Brief of Petitioners

As the experience of Lawrence and Garner vividly illustrates, Section 21.06 puts the State of Texas inside its citizens' homes, policing the details of their most intimate and private physical behavior and dictating with whom they may share a profound part of adulthood. Texas has enacted and enforced a criminal law that takes away—from same-sex couples only—the freedom to make their own decisions, based upon their own values and relationships, about the forms of private, consensual sexual intimacy they will engage in or refrain from. The State defends this law only by saying the majority wants it so. Texas asserts a power of the majority to free itself from state dictates about private, consensual sexual choices, while using the criminal law to condemn and limit the choices of a minority.

This law and its application to Petitioners violate both the guarantee of equal protection and fundamental liberties safeguarded by the Fourteenth Amendment. Petitioners explain below why the equality claim and the liberty claim are each well rooted in the Constitution. The Court, however, need not rule on both constitutional violations if it chooses to focus on one infirmity rather than the other. Petitioners discuss the fundamental liberty claim under the Due Process Clause first, because even if the Court were not to reach that issue, a full appreciation of the personal interests affected by Section 21.06 also illuminates and informs the equal protection analysis that follows.

Fundamental liberty and privacy interests in adults' private, consensual sexual choices are essential to the ordered liberty our Constitution protects. The State may not, without overriding need, regiment and limit this personal and important part of its citizens' lives. More so than in 1986, when Bowers v. Hardwick was decided, it is clear today that such a fundamental right is supported by our basic constitutional structure, by multiple lines of precedent, and by a decisive historical turn in the vast majority of the States to repudiate this type of government invasion into private life. The well-established fundamental interests in intimate relationships, bodily integrity, and the sanctity of the home all converge in the right asserted here. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). That right belongs to all Americans, including gay men and lesbians, and should be shielded from Section 21.06's unjustified invasion. Much more is needed to outweigh fundamental individual interests than the majority's preferences. Indeed, the Fourteenth Amendment's protection of liberty exists to guard against the very impulse Texas acted on here. Principles of stare decisis do not, in these circumstances, justify adherence to Bowers.

Texas also has violated the Fourteenth Amendment's guarantee of equal protection of the laws. The Homosexual Conduct Law creates classes of persons, treating the same acts of consensual sexual behavior differently depending on who the participants are. By this law, Texas imposes a discriminatory prohibition on all gay and lesbian couples, requiring them to limit their expressions of affection in ways that heterosexual couples, whether married or unmarried, need not. The law's discriminatory focus sends the message that gay people are secondclass citizens and lawbreakers, leading to ripples of discrimination throughout society. Such a discriminatory law cannot satisfy even the minimal requirement that a legislative classification must be rationally related to a legitimate State purpose. See Romer, 517 U.S. 620. The bare negative attitudes of the majority, whether viewed as an expression of morality, discomfort, or blatant bias, cannot take away the equality of a smaller group. See id.; United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985).