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CWA Files Brief of Amicus Curiae in CWA's most recent brief is in support of the state of Texas.
Concerned Women for America ("CWA") is the nation's largest public policy organization for women. Located in Washington, D.C., CWA is a non-profit organization that provides policy analysis to Congress, state and local legislatures and assistance to pro-family organizations through research papers and publications. CWA seeks to inform the news media, the academic community, business leaders and the general public about family, cultural and constitutional issues that affect the nation. CWA has participated in numerous amicus curiae briefs in the United States Supreme Court, lower federal courts and state courts.
The issues in this case directly affect the constitutional right of the states to exercise their police power to protect public health, safety and morals.
Petitioners and Respondent, through their counsel of record respectively, have granted consent to the filing of this Brief Amicus Curiae in support of Respondent. Their letters of consent are on file with the Clerk of the Court.
Amicus respectfully urges this Court to dismiss the Petition for Certiorari as improvidently granted because the record below does not provide a sufficient basis for the Court to decide the questions on which certiorari was granted. In the alternative, the Court is urged to affirm the decision below because Petitioners cannot sustain their burden to demonstrate that no set of circumstances exists under which the statutes would be valid.
The record below is virtually nonexistent, except for the scant statement that the arresting officers "observed appellants engaged in deviate sexual intercourse." Nothing in the record establishes whether the conduct was consensual, noncommercial, or whether anyone else was present to observe the conduct. Nothing establishes that the arresting officers knew Petitioners' sexual orientation at the time of the arrest or that it mattered to the officers. Furthermore, Petitioners did not establish in the proceedings below that they are homosexuals. Petitioners concede that there are circumstances under which the statues may be validly enforced.
The Texas statutes at issue do not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The statutes are facially neutral in that they prohibit same-sex "deviate sexual intercourse." They criminalize conduct, not status. The statutes do not discriminate on the basis of sexual orientation or sex (gender) because they apply equally to two women or two men regardless of their orientation. Even if the statutes discriminated on the basis of sexual orientation, for equal protection purposes, sexual orientation is not entitled to anything more than rational basis scrutiny.
Homosexuals do not meet the criteria for a "suspect class" because they do not meet the "traditional indicia of suspectness." Homosexuals have enormous political, legal, cultural and economic power according to their own publications. If the Court were to extend heightened protection to homosexual "orientation," the Court would open the door to equal protection claims by numerous groups seeking minority status on the basis of their sexual "orientation." Immutable characteristics, not conduct, should remain the basis for identifying a "suspect" class.
The statutes do not violate a fundamental constitutional right. There is no constitutional zone of privacy that shields same-sex "deviate sexual intercourse" from state regulation. Protecting public health, safety and morals is a rational, if not compelling, reason to prohibit same-sex "deviate sexual intercourse."
The Court is respectfully urged to defer to the police power authority of the State of Texas to do so under the statutes in question. >>> MORE ...
CWA’s Brief of Amicus Curiae in the case John Geddes Lawrence and Tyron Garner v. State of Texas is available for the Web via Adobe Acrobat. The Acrobat Reader is available for free by clicking the button below.
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