Scalia’s Parade of Horribles in Lawrence v. Texas Corey Rayburn Yung Assistant Professor of Law

1. Scalia’s Parade of Horribles in Lawrence v. Texas Corey Rayburn Yung Assistant Professor of Law John Marshall Law School

2. Scalia’s Dissent • “Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"--which it undoubtedly is--and proceeds to apply an unheard-of form of ration-al-basis review that will have far-reaching implications beyond this case.” at 586.

3. Scalia’s Dissent (cont.) “Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation. [Prior decisions have relied upon Bowers in] … upholding Alabama's prohibition on the sale of sex toys [,] … upholding the federal statute and regulations banning from military service those who engage in homosexual conduct[, and]… [upholding] Indiana's public indecency statute…. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.” at 589-90.

4. Scalia’s Dissent (cont.) “Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.” at 592. “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ – the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity…. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.” at 599 (internal citation omitted).

5. Scalia’s Dissent (cont.) “That review is readily satisfied here by the same rational basis that satisfied it in Bowers – society's belief that certain forms of sexual behavior are ‘immoral and unacceptable.’ This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner – for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.” at 600 (internal citation omitted).

6. Scalia’s List • Sex Toys • Gays in the Military • Public Indecency • Bigamy • Gay Marriage • Adult Incest • Prostitution • Masturbation • Adultery • Fornication • Bestiality • Obscenity • Heroin Prohibition • Labor Laws

7. Testing Scalia’s List According to Lexis-Nexis Shepard’s Report, as of December 30, 2008, there have been 197 citations to the Court’s opinion in Lawrence labeled as Distinguished, Followed, Concurring Opinion, Dissenting Opinion, Explained, Harmonized, or Questioned Precedent. There are a total of 414 citing opinions.

8. Citations to Lawrence v. Texas Variety of issues cited beyond Scalia’s list including abortion, campaign finance, cruel and unusual punishment, medical privacy, defamation, entrapment, zoning, child molestation, supervised release conditions, habeas corpus review of a death sentence, restrictions on sex offenders, asylum claims, voir dire questions, employment discrimination, child abuse reporting, access to medical treatment, employee benefits, wetland protection, and euthanasia.

9. Sex Toys Reliable Consultants v. Earle, 538 F.3d 355 (5th Cir. 2008) – left intact a panel decision that relied on Lawrence to strike down a sex toy distribution ban Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007) – en banc court found that Lawrence was not in conflict with Alabama’s sex toy distribution law

10. Gays in the Military Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) – Lawrence did not invalidate “Don’t Ask, Don’t Tell” Witt v. Department of Air Force, 527 F.3d 806 (9th Cir. 2008) – Lawrence required higher scrutiny for “Don’t Ask, Don’t Tell” than applied by district court and remanded the issue

11. Gays in the Military (cont.) Loomis v. U.S., 68 Fed. Cl. 503 (2005) – Lawrence did not create constitutional problem for sodomy prohibition; U.S. v. Marcum, 60 M.J. 198 (App. Armed Forces 2004); U.S. v. Smith, 66 M.J. 556 (C. G. Ct. Crim. App. 2008); U.S. v. Stephens, 2007 CCA LEXIS 428 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2007); U.S. v. Habian, 2007 CCA LEXIS 352 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2007); U.S. v. Velaquez, 2007 CCA LEXIS 303 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2007); U.S. v. Hurst, 2007 CCA LEXIS 56 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2007); U.S. v. Flores, 2006 CCA LEXIS 350 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Barrera, 2006 CCA LEXIS 215 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Banker, 63 M.J. 657 (A. F. Ct. Crim. App. 2006); U.S. v. Machado, 2006 CCA LEXIS 132 (A. F. Ct. Crim. App. 2006); U.S. v. McCoy, 2006 CCA LEXIS 85 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Teague, 2005 CCA LEXIS 292 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Bart, 61 M.J. 578 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2005); U.S. v. Christian, 61 M.J. 560 (U.S. Navy-Marine Corps. Ct. of Crim. App.2005); U.S. v. Abdul-Rahman, 59 M.J. 924 (C. G. Ct. Crim. App. 2004)

12. Public Indecency 832 Corporation v. Gloucester Township, 404 F. Supp. 2d 614 (D. N.J. 2005) – rejected Lawrence challenge to “adult entertainment” regulation Commonwealth v. Can-Port Amusement Corp., 19 Mass. L. Rep. 211 (Mass. Sup. Ct. 2005) – Lawrence did not create right to have public sex at adult movie theater Singson v. Commonwealth, 621 S.E.2d 682 (Ct. App. Va. 2006) – bathroom sex sting and prosecution for solicitation and crimes against nature did not infringe Lawrence right because acts were public Tjan v. Commonwealth, 621 S.E.2d 669 (Ct. App. Va. 2005) – sodomy law could be used to prosecute overture for oral sex in public place

13. Bigamy • Cook v. Swensen, 394 F. Supp. 2d 1329 (D. Utah 2005) – Lawrence did not create right to bigamy or polygamy; Arizona v. Fischer, 2008 Ariz. App. LEXIS 125 (Ariz. Ct. App. 2008); State v. Holm, 137 P.3d 726 (Utah 2006)

14. Gay Marriage Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) – Lawrence did not guarantee a right for gays to marry; Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Ca. 2005); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005); Standhardt v. Superior Court, 77 P.3d 451, 2003 (Ariz. Ct. App. 2003) Lofton v. Secretary of the Department of Children and Family Services, 358 F.3d 804 (11th Cir. 2004) – Lawrence did not give gay couples the right to adopt even in case where couple had long term foster parent relationship with child In re Kandu and Kandu, 315 B.R. 123 (W.D. Wash. Bank. 2004) – Lawrence did not find due process right that invalidated federal DOMA in Canadian marriage case In re Marriage Cases, 183 P.3d 384, 2008 Cal. LEXIS 5247 (Cal. 2008) – found right to marry on Equal Protection grounds and cite to Lawrence was not dispositive

15. Gay Marriage (cont.) Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (Conn. 2008) – Civil unions did not afford same equal protections as marriage; the cites to Lawrence were not dispositive; Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005); Conaway v. Deane, 932 A.2d 571 (Md. 2007) Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003) – unclear what role Lawrence had given the heavy reliance on broader Massachusetts constitution protection Lewis v. Harris, 908 A.2d 196 (N.J. 2006) – court found marriage right premised on Equal Protection in state constitution Samuels v. State Department of Health, 29 A.D.3d 9 (N.Y. 2006) – Lawrence played a significant, but unclear role in finding for a “redefinition” or marriage; Andersen v. King County, 138 P.3d 963 (Wash. 2006)

16. Adult Incest Muth v. Frank, 412 F.3d 808 (7th Cir. 2005) – Lawrence did not protect incest between two adults when defendant had been convicted for marrying his younger sister People v. Scott, 157 Cal. App. 4th 189 (Cal. App. 4th Dist. 2007) – Lawrence did not give right to adult incest; State v. Freeman, 801 N.E.2d 906 (Ct. App. Oh. 2003); Beard v. State, 2005 Tenn. Crim. App. LEXIS 568 (Ct. of Crim. App. Tenn. 2005) State v. John M., 894 A.2d 376 (Conn. App. 2006) – court overturned adult incest conviction where father had sexual relations with seventeen year old daughter because statute distinguished between “heterosexual” and “homosexual” relations relying heavily on Lawrence State v. Lowe, 861 N.E.2d 512 (Ohio 2007) – Lawrence did not protect consensual relations between step-parent and step-child

17. Prostitution Cawood v. Haggard, 327 F. Supp. 2d 863 (E.D. Tenn. 2004) – Lawrence did not protect an attorney’s “relationship” with a client whereby the lawyer received sexual services in exchange for a reduced bill U.S. v. Thompson, 458 F. Supp. 2d 730 (N.D. Ind. 2006) – Lawrence did not invalidate prostitution laws, including the Mann Act U.S. v. Palfrey, 499 F. Supp. 2d 34 (D. D.C. 2007) – Lawrence did not protect commercial activity of prostitution; State v. Freitag, 130 P.3d 544 (Ariz. Ct. App. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007) State v. Thomas, 891 So. 2d 1233 (La. 2005) – court reversed lower court finding that prostitution conviction for "unnatural oral copulation for compensation” was impermissible under Lawrence State v. Pope, 608 S.E.2d 114 (Ct. of App. N.C. 2005) – Lawrence did not protect solicitation of a “crime against nature”

18. Masturbation No cases

19. Adultery • U.S. v. Stirewalt, 60 M.J. 297 (App. Armed Forces 2004) – liberty interest in Lawrence not implicated by military’s ban on adultery; U.S. v. McClelland, 2006 CCA LEXIS 6 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Orellana, 62 M.J. 595 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2006); U.S. v. Myers, 2005 CCA LEXIS 44 (U.S. Navy-Marine Corps. Ct. of Crim. App. 2005)

20. Fornication Anderson v. Morrow, 371 F.3d 1027 (9th Cir. 2003) – Lawrence did not invalidate law against having sexual relations with someone mentally unable to consent Crooks v. Kline, 2007 U.S. Dist. LEXIS 23392 (D. Kan. 2007) – Lawrence did not invalidate Kansas statutory rape law State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007) – no Lawrence right to consensual sexual relations between teacher and students Hubbard v. Indiana, 849 N.E.2d 1165 (Ind. Ct. App. 2006) – Lawrence did not protect civilian employee working at work release facility having off-duty relations with “inmate” State v. Musser, 721 N.W.2d 734 (Iowa 2006) – Lawrence did not protect defendant who had consensual relations but did not disclose HIV+ status State v. Mogler, 719 N.W.2d 201 (Minn. 2006) – Lawrence did not protect police officer having consensual sex while on duty from criminal conviction

21. Fornication (cont.) State v. Van, 688 N.W.2d 600 (Neb. 2004) – Lawrence did not protect BDSM relationship where Nebraska statutes did not permit consensual assaults In the Matter of R.L.C., 643 S.E.2d 920 (N.C. 2007) – Lawrence did not prevent “crimes against nature” statute from being used against oral sex between 12- and 14-year olds State v. Whiteley, 616 S.E.2d 576 (Ct. of App. N.C. 2005) – “crimes against nature” statute did not infringe “narrow” right in Lawrence Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) – court reversed judgment of lower court that held statute punishing dissemination of STD’s was unconstitutional in consensual relationship McDonald v. Commonwealth, 630 S.E.2d 754 (Ct. App. Va. 2006) – Lawrence did not protect minors so they could be prosecuted under state sodomy statute

22. Bestiality No cases

23. Obscenity U.S. v. Extreme Associates, 352 F. Supp. 2d 578 (D. Pa. 2005) – Lawrence prevented “public morality” being used as a basis to regulate private consensual relations in dismissing indictment U.S. v. Sherr, 400 F. Supp. 2d 843 (D. Md. 2005) – court rejected defendant’s argument that child pornography distribution was protected after Lawrence; U.S. v. Peterson, 294 F. Supp. 2d 797 (D. S.C. 2003); U.S. v. Bach, 400 F.3d 622 (8th Cir. 2005); U.S. v. Handley, 564 F. Supp. 2d 996 (S.D. Ia. 2008) U.S. v. Whorley, 386 F. Supp. 2d 693 (E.D. Va. 2005) – Lawrence did not give right to distribute obscene images via email U.S. v. Jenkins, 2007 U.S. Dist. LEXIS 25420 (N.D. Ga. 2007) –Lawrence did not allow defendant to send obscene video via the Internet to a teenager

24. Obscenity (cont.) Ravalli County v. Erickson, 2006 Mont. Dist. LEXIS 1070 (Dist. Ct. Mont. 2006) – obscenity statutes did not limit rights in Lawrence State v. Senters, 699 N.W.2d 810 (Neb. 2005) – Lawrence did not protect consensual recording of 28-year old and 17-year old having sex State v. Jenkins, 2004 Ohio 7131 (Ct. of App. Oh. 2004) – Lawrence did not extend to commercial sale of obscene materials Varkonyi v. State, 2008 Tex. App. LEXIS 3353 (Ct. of App. Tex. 2008) – Lawrence did not protect defendant who distributed video depicting bestiality Ex Parte Valeria Joyce Dave, 220 S.W.3d 154 (Ct. of App. Tex. 2007) – no right to promote obscene videos

25. Heroin Prohibition • State v. Beecraft, 727 N.W.2d 375 (Ct. App. Wisc. 2006) – Lawrence did not give defendant right to possess marijuana

26. Scalia’s Prognostication Report Card Sex Toys – C Gays in the Military – F Public Indecency – F Bigamy – F Gay Marriage – C- Adult Incest – F Prostitution – F Masturbation – Inc.? Adultery – F Fornication – F Bestiality – Inc. Obscenity – D Heroin Prohibition – F

27. Defining the Lawrence Right • No sea change • Scope is narrow • Four Touchstones • Non-Commercial • Private • Consensual • Adult

28. Defining the Lawrence Right (cont.) • Inconsistent Application • Commercial distribution of sex toys might be protected; commercial distribution of sex is not • Sodomy laws impermissible except in military, against conduct by minors, and against public solicitation or conduct • STD prevention might be a legitimate government purpose which effectively allows any sexual activity regulation • Four touchstones apply except when they don’t

29. Examining Dissents • Parades of Horribles as Signaling Devices • Which way does the signal go? • Dissents that shape majority opinions • Do certain dissenters have a greater effect than others?