Continued Uncertainty About Scope of Lawrence v. Texas Helps Sink Habeas Petition in Incest Conviction

Reflecting the continuing disagreement among the federal courts about the precedential scope of the U.S. Supreme Court's 2003 decision Lawrence v. Texas, 539 U.S. 558, a panel of the U.S. Court of Appeals for the 6th Circuit affirmed a district court's denial of a petition for habeas corpus brought by an Ohio man who was convicted under a state incest law for engaging in sexual conduct with his adult step-daughter.  The panel held, first, that the constitutional invalidity of the incest law was not "clearly established" in light of the continuing disagreement about the scope of liberty protected under the 14th Amendment as it pertains to "morality-based legislation," and, second, that even an adult incest situation would fall within the list of specific crimes that the Supreme Court said it was not addressing in Lawrence.  Lowe v. Swanson, 2011 Westlaw 6091318 (6th Cir., Dec. 8, 2011).

Paul Lowe was indicted for a violation of Ohio Rev. Code Sec. 2907.03(A)(5), which says it is a crime to "engage in sexual conduct with another, not the spouse of the offender, when … the offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of another person."  The charge was that Lowe engaged in a consensual sexual relationship with his 22-year-old stepdaughter, the natural daughter of his wife.  Neither the court of appeals decision nor the lower court decisions provide any more facts than that.

Lowe's defense to the charge was two-fold: First, he argued that the intent of the legislature was to forbid a sexual relationship involving a minor who is the stepchild of the defendant, and not to reach adult consensual relationships.  Second, he argued that applying the statute to this adult consensual relationship would violate his right to due process of law as described by the Supreme Court in Lawrence v. Texas.  When the state trial court rejected both arguments, he pled "no contest" to the charge and was sentenced to 120 days in prison, three years of community control (probation), and classification as a sex offender. 

Lowe appealed the trial court's ruling in the Ohio court system, but was unsuccessful in getting it reversed by the Ohio Supreme Court, leading him to file a petition in federal court for habeas corpus relief, which was rejected by a federal magistrate judge and then District Judge Donald C. Nugent (N.D. Ohio, Akron).  Represented by Dean Carro from the University of Akron Law School, Lowe repeated his argument on the constitutional point to the court of appeals. 

Under the Antiterrorism and Efffective Death Penalty Act of 1996, the lower federal courts are limited in their ability to grant habeas corpus relief.  There are essentially two grounds upon which such relief may be granted:  (1) the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) the state court conviction was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."  This case would arise under the first ground, if at all, and would turn on Supreme Court cases involving a liberty interest for adults to engage in consensual sex.

The problem is that the opinion for the Supreme Court in Lawrence, written by Justice Anthony M. Kennedy, Jr., is latent with ambiguity and lends itself to multiple interpretations, in part because it avoids key phrases that have been used by legal scholars and some courts to describe the process of judicial review under the Due Process Clause.  Justice Kennedy does not speak in terms of "fundamental rights" or "strict scrutiny" or "rational basis," but he does use language and cite to prior cases in a way that would provide support to someone who argues that the Court was endorsing a broad right of sexual privacy for consenting adults.  On the other hand, he also uses language that would provide support to somebody claiming that the holding in Lawrence was actually quite narrow, focusing on private, consensual adult homosexual conduct, the precise issue before the Court, and reserving for decision at a future time the application of Due Process liberty to other kinds of sexual conduct and expression.  Thus, one can treat Lawrence as a broadly doctrinal ruling, or as a narrowly particularistic one.

This has played itself out in the lower courts.  Some of the Circuit Courts of Appeal have held that Lawrence establishes a standard of heightened scrutiny — somewhere between rational basis review and strict scrutiny — of state laws that burden private adult consensual sexual activity.  Other Circuit courts have insisted that the language the Supreme Court used in stating its holding invokes rational basis review. 

As summarized by Circuit Judge Richard Allen Griffin (who was appointed by President George W. Bush), the 1st, 5th and 9th Circuits have taken the broader view, finding a heightened scrutiny approach most consistent with what happened in Lawrence, although only one of those cases, the 5th Circuit Texas sex toys ruling, applied this approach outside of the context of anti-gay government policies to strike down a state law under the 14th Amendment.  On the other hand, the 7th, 10th and 11th Circuits have taken a narrower view, rejecting the idea that the Supreme Court had recognized a general right of sexual privacy for consenting adults as "fundamental" or requiring any more than rational basis review.  And, tellingly, so far Lawrence v. Texas has not been relied upon by any courts to strike down state incest laws on Due Process grounds, although there have been some prior challenges.

The panel stated its agreement with the 7th Circuit, which in Muth v. Frank, 412 F.3d 808, cert. denied, 546 U.S. 988 (2005), rejected a constitutional challenge to Wisconsin's incest law in a case involving consenting adults, concluding: "given… the specific focus of Lawrence on homosexual sodomy, the absence from the Court's opinion of its own 'established method' for resolving a claim that a particular practice implicates a fundamental liberty interest, and the absence of strict scrutiny review," there was no clearly established federal law "that supports [defendant's] claim that he has a fundamental right to engage in incest free from government proscription."

Having decided that the Supreme Court has not clearly established a Due Process liberty interest protecting adult consensual incest in a stepparent/stepchild setting, the court found that under the rational basis test there was no ground to attack the Ohio Supreme Court's decision in this case.  "Unlike sexual relationships between unrelated same-sex adults," wrote Judge Griffin, "the stepparent-stepchild relationship is the kind of relationship in which a person might be injured or coerced or where consent might not easily be refused, regardless of age, because of the inherent influence of the stepparent over the stepchild."  The court also found that Ohio's "interest in criminalizing incest is far greater and much different than the interest of the State of Texas in prosecuting homosexual sodomy.  Ohio's paramount concern is protecting the family from the destructive influence of intra-family, extra-marital sexual contact.  This is an important state interest that the Lawrence Court did not invalidate."

The court also rejected Lowe's contention that the Ohio incest law was contrary to Lawrence because it was "morality-based," pointing out again that the state was advancing its interest in protecting families, and that Lawrence had not categorically invalidated all criminal laws based on morality, citing for this the 11th Circuit's ruling upholding a state sex toys ban (which was directly contrary to a 5th Circuit decision striking down a such a ban based on a more expansive reading of Lawrence). 

Lowe had also argued that "there is no evidence in the record that beyond my technical status as stepfather an actual family unit even existed."  This suggests that the factual record in the case is more complex than the court is letting on.  Perhaps Lowe's wife's daughter was not living together with Lowe and his wife in a de facto family unit, such that Lowe had not played a parental role in her life during her minority.  But the court cast this aside, asserting that "Ohio has an interest in protecting all families against destructive sexual contacts irrespective of the particular factual family dynamic."

The continuing difference among lower federal courts about the precedential scope of Lawrence, summarized by Judge Griffin in his opinion for the panel, suggests that there is need for further clarification from the Supreme Court.  The question is whether now would be a good time to seek further clarification, in light of the current make-up of the Court, which is more conservative than when Lawrence was decided.  Justice Sandra Day O'Connor, who concurred in Lawrence on equal protection grounds, was replaced by Justice Samuel Alito, whose record so far indicates a generally more conservative stance on social issues than that take by Justice O'Connor.  The other changes on the Court since 2003 include the substitution of Chief Justice John Roberts for Chief Justice William Rehnquist, marking a slight move to the right in the central chair, and the replacements of Sonya Sotomayor for David Souter and Elena Kagan for John Paul Stevens, probably signifying no significant change on these sorts of constitutional questions.  Thus, on balance, there is a slight rightward tilt since 2003 on social issues, but, as with many constitutional issues these days, the outcome would most likely turn on whether Justice Kennedy would see this as an appropriate case to expand upon the liberty interest he expounded in Lawrence.