IN THE
SUPREME COURT STATE OF
LOUISIANA
_______________________________________________________________________
___________________________________________________________________
VERSUS
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_______________________________________________________________________
BRIEF AMICI CURIAE OF AMERICAN CIVIL LIBERTIES
UNION-LOUISIANA
AND AMERICAN CIVIL LIBERTIES UNION IN
SUPPORT OF APPELLEE
_______________________________________________________________________
MARTHA J. KEGEL, La. Bar. No. 22472
Cooperating Attorney, ACLU of
Louisiana
234 Loyola Building, Suite 925
New Orleans, LA 40202
(504)
522-0628
MICHAEL ADAMS
MATT COLES
American Civil Liberties Union
125 Broad
Street, 18th Floor
New York, NY 10004-2400
(212) 549-2627
TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF ARGUMENT
ARGUMENT
I. WHETHER R.S. 14:89(A)(1) VIOLATES THE RIGHT TO PRIVACY UNDER LOUISIANA'S CONSTITUTION IS PROPERLY BEFORE THIS COURT AND THE STATE HAS BEEN GIVEN EVERY OPPORTUNITY TO DEFEND THE STATUTE.A. R.S. 14:89(A)(1) Infringes The Fundamental Right, Guaranteed By The Louisiana Constitution, To Be Secure From Unreasonable Invasions Of Privacy
B. The State Has No Compelling Or Even Rational Interest To Justify Criminalizing Private, Non-Commercial Sexual Activity Between Consenting Adults
1. The only interest advanced by the State - punishing criminal defendants who have been acquitted of rape charges - is neither a compelling nor a legitimate governmental interest
2. The statute cannot be saved by a bald assertion of public morality, absent
a legitimate benefit to public welfare, because this is functionally
indistinguishable from enshrining popular prejudice, which does not constitute
either a compelling or rational basis for R.S. 14:89(A)(1).
C. Amici's Position Is Consistent With The Trend In Other States To
Invalidate And Repeal Sodomy Statutes.
CONCLUSION
The American Civil Liberties Union ("ACLU") is a nonprofit, nonpartisan corporation founded in 1920 for the purpose of maintaining and advancing civil liberties in the United States. It has over 300,000 members nationwide. The ACLU has a long history of legal advocacy to protect privacy for all individuals. The ACLU and its fifty-three state affiliates have participated, either directly or as amicus, in many challenges to state laws which regulate private sexual conduct, like the Louisiana "crime against nature" statute at issue here.
On September 24, 195, Mitchell Smith was having a drink in a bar in Chalmette, Louisiana when he met a woman who eventually agreed to accompany him to a motel in New Orleans. The following day the woman contacted the police and alleged that he had sexually assaulted her. Mr. Smith was charged with one count of simple rape and one count of aggravated crime against nature. The trial court acquitted Mr. Smith of both charges. However, it found him guilty of simple crime against nature, La. R.S. 14:89(A)(1), because he testified that he had engaged in consensual oral sex with the woman.
The issue presented in this case -- whether the "crime against nature" statute, R.S. 14:89(A)(1), violates the explicit right to privacy guaranteed by article one, section five of our state Constitution -- has never before been addressed by the Louisiana Supreme Court. This Court has acknowledged that "the parameters of the state constitutional right to privacy in the sexual area have not yet been determined." State v. Baxley, 93-2159 (La. 2/28/94); 633 So.2d 142. In prior cases examining whether criminalization of non-commercial private sexual intimacy conflicts with the right to privacy, only federal constitutional claims were raised; the broader privacy guarantee in the Louisiana Constitution was not addressed. See State v. McCoy, 337 So.2d 192 (La. 1976).
The case at bar provides this Court with the opportunity to address the extent to which the Louisiana Constitution's right to privacy protects private, non-commercial sexual intimacy between consenting adults. Appellee has been found guilty of the crime against nature because he testified that he engaged in consensual oral sex. "[O]ral sex ... in Louisiana is still against the law," the district court correctly noted. Amici believe that the right to privacy guaranteed by the Louisiana Constitution does not permit such a scheme.
Whether R.S. 14:89(A)(1) violates the right to privacy under Louisiana's Constitution is properly before this Court and the State has been given every opportunity to defend the statute. Article one, section five of the Louisiana Constitution explicitly guarantees the privacy of all of this State's citizens, and this privacy guarantee has been held to be broader than the privacy protections of the U.S. Constitution. R.S. 14:89(A)(1) infringes the fundamental right of each citizen of Louisiana to be secure from unreasonable invasions of privacy. This being the case, R.S. 14:89(A)(1) must be stricken unless it advances a compelling governmental interest and is narrowly drawn with that interest in mind.
In fact, the State has no compelling or even rational interest to justify criminalizing private, non-commercial sexual activity between consenting adults. Neither the State's purported interest in punishing criminal defendants acquitted of rape charges, nor any assertion of a governmental interest in protecting "public morality," are compelling or legitimate bases upon which R.S. 14:89(A)(1) may stand. This being the case, R.S. 14:89(A)(1) should be struck down as a violation of the privacy guarantee of Louisiana's Constitution.
I. WHETHER R.S. 14:89(A)(1) VIOLATES THE RIGHT TO PRIVACY UNDER LOUISIANA'S CONSTITUTION IS PROPERLY BEFORE THIS COURT AND THE STATE HAS BEEN GIVEN EVERY OPPORTUNITY TO DEFEND THE STATUTE.
Perhaps sensing the difficult task it faces in defending R.S. 14:89(A)(1), the State at the outset attempts to avoid the question of whether the statute violates the right to privacy under the Louisiana Constitution by suggesting (1) that the Appellee did not preserve the issue at the trial level; (2) that the State has somehow been hamstrung in its defense of R.S. 14:89(A)(1) by the record in this case; and (3) that the State has no obligation to identify the governmental interests that purportedly justify R.S. 14:89(A)(1) because the statute is presumed constitutional. These assorted attempts by the State to avoid the constitutional day of reckoning on R.S. 14:89(A)(1) are entirely without merit.It is surprising that the State would suggest Appellee has not preserved his privacy challenge, since the State's brief cites a trial submission of Appellee's counsel which explicitly raises the privacy issue. Appellee's "Memorandum In Support Of Motion To Arrest Judgment", timely filed with the trial court, states:
It is respectfully submitted that the statute L.R.S. 14:89(A)(1)a., delineating "unnatural carnal copulation" as a crime ... constitutes a legislative intrusion violating the right to privacy under the constitutions of the State of Louisiana and the United States of America, and both to such an extent as to be violative of due process of law, for statutorily undescribed adult heterosexual conduct in private ...
Def's Memo In Support of Motion To Arrest Judgment at 4, cited in Appellant's Brief at 10 (emphasis supplied).What more the State would have Appellee do is unclear. Indeed it is well-established in Louisiana that a defendant "whose rights are injuriously affected by those provisions of the law sought to be declared unconstitutional can be heard to challenge the constitutionality thereof." State v. Furlow, 460 So.2d 76 (La.Ct.App. 1984). In State v. Peart, 621 So.2d 780 (La. 1993), this Court acknowledged that the early consideration of constitutional claims furthers the interests of judicial economy and best protects defendants' constitutional rights. None of the cases cited by the State in support of their argument suggests otherwise; indeed, none are criminal cases. Regardless, Appellee has met even the preservation requirements of a civil litigant, because he specifically argued at the trial level that R.S. 14:89(A)(1) violated the right to privacy guaranteed by the Louisiana Constitution. See Williams v. State of Louisiana, 95-0713 (La. 1/26/96), 671 So.2d 899 (La. 1996) (outlining civil litigant's responsibility to specifically raise constititutional claims at the trial level).
Equally bizarre is the State's argument that "the lack of an evidentiary record from the trial court has placed the State in an extremely awkward position." Appellant's Brief at 6. The State incorrectly suggests that this Court must rely "upon evidence in the record" to determine whether private, non-commercial sex between consenting adults is protected by the right to privacy under the Louisiana Constitution. The State further suggests that "in the ordinary case" the State would rely on the record below to demonstrate what governmental interests support R.S. 14:89(A)(1). Appellants' Brief at 6, 8. Both suggestions are wrong. The record in this case establishes the conduct for which Appellee has been criminally punished: consensual non-commercial sex in private with another adult. No further reference to the record is necessary in order for this Court to determine first, whether this conduct is protected by the Louisiana Constitution's right to privacy and second, what if any governmental interests justify the criminalization of said conduct by R.S. 14:89(A)(1).
Inquiries about whether conduct is protected by the right to privacy are questions of law that are resolved based on precedent, not evidence. See, e.g., Hondroulis v. Schuhmacher, 553 So.2d 398, 414-16 (La. 1989)(whether right to privacy protects decision to obtain or refuse medical treatment resolved as question of law, without reference to record). Indeed, the State can point to no court that has felt itself constrained by an evidentiary record when addressing the constitutionality of a statute like R.S. 14:89(A)(1), once the conduct at issue has been established. Nor has a State or private party been so constrained in either defending or attacking such a statute. See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487, 501 (Ky. 1993) (Court considers State proffer of governmental interests supporting sodomy statute, without reference to the record, even when interests proferred are "simply outrageous" or enjoy only "superficial validity").
Finally, the State's attempt to hide behind the presumptive constitutionality of a statute should not be countenanced. While it is axiomatic that statutes are generally presumed to be constitutional, it is equally axiomatic that this presumption is discarded when a statute is found to infringe on a constitutionally-guaranteed fundamental right. See, e.g., Powell v. State, 510 S.E.2d 18, 21 (Ga. 1998) (presumption of statutory constitutionality is overturned when it is established that legislation infringes upon a constitutional provision). When a statute impinges on the right to privacy guaranteed by the Louisiana Constitution, the statute will be strictly scrutinized. Hondroulis, 553 So.2d at 415. In constitutional cases, scrutiny which is "strict in theory" is usually "fatal in fact." C. Gunther, The Supreme Court - Foreword, 86 Harv. L. Rev. 8 (1972).(1)The State itself has conceded that if this Court determines that private, consensual, non-commercial sex between adults is protected by the right to privacy under the Louisiana Constitution, strict scrutiny applies and "the State should explain the compelling state interest justifying 14:89(A)(1)." Appellant's Brief at 6. Nonetheless, the State did not identify any governmental interest, compelling or otherwise, before either the trial court or the Court of Appeals.(2)
As discussed below, the State has made only a meager showing on this issue before this Court. Having now been given three opportunities to explain what governmental interests justify R.S. 14:89(A)(1), and having conceded that strict scrutiny applies if the right to privacy is at issue, the State can no longer hide behind presumptions of constitutionality or reasonably contend that it has not had the opportunity to be heard.
II. R.S. 14:89(A)(1) VIOLATES ARTICLE ONE, SECTION FIVE OF THE LOUISIANA CONSTITUTION BECAUSE IT IMPOSES A SIGNIFICANT BURDEN UPON THE EXERCISE OF THE FUNDAMENTAL RIGHT OF PRIVACY WITHOUT SERVING ANY COMPELLING STATE INTEREST
A. R.S. 14:89(A)(1) Infringes The Fundamental Right, Guaranteed By The Louisiana Constitution, To Be Secure From Unreasonable Invasions Of Privacy Article one, section five of the Louisiana Constitution guarantees that every individual "shall be secure in his person ... against unreasonable invasions of privacy." In contrast, the federal Constitution contains no explicit guarantee of a right to privacy. Delegates to the 1973 Constitutional Convention expressed the desire to extend the reach of privacy protection beyond that of the federal Constitution. 6 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, 1072-1077; Hargrave, The Declaration of Rights in the Louisiana Constitution of 1974, 35 La. L. Rev. 1 (1974); Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 27 (1975).The express guarantee of privacy in Louisiana's Constitution is broader than the corresponding federal constitutional right and provides greater protection. Article one, section five "is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution." State v. Hernandez, 410 So.2d 1381, 1385 (La. 1982), rev'd on other grounds, 449 So.2d 63 (La. 1984). The state privacy provision "represents a conscious choice by the citizens of Louisiana" to provide greater protection than that provided by the federal Constitution. State v. Church, 538 So.2d 993 (La. 1989); see also State v. Vanderlinder, 575 So.2d 521, 523 (La.App. 5 Cir. 1991) ("privacy rights granted by the Louisiana Constitution afford a higher standard of individual liberty than those granted by the federal constitution"), writ denied, 580 So.2d 377 (La. 1991); Banks v. Dep't of Public Safety and Corrections, 598 So.2d 515 (La.App. 1st Cir. 1992) (state right to privacy "is not a duplicate of the Fourth Amendment ... or merely coextensive with it"). Though giving "careful consideration to the United States Supreme Court interpretations of relevant provisions of the federal constitution," this Court has stated unequivocally that it cannot allow those interpretations "to replace our independent judgment in construing the constitution adopted by the people of Louisiana." Hernandez, 410 So.2d at 1385.
The Louisiana constitutional right of privacy protects an individual's "right to be left alone, to be free of unjustified governmental interference with his mind, body, or autonomy." State v. McHugh, 92-1852 (La. 1/6/94); 630 So.2d 1259 (La. 1994). Control of one's body is essential to the concept of privacy. State v. Perry, 610 So.2d 746, 757-58 (La. 1992). In Hondroulis, this Court interpreted article one, section five to protect the right of an individual to make the "intrinsically personal" decision whether to obtain or reject medical treatment, even though the Court noted that the U.S. Supreme Court had not as yet recognized such a federal privacy right. 553 So.2d at 414-15. Article one, section five therefore encompasses the right of each person to decide what to do in private with his own body.
The First Circuit recently acknowledged that laws criminalizing private sexuality may violate Louisiana's privacy guarantee. In State v. Brenan, 98-2368 (La.App. 1 Cir. 7/1/99); 1999 La. App. LEXIS 2168, the court struck down La.R.S. 14:106.1, which criminalizes the sale of "obscene devices," holding that the statute lacks a rational relationship to a legitimate state interest. The court noted that the statute did not prohibit the use of "obscene devices" because such a prohibition would require "bedroom police" and therefore might be unconstitutional. Id. at *ll. A concurring opinion pointed out that the statute's restriction on the sale of sex toys intended for private use in the home by consenting adults appeared to conflict with article one, section five. Id. at *19 (Carter, C.J., and Whipple, specially concurring).
The conflict between Louisiana' constitutional right to privacy and R.S. 14:89(A)(1) is dramatic. R.S. 14:89(A)(1) criminalizes and provides severe penalties for intimate acts between adults that are non-commercial, that are entirely consensual, and that take place in the privacy of a bedroom. This criminal regulation of common sexual conduct tremendously circumscribes individual autonomy. In flatly prohibiting oral sex, the statute criminalizes an intimate act which, at the dawning of the 21st century, is considered an important part of the intimate relationships of many couples, both heterosexual and gay/lesbian, married and unmarried. In our society, few matters are considered more private than sexual relations between consenting adults. It is difficult to imagine anything more personal than a couple's private decision as to which sexual activities they wish to include in their intimate relationship.
B. The State Has No Compelling Or Even Rational Interest To Justify Criminalizing Private, Non-Commercial Sexual Activity Between Consenting Adults
This Court has expressly held that:Hondroulis, 553 So.2d at 415. Because R.S. 14:89(A)(1) serves no compelling state interest, nor even a rational interest, the statute unconstitutionally infringes upon the state fundamental right to privacy.where a decision as fundamental as those included within the right of personal privacy is involved, regulations imposing a burden on it may be justified only by compelling state interests, and these must be narrowly drawn to express only those interests.
it is incredulous that the victim in this case would have taken the actions she did in reporting this event to the police, having the police track the defendant by his license plate number obtained from the hotel, appearing for the court dates and testifying at trial, if she simply fabricated the parts of the allegation that differ from the defendant's story. ... Perhaps a compelling state interest is to protect victims such as in the present case against bench trials in which if there was not a responsive verdict available as an alternative, the defendant would simply walk, free and clear. Appellant's Brief at 15.
The State's argument takes the most basic tenets of our criminal justice system and turns them on their heads. A presumption that a criminal defendant is innocent until proven guilty is a "bedrock `axiomatic and elementary' principle whose `enforcement lies at the foundation of the administration of our criminal law.'" In the Matter of Samuel Winship, 397 U.S. 358, 363 (1970), quoting Coffin v. U.S., 156 U.S. 432, 453 (1895). The presumption of innocence has special force in Louisiana. In contrast to the federal Constitution, Louisiana's Constitution contains an explicit guarantee that "[e]very person charged with a crime is presumed innocent until proven guilty." La. Const. art. 1, sec. 16. This Court has construed this affirmative provision as additional insurance that an accused not be treated as if he is guilty. State v. Brown, 585 So.2d 1211 (La. 1991) (reversing conviction of man forced to stand trial in readily identifiable prison attire); State v. Mussall, 523 So.2d 1305, 1309 (La. 1988) (reversing conviction based on inadequate evidence); State v. Rogers, 375 So.2d 1304, 1313 (La. 1979) (rejecting state's argument that it need not divulge information in a bill of particulars because the "defendant ought to know with whom he conspired").
The presumption of innocence is more than a historical nicety. Rather, it recognizes what is at stake in a criminal trial:
Winship, 397 U.S. at 363. Because our society values the "good name and freedom" of each of its citizens, a "subjective state of certitude" is required before an accused will be convicted of a crime. Id. at 364.The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.
In order to ensure that criminal convictions are supported by a "state of certitude", our courts have long-recognized that certain procedural protections are constitutionally required in criminal trials. One of the most important of these is the "reasonable doubt" standard. Winship, 397 U.S. at 363. Indeed, it has long been without question that an individual shall not be found guilty and punished for a crime unless the factfinder is convinced that the evidence "is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged. Davis v. U.S., 160 U.S. 469, 493 (1895) (emphasis supplied).
State criminal proceedings that do not include appropriate procedural protections will be held to violate the Constitution. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (reversing criminal conviction for simple battery where defendant's request for a jury trial was unconstitutionally denied). These protections are necessary in order to minimize the risk of convictions based on factual error and to serve as a check on overzealous prosecution and arbitrary law enforcement. Winship, 397 U.S. at 363; Duncan, 391 U.S. at 156.
Appellee was afforded his day in court and provided the procedural protections appropriate to a criminal trial. The trial court acquitted Appellee of simple rape and aggravated crime against nature because the court concluded that the evidence did not prove, beyond a reasonable doubt, that the Appellee engaged in sex without consent. The State believes that R.S. 14:89(A)(1) is justified by the need to have another criminal charge in the prosecution's arsenal where, as here, the State is unable to prove all of the elements of rape beyond a reasonable doubt. But the State has not pointed to any case in any jurisdiction that has validated a criminal statute that would otherwise be unconstitutional in order to alleviate the prosecution's burden of proving a crime has been committed. In fact, the case law says precisely the opposite.
In Kolender v. Lawson, 461 U.S. 352 (1982), the U.S. Supreme Court addressed the constitutionality of a California statute that required any person loitering or wandering on the streets to explain their presence and provide identification to a police officer upon request. California attempted to justify the statute based on "the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation." Kolender, 461 U.S. at 361. In an opinion by Justice O'Connor, the Court recognized the importance of combatting crime, but nonetheless held that this governmental interest could not rescue a criminal statute that otherwise failed to meet constitutional standards. Id. This is especially true where, as here, enforcement of the statute serves to eviscerate a constitutionally-protected right. See, e.g., Coates v. Cincinnati, 402 U.S. 611 (1971) (striking down statute that made it a crime to assemble on sidewalk in annoying manner because of burden on constitutional right to assemble).
Amici do not question that the State has an important role to play in discouraging sexual violence by vigorous investigation of rape allegations and, where appropriate, prosecution. But as the Georgia Supreme Court has pointed out, "[t]he State fulfills its role in preventing sexual assaults and shielding and protecting the public from sexual acts by enactment of criminal statutes prohibiting such conduct." Powell, 510 S.E.2d at 24. See also Coates, 402 U.S. at 614 (city is free to prevent antisocial conduct by "the enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited," but not through laws that are constitutionally infirm). Louisiana cannot seek to discourage rapes by employing R.S. 14:89(A)(1) -- which seriously burdens the right to privacy under the Louisiana Constitution -- as a means of evading acquittals that result from the procedural protections to which all criminal defendants are entitled.(4)
2. The statute cannot be saved by a bald assertion of public morality, absent a legitimate benefit to public welfare, because this is functionally indistinguishable from enshrining popular prejudice, which does not constitute either a compelling or rational basis for R.S. 14:89(A)(1).
The State's only attempt to articulate a compelling governmental interest justifying R.S. 14:89(A)(1) clearly fails. Faced with similar difficulties in defending antiquated sodomy statutes, other States have unsuccessfully attempted to advance the justification that such statutes protect an undefined "moral interest" in society. See, e.g., Powell, 510 S.E.2d at 25; Gryczan v. State, 942 P.2d 112, 124 (Mt. 1997); Campbell v. Sundquist, 926 S.W.2d 250, 264 (Tn. 1996); Commonwealth v. Wasson, 842 S.W.2d 487, 497 (Ky. 1992) . In anticipation that the State may yet attempt to assert such a governmental interest, Amici suggest to this Court that such an argument would be without merit.Public morality, when used as a basis to justify an exercise of the police power of the state, cannot be divorced from the broader concept of the public welfare. See 63A Am.Jur.2d, Public Officers and Employees, Sec. 246, at 844-45; see also P. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review, 87 Geo. L.J. 139 (1998). Expressed differently,
State v. Bonadio, 415 A.2d 47, 50 (Pa. 1980).[w]ith respect to regulation of public morals, the police power should properly be exercised to protect each individual's right to be free from interference in defining and pursuing his own morality, but not to enforce a majority morality on persons whose conduct does not harm others.
Similarly, the Supreme Court of Kentucky, in striking down that state's sodomy statute as, inter alia, a violation of the state constitutional right to privacy, quoted approvingly from a much earlier case that held that, "`[t]he power of the state to regulate and control the conduct of a private individual is confined to those cases where his conduct injuriously affects others.'" Wasson, 842 S.W.2d at 496 (quoting Commonwealth v. Smith, 173 S.W. 340, 343 (1915)). The Kentucky Supreme Court concluded that "the clear implication" of that holding was that "morality in private which does `not operate to the detriment of others' is placed beyond the reach of state action." Id. at 496 (quoting Smith, 173 S.W. at 343).
The court in Wasson closely examined the various cases that have addressed public morality justifications for sodomy statutes and found persuasive the reasoning in People v. Onofre, 415 N.E.2d 936 (N.Y. 1980), cert. denied 451 U.S. 987 (1981); Bonadio, supra; and State v. Morales, 826 S.W.2d 201 (Tex.Ct.App. 1992), rev'd on other grounds, 869 S.W.2d 941 (Tex. 1994), as well as the Model Penal Code:
With respect to the regulation of morals, the police power should properly be exercised to protect each individual's right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. No harm to the secular interest of the community is involved in atypical sex practice in private between consenting adult partners.
Many issues that are considered to be matters of morals are subject to debate, and no significant state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority ... Enactment of the voluntary deviate sexual intercourse statute, despite that it provides punishment for what many believe to be abhorrent crimes against nature and perceived sins against God, is not proper in the realm of the temporal police power.From this principle distinguishing public morality from private morality, it follows that where an exercise of the police power does not further the public welfare, either by encouraging some public benefit or inhibiting some public harm, a simple assertion that the particular exercise of state power furthers a moral interest cannot possibly provide a compelling or even rational basis for the state action. In striking down New Jersey's fornication statute, the Supreme Court of that State reasoned "[t]hat to the extent [the fornication statute] serves as an official sanction of certain conceptions of desirable lifestyles, social mores or individualized beliefs, it is not an appropriate exercise of the police power." State v. Saunders, 381 A.2d 333, 342 (N.J. 1977). The Court noted that while "[f]ornication may be abhorrent to the morals and deeply held beliefs of many persons [] ... any appropriate `remedy' for such conduct cannot come from legislative fiat. Private personal acts between two consenting adults are not to be lightly meddled with by the State." Id. In the same vein, the Supreme Court of Pennsylvania, in striking down that state's sodomy statute, held that "no sufficient state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority." Bonadio, 415 A.2d at 50.
Where an alleged interest in public morality is not rationally and demonstrably connected to the furtherance of the public welfare, courts have not been reluctant to find such "morality" to be a thin disguise for private, albeit majoritarian, prejudice. So, for example, in Loving v. Virginia, 388 U.S. 1, 11 (1967), the United States Supreme Court invalidated a miscegenation statute. In a similar context, involving the removal of the custody of a child from a woman who had entered into an interracial second marriage, the United States Supreme Court emphasized the principle that while the law may be compelled to co-exist with private bias, it cannot give effect to those biases. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
When considering a public morality jusitification for R.S. 14:89(A)(1), it is important for the Court to recall that prohibitions on interracial marriage, and the segregation of the races generally, were values deeply imbedded in the social morality of many areas of the United States and were values that invoked the authority of both God and nature. See State v. Gibson, 36 Ind. 389, 404 (1871) (observing that interracial marriage clearly prohibited by divine origins of natural law). But appeals to natural or theological ethics cannot constitutionally be used to legitimate laws whose sole function is to give effect to private citizens' prejudice or conviction. As the U.S. Supreme Court has repeatedly made clear, giving effect to private bias cannot serve as a compelling state interest, or even provide a rational basis to an exercise of state power. Romer v. Evans, 517 U.S. 620, 634 (1996) (animosity toward gays and lesbians is not a legitimate government interest and cannot justify state constitutional amendment); see also Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985); U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 533 (1973). That principle is not altered by the fact that private bias, as is so often the case, happens to be veiled in the language of public morality.(6)
C. Amici's Position Is Consistent With The Trend In Other States To Invalidate And Repeal Sodomy Statutes.Nor is this trend of purely recent vintage. Indeed, in the twenty five years prior to the U.S. Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), twenty six states removed their sodomy laws through court decisions or legislative repeal. See Yao Apasu-Gbotsu et al., Survey on the Law: Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 526 n.24 (1986). Thus the Supreme Court of Kentucky, in striking down that state's sodomy statute in 1993, noted that its decision, "rather than being the leading edge of change, is but a part of the moving stream." Wasson, 842 S.W.2d at 498.
In fact, the one notable exception to the trend toward invalidation of sodomy statutes is Bowers itself, in which the U.S. Supreme Court upheld the constitutionality of Georgia's sodomy statute in the face of a federal privacy challenge. Historical developments since Bowers only serve to support Amici's position in this case. While Bowers held that the federal right to privacy did not prohibit Georgia from enacting its sodomy statute, the Georgia Supreme Court subsequently found the law barred by the broader privacy protections of the Georgia Constitution. See Powell, supra. Amici believe that the same result should be reached under the Louisiana Constitution.
Moreover, the persuasiveness of the Bowers analysis, even with regard to the federal privacy right, is seriously in doubt. Commentators have been "virtually unanimous" in criticizing Bowers as a departure from the privacy doctrine established in the Supreme Court's own prior decisions.(13) And in 1990 former Justice Lewis Powell publicly stated that his vote with the five-justice majority in Bowers was "probably a mistake," and that the dissent "had the better of the argument." Justice Powell also revealed that his "was the deciding vote that made the decision 5-4."(14)
Thus, a decision by this Court to strike down R.S. 14:89(A)(1) as a violation of the right to privacy under the Louisiana Constitution, rather than plowing new ground, will be consistent with the overwhelming trend in this country's courts and legislatures.
CONCLUSION
For the reasons stated above, Amici respectfully ask this Court to hold that the right to privacy explicitly guaranteed by the Louisiana Constitution encompasses private, non-commercial sexual intimacy between consenting adults, that no compelling interest permits the State to criminalize this activity, and that R.S. 14:89(A)(1) is therefore unconstitutional.
MARTHA J. KEGEL, La. Bar. No. 22472a
Cooperating Attorney, ACLU of
Louisiana
234 Loyola Building, Suite 925
New Orleans, LA 40202
(504)
522-0628
MICHAEL ADAMS
MATT COLES
American Civil Liberties Union
125 Broad
Street, 18th Floor
New York, NY 10004-2400
(212) 549-2627
________________________________________________________________________
2. The Court of Appeals, in apparent frustration, noted:
We have received no guidance from the State of Louisiana that will assist us in deciding the constitutionality of La. Rev. Stat. 14:89 A (1) in the context of this appeal. The Attorney General, although given notice and an opportunity to be heard, has not filed a brief. The brief filed on behalf of the State by the District Attorney, although arguing that there is no sound reason to deviate from the long history of jurisprudence upholding La. Rev. Stat. 14:89 A (1), has advanced no compelling state interest to justify the criminalization of non- commercial sexual conduct that occurs without force, in private, between two consenting adults. State v. Mitchell Smith, 97-KA-1393 (La.App.4th Cir.) Slip op. at 10-11.3. State v. Mitchell Smith, 97-KA-1393 (La. App. 4th Cir.) slip op. at 10-11.
4. The State's undisguised and illegitimate goal is to use R.S. 14:89(A)(1) to deny an acquitted defendant the two things to which he is entitled - his liberty and his reputation. Winship, 397 U.S. at 363-64. The State's message in this regard is clear - even though acquitted, Appellee is in fact guilty of rape and therefore is deserving of condemnation. Indeed, achieving a conviction against Appellee under the "crime against nature" statute delivers the message well. R.S. 14:89(A)(1) carries a penalty of up to five years imprisonment. The penalty the State attaches to a crime can be taken "as a gauge of its social and ethical judgments." District of Columbia v. Clawans, 300 U.S. 617, 628 (1937). The U.S. Supreme Court has held that a crime punishable by imprisonment of two years must be classified as a "serious crime" for constitutional purposes. Duncan, 391 U.S. at 162. Thus, although acquitted of rape - a crime with which the State is legitimately concerned - the Appellee is nonetheless branded with commission of a serious offense.
5. The American Law Institute, commenting on the Model Penal Code's decriminalization of sodomy between consenting adults in private, recognized the loss of personal liberty that occurs when morality justifications are sustained:
[L]egislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior ... ALI, Model Penal
Code and Commentaries, Part II, 1980 ed., Sec. 213.2, pp. 371-72.
6. Nor can enforcement of religious morality provide a compelling or legitimate state interest in this case. See Brief of Amicus Curiae Unitarian Universalist Church, et al. filed in this case.
7. Powell v. State, 510 S.E.2d 18 (Ga. 1998)
8. Gryczan v. State of Montana, 942 P.2d 112 (Mt. 1997)
9. Campbell v. Sundquist, 926 S.W.2d 250 (Tn. 1996)
10. Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1993)
11. See State v. Morales, 826 S.W.2d 201 (Tex.Ct.App. 1992), rev'd on other grounds 869 S.W.2d 941 (Tex. 1994); City of Dallas v. England, 846 S.W.2d 957 (Tex. Ct.App. 1993), writ dism'd w.o.j. (May 5, 1993), reh'g of writ of error overruled (June 9, 1993); Williams v. Glendening, No. 98036031/CC-1059, 1998 Extra LEXIS 260 (Balt. City Cir. Oct. 15, 1998).
12. See Nev. Rev. Stat. Ann. Secs. 201.190, 201.193; R.I. Gen. Laws Sec. 11-10-1 (1998); D.C. Act 10-23 (D.C. Code Supp. 1994).
13. See Developments in the Law: Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1523 no. 30 (1989); see also Charles Fried, Constitutional Doctrine, 107 Harv. L. Rev. 1140, 1143 n. 9 (1994); Laurence H. Tribe, American Constitutional Law 1521 (2d ed.); Joel D. Joseph, Black Mondays: Worst Decisions of the Supreme Court 65-74 (1987) (including Bowers among "worst" Supreme Court opinions); Janet E. Halley, Reasoning About Sodomy: Act and Identity In and After Bowers v. Hardwick, 79 Va. L. Rev. 1721, 1748-53 (1993); Mitchell Lloyd Pearl, Note, Chipping Away at Bowers v. Hardwick: Making the Best of an Unfortunate Decision, 63 N.Y.U. L. Rev. 154 (1988).
14. See Anand Agneshwar, Powell Concedes Error in Key Privacy Ruling: Vote to Sustain Sodomy Law at High Court Called "Mistake", N.Y.L.J., Oct. 26, 1990.