Lawrence vs. Texas Supreme Court Decision
Against Morality Laws and For Adult Privacy
9/29/2011 Update - Religious "Compelling interest " and/or Private
Prostitution in the wake of post Lawrence v Texas decision and counter
arguments. From Phoenix private list - after Phoenix Goddess Temple Raid
Also See: 5/17/2008
Freedom is a Constitutional Right? which also has more legal discussion
of the Lawrence v. Texas Decision
12/9/07 Update on Lawrence v. Texas
I am having e-mail exchanges with Montgomery Sibley the attorney for Jeane
Palfrey, aka DC Madam. I am trying to help him with some information
but sadly he says, "... the judge denied our Lawrence v. Texas motion to dismiss."
While judges have been refusing to apply Lawrence vs Texas in commercial sex
cases, that doesn't mean all judges will rule the same. It is still
a strong defense argument to raise.
And more bad news from law.com
by Howard J. Bashman:
'Lawrence' Fails to Open Floodgates
to Unfettered Sexual Freedom
Perhaps owing to the nation's
puritanical origins, in the United States we love to legislate about sex --
even sex between consenting adults or between consenting adults and inanimate
In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas
invalidating a Texas ban on homosexual sodomy between willing adult participants,
many wondered whether other laws regulating sexual conduct between consenting
adults would be vulnerable to legal challenge.
If two recently issued appellate court rulings are any indication, the post-Lawrence
fears of those concerned that public morality would no longer remain a valid
basis for legislating consensual sexual conduct have proven to be overblown.
Instead, these rulings demonstrate that, even where consenting adults are
involved, Lawrence has failed to usher in an "anything goes" era, free from
The Supreme Court of Ohio rejected a man's challenge to a state law that criminalizes
sexual conduct between a stepparent and stepchild even if both are adults
and unrelated by blood, and both willingly participate in the conduct. In
seeking to challenge the law as unconstitutional as applied to his case, the
stepfather argued that Ohio had no legitimate interest in regulating sex between
However, Ohio's highest court disagreed by a vote of 6 to 1. The majority's
opinion observed that "Lawrence did not announce a 'fundamental' right to
all consensual adult sexual activity, let alone consensual sex with one's
adult children or stepchildren." The Ohio justices found that, while the Texas
statute in Lawrence was unconstitutional under the so-called "rational basis"
test, a rational basis existed for Ohio to prohibit even consensual sex between
a stepparent and an unrelated stepchild.
The legitimate interest that the Ohio court recognized was the state's interest
in protecting the family unit and family relationships. The Supreme Court
of Ohio went on to recognize that if the stepfather and stepdaughter wished
to have the ability to engage in sexual relations free from government regulation,
they could do so -- if the stepfather divorced the stepdaughter's biological
(Dave notes that Wikipedia points out, a stepparent is a "legal stranger"
related to family legal rights in most of the U.S. The defendant was sentenced
to 120 days in prison and 3 yrs probation and classified him as a sex offender.
The decision is at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-606.pdf
Some local news coverage of the Ohio ruling noted that the stepfather could
still seek appellate review from the U.S. Supreme Court based on his argument
that Lawrence v. Texas requires the invalidation of his conviction. But I
would be very surprised if the U.S. Supreme Court saw any merit in that argument
or was even interested in hearing this case on the merits.
Also - on Valentine's Day (2007) , as coincidence would have it -- the 11th
U.S. Circuit Court of Appeals issued a decision that may represent the last
gasp in an effort to invalidate an Alabama law prohibiting the commercial
distribution of sex toys. The lone issue remaining for consideration in the
case's latest visit to the 11th Circuit was "whether public morality remains
a sufficient rational basis for the challenged statute after the Supreme Court's
decision in Lawrence v. Texas."
The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is
indistinguishable from Lawrence -- just as in that case, in this case there
is no legitimate state interest, including public morality, that supports
the challenged Alabama statute."
But the 11th Circuit disagreed, observing that "while the statute at issue
in Lawrence criminalized private sexual conduct, the statute at issue in this
case forbids public, commercial activity."
Thus, the 11th Circuit ruled, "we find that public morality survives as a
rational basis for legislation even after Lawrence, and we find that in this
case the State's interest in the preservation of public morality remains a
rational basis for the challenged statute." (Decision at http://www.ca11.uscourts.gov/opinions/ops/200611892.pdf
For that reason, the court affirmed the Alabama federal district court's most
recent ruling in the case and refused to invalidate that state's statute prohibiting
the commercial distribution of sex toys.
In the immediate aftermath of Lawrence v. Texas, legitimate questions arose
concerning the likely fate of other laws seeking to regulate the sexual conduct
of consenting adults. Now, nearly five years later, it appears that the impact
of the Lawrence ruling has been far more limited than many had initially hoped
-- or feared.
Dave says: The idea of Lawrence v. Texas that laws can not be based on morality
and the right to private adult sexuality are great ideas, but not binding
on lower Courts with different facts. Who knows how the current "Bush" Supreme
Court would rule today. The Supreme Court decision however continues to be
a great source for arguing to change laws that spend precious LE and Court
resources chasing morality crimes conducted in private.
Most polls say citizens agree.
But many believe it would be political suicide for a politician in most cities/states/Congress
to take this stand to decriminalize private consenting adult sexuality due
to the uproar that would come from the religious conservatives and anti-sex
August 2007 Update click link
PALFREY IS USING A LAWRENCE
Vs Texas CONSTITUTIONAL DEFENSE!
May 2006 Updates
Lawrence vs. Texas Getting More Attention by Judges
We are finally starting to
see some cases based on Lawrence vs. Texas which eventually could lead to
prostitution laws being unconstitutional for private consenting adult sexworkers,
more rights for swingers as polyamory relationships.
Bigamy (Polygamy) and Lawrence
While the current case is a loss for a bigamy appeal in the Utah Supreme Court,
some of the reasons actually emphases the difference between bigamy and other
private consenting adult sexuality which is a constitutional right under Lawrence
Regarding Lawrence v Texas the Utah Supreme Court, takes pains to limit the
opinion's reach to decriminalizing private and intimate acts engaged in by
consenting adult gays and lesbians (why should it ONLY apply to gays and lesbians
the concept of privacy is the same for heterosexuals) . In fact, the Court
went out of its way to exclude from protection conduct that causes 'injury
to a person or abuse to an institution the law protects.'" The court reason
that since the bigamy law protects the institution of marriage, the state
could take action to prosecute conduct inimical to that protected institution.
But the opinion reveals a split in the court over how to deal with the various
questions presented, which included, in addition to due process privacy, equal
protection and free exercise of religion, as well as a vigorous argument over
the actual reach of the state law, which applies both to plural marriages
and "purported" marriages. A concurring opinion and a dissenting opinion by
the Chief Justice signal concerns by some members of the court about the state's
intervention in family matters.
The defendant in this case raised as part of his defense that his multiple
marriages were religious marriages, not civil marriages, and thus could not
be criminalized by the state as "bigamy". The Chief Justice agreed with this
argument, finding that the "purports to marry" prong of the bigamy statute
raised constitutional questions.
In particular, relating to Lawrence, the Chief Justice writes, "I do not believe
that the conduct at issue threatens the institution of marriage, and I therefore
cannot agree that it constitutes in 'abuse' of that institution. . . The Supreme
Court in Lawrence... rejected the very notion that a state can criminalize
behavior merely because the majority of its citizens prefers a different form
of personal relationship."
After referring to a recent Virginia Supreme Court decision striking down
that state's fornication law based on Lawrence, the Chief Justice stated,
"In my opinion, these holdings correctly recognize that individuals in today's
society may make varied choices regarding the organization of their family
and personal relationships without fearing criminal punishment."
Extreme Associates Internet porn case
The Supreme Court has denied cert (refused review) in the Extreme Associates
appeal of a decision by the U.S. Third Circuit Court of Appeals. Basically,
that means the obscenity charges in the high-profile federal case against
Rob Black and Lizzy Borden are reinstated and the matter will go back to U.S.
District Court Judge Gary Lancaster's western Pennsylvania court for trial.
Extreme Associate attorneys
had formed a defense based on privacy rights as defined in Lawrence v. Texas
and convinced Judge Lancaster of their logic. Lancaster dismissed the obscenity
charges, which resulted in a huge national uproar, with prominent U.S. Senators
Owen Hatch (R-UT) and Sam Brownback (R-KS) publicly castigating Lancaster
and setting up a series of high-profile committee hearings, largely in reaction
to the ruling.
On the government appeal, the Third Circuit said that Lancaster had reached
too far, and that only the Supreme Court could change obscenity law to that
extent. The Third Circuit did not rule on the merits of the privacy rights
argument, however, and the denial of cert by the Supreme Court says nothing
about how the high court might rule if the case goes back to the Supremes
Judge Lancaster of the western
Pennsylvania federal court in dismissing the Extreme Associates Internet porn
case, quoted as I have from Lawrence v Texas this very significant important
sentience. The judge said, "The Lawrence v. Texas decision, Lancaster wrote,
"can be reasonably interpreted as holding that public morality is not a legitimate
state interest sufficient to justify infringing on adult, private, consensual,
sexual conduct even if that conduct is deemed offensive to the general public's
sense of morality."
However the government has
appealed the Extreme case but the case may be on hold until the result of
another case COPA (Child Online Protection Act or Ashcroft vs. American Civil
Liberties Union) is resolved after being at the Supreme Court twice and sent
back to lower courts. The huge issue here that so so important for the
U.S. Government (Bush's religious mafia) to win is what "community" the community
standards rule for decency applies to. The Bush Administration
is arguing that when some postal employees obtained access to a password protected
material they would be the "community" that was offended! Yep that is
what the government is spending the big legal bucks on.
In the mix is the Supreme Courts 1969 ruling in Stanley vs. Georgia which
said that citizens are constitutionally free to own obscene materials in the
privacy of their homes. But later decisions say they can't buy or sell such
materials based on the assumption that the government had some vested interest
in promoting public morality - an interest which the Supreme Courts most conservative
justice, Antonin Scalia, claimed was destroyed by the Lawrence vs. Texas decision.
i.e. morality laws are unconstitutional.
HOWEVER, justice is expensive
especially when your fighting the unlimited financial resources of Bush's
religious mafia (via his Justice Dept). The legal costs for Extreme
Associates have exceeded $250,000 and the case was only able to be financed
with the help of an anonymous donor from a Free Speech Coalition member who
had to pay the printing costs for Extreme's Supreme Court petition. And the
legal battle now begins again since the Supreme Court sent the case back to
the lower Court.
While many in the adult industry
think Extreme videos were well.. extreme, and many dislike the owner, the
issues raised by their attorney's are vitally important to all adult content
Credits: Some of the above
extracted from "Supreme Court Rejects Extreme Petition" by Mark Kernes
My extensive review from conference
with attorneys on Lawrence v Texas is at
While a lot of it is about swinging, their is also discussion of how private
sexwork laws may be unconstitutional using the same arguments
From 2005: LAWRENCE vs. TEXAS CASE DOUBLE WIN!
Will Supreme Court Rule on Dildos?
Can same arguments be made for private consenting adult sexwork?
1) Extreme Associates Case Dismissed; Obscenity Laws Ruled Unconstitutional
The Lawrence vs. Texas case has now been extended to adult entertainment per
a Federal judge. "After Lawrence, the government can no longer rely on the
advancement of a moral code, i.e., preventing consenting adults from entertaining
lewd or lascivious thoughts, as a legitimate, let alone a compelling state
interest." However the case will probably be appealed to the Federal Appellate
Court and perhaps the Supreme Court.
2) The Virginia Supreme Court Strikes Down the State's Fornication Law, Indicating
that Other States' Antiquated Laws Will Fall if Challenged
Jan. 25, 2005
In June 2003, in Lawrence v. Texas, the United States Supreme Court struck
down Texas' ban on same-sex sodomy, holding that such a law is an unconstitutional
infringement upon an individual's right to privacy. Last week, the Virginia
Supreme Court ruled that, given the precedent of Lawrence, the state's criminal
ban on fornication could not survive.
The Virginia court considered the "public reasons" offered to justify the
fornication ban - to protect the public health and to encourage that children
be born into marital families. But, under Lawrence, such reasons are clearly
insufficient to justify a governmental intrusion on personal liberty of this
And in Alabama the law outlawing sex toys cert has been requested of the Supreme
Court after the law was struck down in trial, but upheld by the 11th Circuit
Court of Appeals.
As I reported from last years meeting with First Amendment Lawyers, private
sexwork laws could be unconstitutional on the same basis. See Lawrence vs
Texas - Reed Lee, with Chicago law firm of J.D. Obenberger and Lawrence vs.
Texas: the Supreme Court and Our Right to Have Sex -Jim Turner, Attorney Swankin
and Turner sections of longer report which includes swinging issues at
As Reed Lee said, "While a commercial sex transaction such as swing clubs
or prostitution, was not directly addressed, there is a basis for argument
that intimate relationships are protected whether commercial or not." There
is much more discussion of prostitution included in the above link.
These cases have positive ramifications for sexwork but they still face challenges
by Bush appointed Federal Appellate judges and worst of all any change in
the Supreme Court. The Supreme Court framed the Lawrence case, quite broadly,
as asking "whether the petitioners were free as adults to engage in the private
conduct in the exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution.
The Lawrence court concluded that the constitution protects the right of adult
individuals to conduct consensual personal relationships "in the confines
of their homes and their own private lives." This right includes the "overt
expression" of the relationship in "intimate conduct."
Morality - even a longstanding view that a practice is immoral -- is not a
sufficient justification to uphold a law prohibiting particular conduct. Individual
decisions by married and unmarried persons about "intimacies of their physical
relationship, even when not intended to produce offspring" are a form of "liberty"
under the Due Process Clause.
The landmark sexual freedom case Lawrence vs. Texas was a 5-4 decision by
the Supreme Court. The right to sexual privacy and morality no longer being
a basis for laws which was expressed in the Lawrence vs. Texas decision, could
be reversed by any change on the Supreme Court.
My Discussion of Using the Extreme Associates Arguments Against Private Sexwork
Laws is at
What You Need to Know About the Extreme Associates Case
By: Mark Kernes - Brief Highlights of extensive article January 2005 at
The Virginia Supreme Court Strikes Down the State's Fornication Law,
Indicating that Other States' Antiquated Laws Will Fall if Challenged
including: The Holding of Lawrence: A Right of Adults to Engage in Private
Sexual Conduct at
Will Supreme Court Rule on Dildos? - Alabama case based on Lawrence vs Texas
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