similarly, all but a few States have repealed criminal laws prohibiting fornication. Infra note 18.

Since its enactment, Section 21.06 has narrowly survived several federal and state constitutional challenges. In Baker v. Wade, a federal district court held that Section 21.06 violates the constitutional rights of privacy and equal protection. 553 F. Supp. at 1125. The court rejected the State's claimed justifications for Section 21.06 and found that, even when not enforced, the law results in serious harms to gay persons, including employment discrimination. Id. at 1130, 1146–47. Although the Texas Attorney General withdrew the State's appeal, a divided en banc Fifth Circuit allowed an appeal by an intervenor and reversed, citing the summary affirmance in Doe v. Commonwealth's Attorney, 425 U.S. 901 (1976). Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc).

In the early 1990s, Texas Courts of Appeals declared Section 21.06 unconstitutional in two cases exercising state equity jurisdiction. City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993); State v. Morales, 826 S.W.2d 201 (Tex. App. 1992), rev'd on jurisdictional grounds, 869 S.W.2d 941 (Tex. 1994). In both cases, the inter-mediate appellate court struck down the Homosexual Conduct Law under the Texas Constitution and found that the statute inflicted severe harms beyond the direct threat of criminal convictions. See England, 846 S.W.2d at 959; Morales, 826 S.W.2d at 202. As the State itself stipulated in Morales, Section 21.06 "brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law." Id. at 202–03.

In 1994, Morales was set aside by the Texas Supreme Court as reaching beyond the power of the State's equity courts. 869 S.W.2d at 943–47. The court ruled that constitutional review should occur in the context of a criminal prosecution, with final review in the Texas Court of Criminal Appeals. Id.⁷ In the present criminal case, however, the Court of Criminal Appeals refused to exercise its jurisdiction to review the validity of the law, Pet. App. 1a, 2a, leaving its burdens in effect throughout Texas.