Lawrence v. Texas (02-102), Stogner v. California (01-1757), and United States v. American Library Assn (02-361)

June 30, 2003 Supreme Court Update

Greetings Court fans!
Finally, I'm back! Thanks for your patience. We have a lot of ground to cover -- 6 decisions and 2 order lists -- so I'll split it up into a couple emails to reduce your reading load. The opinions covered in this email all deal, in one way or another, with sex or sex abuse.
I'll start with Lawrence v. Texas (02-102), a case that not only generated significant headlines, but also prompted a rigorous debate (at least in some circles) on whether Justice Kennedy's opinion torpedoed or solidified his quest to be Chief Justice (should the current Chief ever retire!). Some think that his opinion made him un-selectable by the current President, while others believe that the opinion made him uncommonly attractive as a "confirmable" candidate for Chief. I'll let you decide. Texas law makes it a crime for two persons of the same sex to engage in "deviate sexual intercourse" (for our purposes, sodomy), but does not criminalize identical behavior between two persons of the opposite sex. (Those of you with good filtering software will never get this email.) Police entered a private residence, observed two men (petitioners) engaged in "a sexual act," and charged them with violating the statute.
In classically Kennedy-esque high-flying language, Kennedy (joined by Stevens, Souter, Ginsburg and Breyer), held the Texas statute unconstitutional under the substantive due process clause, and in so doing, expressly overruled Bowers v. Hardwick (1986). Kennedy began by tracing the history of "substantive due process" in the Court's prior cases to support the claim that the Bowers Court had failed to understand the liberty interest at stake. The liberty interest is not just a right to engage in specific sexual acts, but rather a more fundamental right to engage in private sexual conduct in the home. Kennedy continued by reconsidering the historical evidence relied on in Bowers. According to Kennedy, there is no longstanding history of laws directed at homosexual conduct as a distinct matter, and laws prohibiting sodomy have not generally been enforced against consenting adults acting in private. In other words, the historical grounds relied on in Bowers are not as definitive as that Court would have had us believe. Of course, that Court's broader point -- that "powerful voices" have condemned homosexual conduct for centuries -- cannot be denied, but that does not answer the question. "The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code." In any event, the past half century has demonstrated an "emerging awareness" that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," and this emerging awareness should have been evident when Bowers was decided. Even if the Bowers Court missed it, subsequent decisions -- Planned Parenthood v. Casey and Romer v. Evans -- have cast the Bowers decision in doubt. Kennedy noted that they could have decided the case on equal protection grounds, but chose not to, in part because that would leave the substantive validity of the statute -- and the validity of Bowers -- unexamined, an outcome that would invite further discrimination against homosexuals and further demean their lives. Finally, Kennedy explained that stare decisis does not command deference to Bowers. The foundations for the decision have been undermined and there has been no institutional or societal reliance on the decision. Kennedy closed his opinion with a recitation of the limits of the holding -- the case doesn't involve coercion, minors, public conduct, gay marriage, etc. It only involved two adults engaged in consensual sexual conduct. And this, according to Kennedy, is protected by the Constitution. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
O'Connor concurred in the judgment. She would not overrule Bowers, but rather would decide the case on equal protection grounds: the statute treats the same conduct differently based solely on the participants. According to O'Connor, the Court has held laws unconstitutional under rational basis review when, as here, the challenged legislation inhibits personal relationships. Here, the Texas law fails rational basis review because it makes homosexuals unequal in the eyes of the law, and moral disapproval of a group is an insufficient basis to justify the law.
Scalia (joined by the Chief and Thomas) dissented, opening his opinion with a quote from Casey: "Liberty finds no refuge in a jurisprudence of doubt." He thinks the Court should not have reconsidered Bowers, and pointedly compares this case with Casey, where the Court relied heavily on stare decisis to uphold the right to an abortion. This decision, according to Scalia, "expose[s] Casey's extraordinary deference to precedent for the result-oriented expedient that it is." Turning to the merits of the question before the Court, he chastises the Court for invalidating a state law without an express finding that the law infringed a "fundamental liberty interest," the usual standard for substantive due process claims. Scalia reviews the history and prior cases cited in the majority opinion and finds the majority's analysis lacking. He further finds no support for the claim that there is no rational basis for the law -- the law furthers the belief of its citizens that certain conduct is immoral, and this is a valid state interest. Scalia concludes his substantive analysis by rejecting the equal protection argument adopted by O'Connor. Finally, Scalia returns to his "results-oriented" theme: the Court's decision adopts the "homosexual agenda" and takes sides "in the culture war." Scalia carefully notes that he has nothing against homosexuals; he would just make them seek change in the law through normal democratic processes, not the courts. Because the Court has acted, the door has been effectively opened to gay marriage. Thomas wrote a separate dissent to note that the Texas law is "uncommonly silly," but that it is not his role, as judge, to impose that view on the citizens of Texas.
The citizens of California also suffered a loss when the Court, in Stogner v. California (01-1757), struck down a California law that enacted a new statute of limitations for certain sex crimes. Stogner allegedly committed child sexual abuse between 1955 and 1973, when the statute of limitations for such crimes was 3 years. In 1998, California enacted a new statute of limitations that allowed resurrection of the time-barred claims against Stogner, and he claimed that this law violated the ex post facto clause. The Court, in an opinion by Breyer (joined by Stevens, O'Connor, Souter and Ginsburg), agreed. First, the statute threatens the kinds of harms the ex post facto clause seeks to avoid -- unfair retroactive effects, arbitrary government action. Second, the statute falls within the categorical description of ex post facto laws set down by Justice Chase in Calder v. Bull more than 200 years ago. (Under the Court's ex post facto clause jurisprudence, the Chase opinion is the definitive categorization of ex post facto laws.) Specifically, the law falls within "category 2": it "aggravates a crime or makes it greater than it was when committed." (Breyer goes into considerable detail -- based on history and prior cases -- to explain why this statute falls in that category. I'll spare you.) Third, commentators, legislators, and courts have long believed that the ex post facto clause forbids resurrection of time-barred prosecutions. Breyer closes the opinion with a lengthy response to the dissent. This is more parsing of history and old cases. I'll leave it to you to read the opinions and decide for yourself which opinion is more faithful to history. Kennedy dissented, joined by the Chief, Scalia and Thomas. He challenges Breyer's reading of Calder, and his understanding of history and prior cases. I'm sure legal historians will find these opinions riveting. Me? I find them dry as toast, and so I'm moving on to the next opinion.
Continuing the sex theme, I turn next to United States v. American Library Assn (02-361), a decision handed down last Monday. In this case, the Court upheld a federal law that prohibits public libraries from receiving federal aid to provide internet access unless the libraries install software to block obscene or pornographic images and to prevent minors from accessing materials harmful to them. Six justices voted to uphold the statute, although there was no majority opinion. The Chief (joined by O'Connor, Scalia and Thomas) noted that Congress may attach conditions on the receipt of federal aid, but that it may not induce aid recipients to engage in acts that would be unconstitutional. Here, the libraries' actions in "filtering" internet content would not be unconstitutional. Libraries contribute to learning and cultural enrichment, but to achieve these goals, they must, and traditionally have, exercised broad discretion to decide what material to provide for their patrons. In analogous circumstances, the Court has upheld the government's broad discretion to make content-based judgments in deciding what speech to make available to the public. In those cases, the Court found the First Amendment "public forum" analysis inapplicable, and it is similarly inapplicable here. Internet access is not a "public forum" nor a "designated public forum." The fact that some software filters "overblock" and thus might restrict access to constitutionally acceptable speech, is not a problem because library patrons may have the filtering software disabled with very little problem. Finally, the Chief rejects the argument that the restriction on federal aid is an "unconstitutional condition." The statute does not penalize libraries for choosing not to install software filters; it merely reflects Congress' decision not to subsidize this choice. Kennedy concurred in the judgment. According to Kennedy, there is nothing to this case if adult users may have filtering software disabled with little trouble. If specific parties could show that this was not true, that might be the grounds for an as-applied challenge to the statute, but it is not an issue here. Breyer concurred in the judgment. He would not apply traditional "strict scrutiny" to what is effectively a library's decision about what to include in its collection, but rather would apply a form of "heightened" scrutiny applicable where the central question is whether the harm to speech related interests is disproportionate in light of the justifications for the statute and in light of potential alternatives. Applying this standard, the federal law stands. Restricting access to obscenity, child pornography, etc. is a compelling government interest, and the act contains exceptions (allowing the disabling of the software) that limit speech-related harm.
Stevens dissented. While he believes that libraries can install filtering software, he does not believe it constitutional for Congress to mandate such software. The mandated filtering software has significant defects -- it both overblocks and underblocks relevant material. These problems are significant because there are a variety of less restrictive alternatives to achieve the same ends. This violates the First Amendment. Moreover, the federal law imposes an unconstitutional condition on federal funding: it conditions receipt of federal funding on the restriction of First Amendment rights. Because the government could not penalize a library for failing to install filtering software, it cannot deny federal funding for the same conduct. Souter (joined by Ginsburg) wrote a separate dissent. He agrees with Stevens that the law imposes an unconstitutional condition on federal funding, but he also believes the law an invalid exercise of the Spending Power because it mandates actions by recipients that would violate the First Amendment if those actions were undertaken independently by the recipients. He explains (in considerable detail) why he disagrees with the plurality's characterization of the software filters as merely an example of a library's traditional task of content selection. In his view, the software filtering mandate is nothing more than censorship, and clearly prohibited by the First Amendment.
That's all for now. More later. Thanks for reading!
From the Appellate Practice Group at Wiggin & Dana.
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