Full opinion text
MEMORANDUM OPINION BUCHMEYER, District Judge. This is a suit by a homosexual, Donald F. Baker, attacking the constitutionality of § 21.06 (“Homosexual Conduct”) of the Texas Penal Code. Section 21.06 (and the related definitions in §§ 1.05 and 21.01) provide: “A person commits an offense if he [or she] engages in deviate sexual intercourse with another individual of the same sex. “ ‘Deviate sexual intercourse’ means any contact between any part of the genitals of one person and the mouth or anus of another person.” A violation of this statute is a “Class C misdemeanor,” punishable only by “a fine not to exceed $200.” Tex.Penal Code Ann. § 12.23 (Vernon 1974). The defendants contend that § 21.06 is constitutional because it furthers the state’s interests in protecting “morality, decency, health, welfare, safety, and procreation”— but, despite these important state interests, they also claim that the case should be dismissed because no one is ever prosecuted under this statute. There have been (and will continue to be) prosecutions of both homosexuals and heterosexuals — under Texas Penal Code provisions not involved in this suit — for such sexual offenses as (i) rape and sexual abuse by force, §§ 21.02 and 21.04; (ii) indecent exposure or public lewdness, §§ 21.07 and 21.08; and (iii) rape, sexual abuse or fondling of a child, §§ 21.09 — 21.11. However, § 21.06 does not concern rape, sexual abuse by force, offenses involving minors, or sexual conduct in public. Nor does it prohibit sodomy between a husband and wife or between an unmarried male and female. Instead, it condemns only homosexual conduct done in private between consenting adults. Accordingly, it is unconstitutional because it violates both the fundamental right of privacy and the right to equal protection of the laws guaranteed to the plaintiff (and other homosexuals) by the United States Constitution. This opinion will first discuss the procedural background of the controversy, the sodomy statute involved, and the facts established at trial (pages 1125-1134). Then, it will analyze the legal issues of right of privacy and equal protection (pages 1134-1145). Finally, it will deal with several additional matters raised by the parties (pages 1145-1147), and conclude by describing the exact limits of this decision (pages 1147-1148). The Procedural Setting The complaint seeks a declaration that § 21.06 (Homosexual Conduct) of the Texas Penal Code is unconstitutional because it violates (i) the plaintiff’s fundamental right to privacy, (ii) the equal protection clause of the fourteenth amendment, and (iii) the establishment of religion clause of the first amendment. -It named as defendants Henry Wade, District Attorney of Dallas County (“Dallas County”) and Lee Holt, City Attorney of Dallas, Texas (“City of Dallas”) — but also sought a defendant class, under Fed.R. Civ.P. 23(b)(2), consisting of “all district, county and city attorneys in the State of Texas responsible for the enforcement of Texas Penal Code Ann. § 21.06.” After the State of Texas intervened, the parties agreed that such a defendant class was proper. A consent certification order was entered, and the Court reaffirms its determination that the defendant class was properly certified. The Statute Texas has had three sodomy statutes. See Appendix A (“The Texas Sodomy Laws”). The first was enacted in 1860. It prohibited “the abominable and detestable crime against nature” (punishable by 5-15 years imprisonment). However, this statute did not condemn oral sex, but only anal sex and bestiality. Thus, for a period of 83 years, oral sodomy was not illegal in Texas— whether committed by man and wife, by unmarried male and female, or by homosexuals. The second statute was Article 524, Texas Penal Code Ann., adopted in 1943. It prohibited “carnal copulation” with human or beast (punishable by 2-15 years imprisonment), and condemned all oral and anal sex and bestiality. Thus, for the next 31 years, it was a felony for anyone in Texas — married couples, single males and females, male homosexuals or lesbians — to engage in oral or anal sodomy, even in private with another consenting adult. The third statute, § 21.06, was passed in 1974 as part of the first comprehensive reform of the state’s criminal laws since the initial penal code had been enacted in 1856. It prohibited only homosexual sodomy. All prohibitions against oral or anal sex between consenting adults of opposite sex, whether married or not, were rescinded (as were criminal laws against fornication and adultery). Thus, for the past 8 years in Texas, only homosexuals have been prohibited from engaging in private, consensual sodomy (although punishment was drastically reduced by § 21.06, with no imprison- \ ment and a maximum fine of $200). At' least three sessions of the Texas legislature have rejected attempts to repeal § 21.06, and this is the first direct constitutional attack upon it. There are practical difficulties in prosecuting persons under § 21.06 for private homosexual conduct. If the acts are between two people in private, there may be no witness to testify at trial. Moreover, “the consenting parties to acts of sodomy are equally guilty and their testimony as witnesses for the state would require corroboration.” However, homosexuals have in fact been prosecuted under the Texas sodomy statutes. And, the parties in this case stipulated in the final pretrial order that the plaintiff is “an admitted practicing homosexual”; that he has not been arrested or prosecuted for a violation of § 21.06; but that cases involving violations of this statute “have been prosecuted by various assistant city attorneys and assistant district attorneys” in Dallas; and that both defendants “would prosecute the plaintiff and other homosexuals under § 21.06 if a provable violation of the law came to their attention.” The Facts The following summary of the testimony of the plaintiff, the plaintiff’s experts, and the defendants’ witnesses constitutes this Court’s findings of fact under Fed.R.Civ.P. 52(a). the plaintiff Donald F. Baker, 35, is a former Dallas school teacher who received his master’s degree in education from Southern Methodist University in 1980. He has never been arrested or convicted of any criminal offense. He is an active and devout Christian. And, he is a good citizen, having served as precinct chairman and as a delegate to two state Democratic Party conventions. But Donald Baker is a homosexual. He has never had sex with a woman, or even been sexually aroused by a female. He does engage in private sexual acts with other adult males, but is not capable of doing so with females. Therefore, Donald Baker is also a criminal under § 21.06 of the Texas Penal Code. Baker was a very sincere, very credible witness. While his parents listened in the courtroom, Baker gave the following testimony about his adolescent ignorance of his homosexuality, his disgust and self-loathing upon recognition of it, his isolation and suffering, his suicidal tendencies, and his eventual change from a “homosexual” into a “gay.” Baker was born on April 24, 1947, into a very stable and religious family in Dallas. His grandfather had been an Assembly of God minister, and Baker was very active in this church. He was a leader in various youth activities, including the church choir and the boy scouts. During his junior high school years, when Baker was 13 or 14, he started to become aware that he was somehow “different.” Although he dated some girls because of peer pressure, he found this awkward. He began realizing that he had strong feelings for his male friends, but could not understand his frustration and loneliness. He knew that “queers were bad,” and had no idea that he might be homosexual. In 1965 Baker graduated from high school and attended East Texas State University. There, he became even more aware that he was “different.” He did “some study” of the “general area of homosexuality,” and learned it was illegal. He grew very disappointed in himself, and simply could not understand why he was having feelings that were “wrong” and “criminal” and “sinful.” After two years at East Texas (1965-67), Baker transferred to the University of Texas at Austin. There, he continued his church activities and worked at a campus bookstore. He had never engaged in any homosexual conduct and still did not know he was homosexual. Then, in November of 1967 — when Donald Baker was 20 — he had his first homosexual “experience.” On that day, Baker took a break from work at the bookstore to watch a football game on television in the student union. The room was crowded and Baker soon became aware of a man standing next to him. After a while, Baker looked up, and the man — blond, early twenties, medium height — was staring at Baker, with a look that was “erotic.” Baker felt intense anxiety and attraction. He followed the man to the rest room, but nothing happened. Baker refused the man’s advances, and returned to work, where he broke into sobs. Baker was overwhelmed with fear and with disgust. He knew his desires for sexual contact with the man were wrong, and were contrary to his family and religious values. Baker felt he was a “dirty, nasty thing.” He left work, and went to sing in the church choir, but broke down there, too. He tried to talk to his minister, but could not bring himself to tell the minister what was really wrong. After that day, Baker cut himself off from the world. He refused to open the door to his room or answer the phone for over two weeks. Baker was afraid he had a “disease” and might contaminate others. He was sure that “God hated him” and that “society hated him” and that “his family hated him.” In May of 1968, Baker joined the Navy because “he needed to run away from what he was.” Baker had not engaged in any homosexual conduct while in college, nor would he do so while he was in the Navy. He served in the Navy for four years (1968-72), with an excellent record. During this time, Baker continued to attend church and agonized about “what he was.” He knew that if he was homosexual, then “he wouldn’t have a job, his family would reject him, and he would burn in hell.” Baker prayed for deliverance. In January of 1972, Baker was honorably discharged. He came home to Dallas, but had a “terrible fear,” and left after only two weeks to live with friends in Massachusetts. During the next two years, Baker felt isolated and rejected — his suffering and disgust continued — and he seriously considered suicide. Baker still had not engaged in any homosexual conduct. In 1974, he enrolled at the State University of New York in Cortland, continuing his studies in elementary and secondary school education (graduating cum laude in 1975). One day Baker decided to attend a meeting of a gay organization at Cornell University in Ithaca, thirty miles away. He was nervous, and walked around the Cornell. campus for about an hour. Finally, he sneaked into the building, and stood hidden on a balcony where he could see the meeting down below. It was the first time Donald Baker had ever seen other human beings that he knew were homosexual, too, but who were not ashamed of that fact. At age 27, Donald Baker was starting “to come out of the closet.” He became acquainted with other “gays,” and “learned that that they were not monsters.” During the next year, he studied history, sociology and psychology; he re-examined the Bible and satisfied himself that he could be a devout Christian as well as a homosexual; and he gradually “came to terms with the fact that he was homosexual,” although he was still discreet in telling others. In 1975, Baker returned to Dallas and “came out” to his family, admitting to them that he was homosexual. He obtained a job with the Dallas Independent School District, and taught there for four years (1975-1979) as a language arts and social studies teacher in grades 4-6. His private life as a homosexual did not adversely affect his job performance or his abilities as a teacher. Indeed, Baker was recognized by DISD as an excellent teacher. And, when Baker left DISD in 1979 to return to Southern Methodist University to work on his master’s degree, the School District recommended him for the teaching fellowship which he was awarded. Before completing his master’s degree, Baker became actively involved in gay rights organizations. In 1979, he became Vice-President of the Dallas Gay Political Caucus and, in November of that year, this suit was filed. In 1980, the name of the organization was changed, and Baker became President of the Dallas Gay Alliance. He is also active on state and national levels. Baker also testified that he will continue to engage in private homosexual conduct in violation of § 21.06, but has no intention of doing so in public ... that he does not desire or need psychiatric treatment . . . that § 21.06 does have serious effects upon homosexuals because it makes them criminals ... that this “stigma” encourages police harassment of homosexuals and results in discrimination against homosexuals by employers, apartment owners, domestic relations courts (in child custody matters), and others. the plaintiff’s experts The two principal expert witnesses presented by the plaintiff were Dr. Judd Marmor, a psychiatrist, and Dr. William Simon, a sociologist. Both had studied and written extensively in the area of homosexuality and they are experts in this field. Their qualifications were impeccable (see plaintiff’s exhs. 2, 4) and their testimony established the following facts: Section 21.06 makes “criminals” of a substantial number of individuals in Texas. At least 5% of American males are “exclusive” or obligatory homosexuals — who have no heterosexual experiences and who have no desire to change. This means that there are at least 500,000 exclusive homosexual males in Texas. In addition, some 2-3% of the females in Texas (or, approximately 130,000-200,000) are exclusive lesbians. These “exclusive homosexuals” did not choose to be homosexuals. Obligatory homosexuality is not a matter of choice: it is fixed at an early age — before one even begins to participate in sexual activities — and only a small minority can be changed or “cured,” if at all. Although there are different theories about the “cause” of homosexuality, the overwhelming majority of experts agree that individuals become homosexuals because of biological or genetic factors, or environmental conditioning, or a combination of these and other causes — and that sexual orientation would be difficult and painful, if not impossible, to reverse by psychiatric treatment. Indeed, homosexuality is not a “disease” and it is not, in and of itself, a mental disorder. Although society — and courts— may still grapple with this question, in 1973 the American Psychiatric Association removed homosexuality from its list of psychic disorders, resolving that “homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities” and that “in the reasoned judgment of most American psychiatrists today, homosexuality per se does not constitute any form of mental disease” (plaintiff’s exh. 5). In 1970, 1973 and 1975, respectively, the American Anthropological Association, the American Bar Association, and the American Psychological Association adopted similar resolutions (plaintiff’s exhs. 6, 8, 9). And, in 1975, even the American Medical Association resolved (plaintiff’s exh. 7): “That the American Medical Association support in principle repeal of laws which classify as criminal any form of non-commercial sexual conduct between consenting adults in private, saving only those portions of the law which protect minors, public decorum, or the mentally incompetent.” Each of these resolutions urged the repeal of statutes which, like § 21.06, prohibit only private sexual conduct by consenting adults. If this were done — i.e., if there was a “decriminalization” of homosexual acts in private by consenting adults — this would not result in an increase in homosexuality. In some countries (e.g., England, France, Holland, Finland), homosexual conduct has been decriminalized for years, and there is no greater incidence of homosexuality in those countries than in the United States. Moreover, there have been no adverse side effects in the 21 states that have now decriminalized consensual sodomy between adults in private. There is no basis to assume that criminal laws (like § 21.06) reduce the number of homosexuals. Persons do not choose homosexuality, and only a small percentage of exclusive homosexuals can be cured or changed. Criminal sanctions do not deter homosexual sodomy — because “sex, next to hunger and thirst, is the most powerful drive that human beings experience,” and it is unrealistic to think that such laws will force total abstinence. Moreover, homosexuality has never been stamped out by criminal laws; it has been common in almost every type of society, at all economic levels and among all ethnic and cultural groups. In addition, the existence of these criminal laws, even if they are not enforced (like § 21.06), does result in stigma, emotional stress and other adverse effects. The anxieties caused to homosexuals — fear of arrest, loss of jobs, discovery, etc. — can cause severe mental health problems. Homosexuals, as criminals, are often alienated from society and institutions, particularly law enforcement officials. They do suffer discrimination in housing, employment and other areas. Neither Dr. Marmor nor Dr. Simon could find any legitimate state interest to justify statutes like § 21.06. Although “homophobia” — an exaggerated fear of homosexuals — -may exist among many heterosexuals, there is no rational basis for this. The vast majority of sex crimes committed by adults upon children are heterosexual, not homosexual. Homosexuals do not have a criminal propensity simply because they are homosexuals, any more than heterosexuals do. Homosexuals are not ill or mentally diseased. And, homosexuality in society does not adversely affect the growth and development of children. Accordingly, both of the plaintiffs experts felt there was no rational basis and no state interest that would justify § 21.06. The Court credits the testimony and the opinions of Dr. Marmor and Dr. Simon, particularly since they were uncontradicted —except, as next discussed, by part of the testimony of the defendants’ “expert.” the defendants’ witnesses The defendants presented Dr. James Grigson, a psychiatrist primarily engaged in what he termed “legal psychiatry,” as an expert witness. It was his opinion “that the members of society, including the homosexual individuals, do benefit from the law [against homosexual conduct] which we have" here in the state of Texas.” He did not explain how “members of society” benefited from § 21.06, but testified specifically that it was helpful to children and to homosexuals because: (i) As to children, § 21.06 “primarily reinforces their own super-ego or conscience” and thus fosters their “growth and development” by reinforcing “the culture of society’s norm pattern or expected pattern of behavior.” (ii) As to homosexuals, “if sodomy was decriminalized, it would be harmful to the homosexual, because it would result in a lessening in terms of those individuals going ahead and seeking help and resolving their problems.” Dr. Grigson also testified that, in his opinion, homosexuals “are less stable and have more pathological emotional mental illnesses than the general population as a whole” —and that “homosexuality is an illness and a disease and that certainly homosexual behavior is deviant behavior.” This Court completely discounts Dr. Grigson’s testimony and his opinions. These opinions were not based upon any independent research or supported by “any respected medical or psychiatric literature.” Indeed, Dr. Grigson had personally treated only 40-50 homosexuals in his 19-year practice (although he had seen “a far larger number” just for the purpose of doing evaluations on them) — and he could not name any other psychiatrist who shared his opinion “that homosexuality or private homosexual conduct between consenting adults ought to be criminalized.” Moreover, Dr. Grigson’s opinions were directly contrary to those of the plaintiff’s experts — whose qualifications as experts in the field of homosexuality were outstanding and whose testimony was very credible — and to positions adopted by various medical and psychiatric associations. For example, Dr. Grigson disagreed with the American Psychiatric Association resolution that “homosexuality per se does not constitute any form of mental disease”— and with the American Medical Association resolution supporting “repeal of laws which classify as criminal any form of non-commercial sexual conduct between consenting adults in private.” And, even standing alone, Dr. Grigson’s “opinions” were flawed, inconsistent, and directly contrary to other credible evidence accepted by this Court: (i) As to children, Dr. Grigson conceded that their “normal growth and behavioral patterns” are reinforced by their “parents, school, religion and churches” — but did not even attempt an explanation as to why criminal sanctions against homosexuality would also be needed to reinforce children’s “super-ego or conscience.” Moreover, it is a fact under the evidence in this record (Fed.R.Civ.P. 52) that “sexual preference is fixed at a very early age,” probably before the age of six, and that people do not “choose” to become homosexuals. Thus, there is no basis for Dr. Grigson’s opinion — which is contrary to the medical literature and the opinions of “most American psychiatrists today”— that children might become homosexuals or develop homosexual tendencies unless homosexual conduct is illegal and punished by a $200 fine. (ii) As to homosexuals, the idea that criminal sanctions will cause such anxieties in homosexuals that they will seek psychiatric treatment and be “cured” is not only preposterous — it, too, is contrary to the facts established by the credible evidence in this record (Fed.R.Civ.P. 52): persons do not choose to be homosexuals; most “exclusive homosexuals” do not want to be changed and do not seek any treatment; the “cure rate” for all homosexuals will, at best, be only 30%; and criminal laws simply do not reduce the number of homosexuals in society. In contrast to Dr. Grigson, neither of the two defendants — District Attorney Henry Wade and City Attorney Lee Holt — could even attempt to explain how § 21.06 furthers the state’s interests in protecting decency, the welfare of society, procreation, morality, or any other interest. Wade testified (by deposition): “... Can you explain to me how this law furthers the state interest of decency, if any, by prohibiting private homosexual conduct but permitting private heterosexual conduct that constitutes deviate sexual conduct, as defined by the statute? “A. No. “Q. You also indicate ... that one of the purposes of this law is to further the welfare of society. And what I’d like to know is what kind of societal welfare is furthered by a law that intrudes into the bedroom of consenting sexual adults? “A. I don’t know of any. There may be some. “Q. And I take it since you don’t know of any, you don’t know how it’s furthered by the statute? “A. No. “Q. Do you know how this statute furthers the welfare of society by prohibiting homosexual sodomy but permitting heterosexual sodomy? “A. No. “Q. And can you explain to me. how this statute furthers the state interest, if any, in procreation by permitting heterosexual sodomy, but prohibiting homosexual sodomy? “A. I didn’t even know it permitted either one. “Q. What it does on its face, for your information, is prohibits private deviate sexual intercourse between persons of the same sex, but by its very language and also by your answers to discovery, you’ve admitted that it does not prohibit private deviate sexual intercourse by members of a different sex. “A. I don’t think procreation is involved in either one of them; is it? “Q. How does this law further morality of society by prohibiting private homosexual sodomy but permitting private heterosexual sodomy? “A. I don’t really know.” City Attorney Holt also testified (by deposition) that he had no knowledge of any way in which “private consenting homosexual conduct frustrates procreation” or protects the “morals” of society. But both Wade and Holt felt the legislature “must” have had some public interest in mind or they would not have passed § 21.06. District Attorney Wade testified: “Q. In your candid opinion with 30 years experience as a prosecutor, public prosecutor in Dallas County, do you know of any public interest, any public interest, period, furthered by this statute? “A. Well, I think the legislature wouldn’t have passed it if there wasn’t a public interest in it. “Q. You also indicate in your answers that one legally, or one state interest that is furthered by the statute is one of ‘morals.’ What state interest, if any, is there in the morality of private sexual conduct that you know of? “A. The only thing I know, the legislature, after hearings, passed a law against it. I assume they had some public interest in it or they wouldn’t have passed it.” Similarly, City Attorney Holt testified that the “legitimate interest” would have “to be for others to say because I think it has to be determined from the intent of the legislature and those to whom they looked for advice in passing these laws.” However, no legislative history is available (see Appendix A) to assist the Court in determining the intent of the legislature in passing § 21.06 — i.e., why the penalties against oral and anal sodomy between males and females were repealed, but those against private and consensual homosexual conduct were retained. Contrary to the testimony of. defendants Wade and Holt, there is no evidence (indeed, even no indication) that any of the interests advanced to support § 21.06 — “morality, decency, health, welfare, safety, and procreation”— were considered by the legislature when this statute was passed as part of the general revision of the Penal Code. The same interests were advanced by the state to justify the predecessor sodomy statute, Article 524, which condemned all sodomy — whether by married couples, single males and females, or homosexuals. If these interests (morality, decency, etc.) no longer justified the prohibition against heterosexual sodomy in 1974 when § 21.06 was enacted, how did they continue to justify the condemnation of private homosexual conduct? And, if they did, were they so weakened that they no longer warranted a punishment of imprisonment (2-15 years), but only a fine of $200 or less? In fact, the legislature did not even condemn all homosexual conduct by § 21.06. That statute, as passed in 1974, prohibited only contact between the genitals of one person and the mouth or anus of another of the same sex. It did not prohibit homosexuals from kissing or sexually stimulating their partner with hands and fingers. Nor did § 21.06 condemn the use of an artificial device, such as a vibrator or dildo (until an amendment in 1981 which also prohibited “the penetration of the genitals or the anus of another person with an object”). Because of these — and other puzzling inconsistencies in the Penal Code — it seems likely that political considerations motivated the legislature in passing § 21.06. The Law The following discussion constitutes this Court’s conclusions of law under Fed.R. Civ.P. 52(a). The Right of Privacy The “right of privacy” protects certain fundamental personal liberties from undue interference by government. Carey v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Although Supreme Court opinions have found various constitutional provisions to be the source of this right of privacy — the first amendment’s freedoms of association and of speech; the due process and equal protection clauses of the fourteenth amendment; the fourth and the ninth amendments; the “penumbras” of specific guarantees of the Bill of Rights— its existence is now “an established part of our constitutional jurisprudence.” Dike v. School Board, 650 F.2d 783 (5th Cir.1981). It is clear that the right of privacy protects individual decisions concerning marriage, procreation, contraception, abortion, and family relationships — and that any government regulation upon such fundamental rights “may be justified only by a compelling state interest and must be narrowly drawn to express only the legitimate state interests at stake.” Dike v. School Board, 650 F.2d at 786-87. However, the “outer limits” of the right of privacy have not been established. Carey v. Population Services, 431 U.S. at 684, 97 S.Ct. at 2015. Development of this area of the law has proceeded on almost a case-by-case basis, and there are still other fundamental personal liberties — besides those involved in past Supreme Court decisions— that are protected by the right of privacy. Does the right of privacy extend to private sexual behavior between consenting adults? In particular: Can a husband and wife be subjected to criminal prosecution for engaging in oral or anal sex in the privacy of their own home? Can a state law constitutionally prohibit unmarried males and females from engaging in oral or anal sodomy or, indeed, any extramarital sexual relations? Can a homosexual be prosecuted for sexual conduct with another adult homosexual, consensually and in private? The Supreme Court has not answered these questions in any opinion. Indeed, it has refused to do so on several occasions, including these three cases: Buchanan v. Batchelor, 308 F.Supp. 729 (N.D.Tex.1970), rev’d on other grounds sub nom, Wade v. Buchanan, 401 U.S. 989, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971); Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199 (E.D.Va.1975), summary affirmance without opinion, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976); and New York v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (N.Y.1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981). Buchanan v. Batchelor In Buchanan v. Batchelor, 308 F.Supp. 729 (N.D.Tex.1970), a three-judge panel (Goldberg, Circuit Judge; Hughes and Taylor, District Judges) held that the Texas sodomy statute (Article 524) — which then prohibited all oral and anal sex, whether by heterosexuals or homosexuals — was unconstitutional because it violated the right of privacy of married couples by subjecting them to felony prosecution for private acts of sodomy, “an intimate relation of husband and wife.” The court stated: “Sodomy is not an act which has the approval of the majority of the people. In fact such conduct is probably offensive to the vast majority, but such opinion is not sufficient reason for the State to encroach upon the liberty of married persons in their private conduct. Absent some demonstrable necessity, matters of (good or bad) taste are to be protected from regulation.... ” (308 F.Supp. at 733). The court permanently enjoined the defendant Wade from enforcing Article 524, which “was declared void on its face for unconstitutional overbreadth.” However, this decision was prior to Eisenstadt, and the court indicated that the right of privacy did not extend to private or public homosexual conduct because neither involved “private acts of the marital relation” (308 F.Supp. at 736). ' On appeal, the Supreme Court did not reach the merits, 401 U.S. 989, 91 S.Ct. 1222, 28 L.Ed.2d 526 (1971), but remanded the case, for consideration as to whether abstention was proper in light of its then-recent decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). However, the three judge panel had specifically noted that “there have been no prosecutions under the Act of married persons for private acts of sodomy”; that it was unclear from the record “whether there have been prosecutions of homosexuals for private acts of sodomy”; that no changes were pending against the intervenors, a married couple (the Gibsons) and a homosexual male (Strickland); but that the homosexual plaintiff, Buchanan, “had twice been arrested and charged” with acts of sodomy with another male in public restrooms (308 F.Supp. at 730-31). Therefore, even if a Younger abstention problem was presented in Buchanan by the homosexual plaintiff, who sought an injunction against two pending state prosecutions for public offenses — none was presented by either of the intervenors, the married couple (who had prevailed in their right of privacy claim) and the homosexual Strickland (who had not prevailed in his). Doe v. Commonwealth’s Attorney Next, in Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199 (E.D.Va.1975), a three-judge panel upheld the constitutionality of a Virginia criminal statute which prohibited oral or anal sodomy by married couples, by unmarried males and females, and by homosexuals. The majority opinion rejected the contention that the right of privacy extends to private homosexual conduct between consenting adults. However, Judge Merhige’s dissenting opinion concluded that, under a proper analysis of the Supreme Court decisions, the right of privacy does protect all private consensual sexual conduct between adults, whether heterosexual or homosexual: “... I view those cases [Roe v. Wade, Griswold v. Connecticut ] as standing for the principle that every individual has a right to be free from unwarranted governmental intrusion into one’s decisions on private matters of intimate concern. A mature individual’s choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern. Private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest. “Griswold, supra, in its context, applied the right of privacy in sexual matters to the marital relationship. Eisenstadt, supra, however, clearly demonstrates that the right to privacy in sexual relationships is not limited to the marital relationship. Both Roe, supra, and Eisenstadt, supra, cogently demonstrate that intimate personal decisions or private matters of substantial importance to the well-being of the individuals involved are protected by the Due Process Clause. The right to select consenting adult sexual partners must be considered within this category. The exercise of that right, whether heterosexual or homosexual, should not be proscribed by state regulation absent compelling justification.” (403 P.Supp. at 1203-04) (Merhige, dissenting). The Supreme Court, without writing an opinion, summarily affirmed the majority decision in Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). However, this summary affirmance does not resolve the issues presented in this case. A summary affirmance is “not of the same precedential value as would be an opinion of the [Supreme] Court treating the same question on the merits.” Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). A summary affirmance does not prevent “lower courts from coming to opposite conclusions except on “the precise issues presented and necessarily determined by those actions.” Illinois State Board v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977). Nor does it bind a lower court when “doctrinal developments” cast substantial doubt upon the summary affirmance. As summarized in Lecates v. Justice of the Peace, 637 F.2d 898 (3rd Cir.1980): “... In short, under Mandel and Illinois State Board, the precedential value of a summary disposition by the Supreme Court is to be confined to the exact facts of the case and to the precise question posed on the jurisdictional statement. Furthermore, indications that there have been doctrinal developments since the summary action will relieve a lower court from the duty to adhere to a summary disposition” (637 F.2d at 904). . Both factors are present here. The jurisdictional statement in Commonwealth’s Attorney did present the same “right of privacy” issue as this case, but — since the Virginia statute proscribed all sodomy, both heterosexual and homosexual — it did not present the “equal protection” claim involved in this case (that § 21.06 invidiously discriminates against homosexuals by prohibiting sodomy by them, but not by heterosexuals). Moreover, even as to the right of privacy issue, two “doctrinal developments” have indicated that little, if any, weight should be given to the summary affirmance in Commonwealth’s Attorney: (i) the decision in Carey v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); and (ii) the denial of certiorari in New York v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981). In Carey v. Population Services, decided less than 15 months after the summary affirmance in Commonwealth’s Attorney, the Supreme Court stated that: “... the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults, ... and we do not purport to answer that question now” (431 U.S. 688 at n. 5, 97 S.Ct. 2018 at n. 5; 431 U.S. 694, n. 17, 97 S.Ct. 2021, n. 17). Carey was a plurality decision. However, Justice Brennan made this comment twice in the opinion — first in footnote 5 of Part III (431 U.S. at 688, 97 S.Ct. at 2018), which was joined by six Justices (Brennan, Stewart, Marshall, Blackmun, Stevens and White); second in footnote 17 of Part IV (431 U.S. at 694, 97 S.Ct. at 2021), which was joined by four Justices (Brennan, Stewart, Marshall, and Blackmun). Thus, six Justices in Carey agreed that the summary affirmance in Commonwealth’s Attorney did not definitively answer the difficult question of whether the right of privacy extends to private sexual conduct between consenting adults. New York v. Onofre Finally, the Supreme Court denied certiorari in a case which — contrary to Commonwealth’s Attorney — held that the right of privacy did extend to private sexual conduct between adults: New York v. Onofre, 434 N.Y.S.2d 947, 415 N.E.2d 936 (N.Y.1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981). The New York sodomy statute prohibited oral and anal sex between homosexuals and between unmarried males and females; it did not condemn sodomy between persons who were married to each other. After reviewing the Supreme Court decisions, the New York Court of Appeals held that the right of privacy does extend to private sexual conduct between consenting adults and that the statute violated this right of the defendants (as well as their rights of equal protection): “... Because the statutes are broad enough to reach noncommercial, cloistered personal sexual conduct of consenting adults and because it permits the same conduct between persons married to each other without sanction, we agree with defendants’ contentions that it violates both their right of privacy and the right to equal protection of the laws guaranteed them by the United States Constitution. “In light of these decisions, protecting under the cloak of the right of privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears for excluding from the same protection decisions — such as those made by defendants before us — to seek sexual gratification from what at least once was commonly regarded as ‘deviant’ conduct, so long as the decisions are voluntarily made by adults in a noncommercial, private setting.” (434 N.Y.S.2d at 949, 951, 415 N.E.2d at 938, 940). The Supreme Court’s denial of certiorari in Onofre, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 is of no precedential value; it does not constitute a decision on the merits of the constitutional questions. Rosenberg v. United States, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687 (1952); Brown v. Allen, 344 U.S. 443, 492, 73 S.Ct. 397, 439, 97 L.Ed. 469 (1953). However, the lower court decisions in Onofre and Commonwealth’s Attorney are inconsistent: the constitutional right of privacy extends to private sexual conduct between consenting adults in New York, but it does not in Virginia. And, there is no Supreme Court opinion that determines which approach is constitutionally correct— and which answers “the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults.” Carey v. Population Services, 431 U.S. at 688 n. 5, 97 S.Ct. at 2018 n. 5. Therefore, despite the summary affirmance in Commonwealth’s Attorney, the question of whether the Constitution permits the use of a state statute (such as § 21.06) to prohibit private consensual homosexual conduct is a proper one for consideration by this Court. private homosexual conduct is protected This Court agrees with the analysis of the right of privacy by the dissenting opinion of Judge Merhige in Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199, and by the majority opinion in New York v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936. Every individual has the right to be free from undue interference by the state in important and intimate personal matters. Decisions concerning a person’s sexual needs or desires are “in a field that by definition concerns the most intimate of human activities and relationships.” Carey, 431 U.S. at 685, 97 S.Ct. at 2016. The right of two individuals to choose what type of sexual conduct they will enjoy in private is just as personal, just as important, just as sensitive — indeed, even more so — than the decision by the same couple to engage in sex using a contraceptive to prevent unwanted pregnancy. Carey, 431 U.S. at 685, 687, 97 S.Ct. at 2016, 2017. “If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted government intrusion into matters fundamentally affecting a person” as the decision to engage in private sexual conduct with another consenting adult. Eisenstadt, 405 U.S. at 453, 92 S.Ct. at 1038. This is true whether it is a husband and wife choosing to engage in oral or anal sex in the privacy of their bedroom — -or whether it is an unmarried male and female privately engaging in extramarital sexual relations of their own choice. And, it is equally true as to a homosexual choosing to engage in sodomy in private with á consenting adult of the same sex. The right of privacy, therefore, does extend to private sexual conduct between consenting adults (whether heterosexual or homosexual) — and any regulation of this fundamental right must be justified by a compelling state interest. The right of privacy is not, as defendants contend, “limited to only two aspects of sexual behavior” — marital intimacy (by virtue of Griswold v. Connecticut) and procreative choice (by reason of Eisenstadt v. Baird). Indeed, Eisenstadt makes it clear that the right of privacy in sexual matters is not limited to married couples: “If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marriage couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. See Stanley v. Georgia, 394 U.S. 557 [89 S.Ct. 1243, 22 L.Ed.2d 542] (1969).. .. ” (405 U.S. at 453, 92 S.Ct. at 1038). Moreover, in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the right of privacy involved neither “marital intimacy” or “procreative choice.” There, the defendant possessed films and printed material which were pornographic. As discussed in New York v. Onofre: “... In Stanley the court found violative of the individual’s right to be free from governmental interference in making important, protected decisions a statute which made criminal the possession of obscene matter within the privacy of the defendant’s home. Although the material itself was entitled to no protection against government proscription (Roth v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498]), the defendant’s choice to seek sexual gratification by viewing it and the effectuation of that choice within the bastion of his home, removed from the public eye, was held to be blanketed by the constitutional right of privacy.” (434 N.Y.S.2d at 950, 415 N.E.2d at 939). See Doe v. Commonwealth’s Attorney, 403 F.Supp. at 1204-05 (Merhige, J., dissenting). Under the Stanley and Eisenstadt extensions of the right of privacy, the plaintiff could possess and enjoy in private pornographic material — movies, videotapes, magazines, books, etc. — which graphically depicts sexual activities by homosexuals. It seems ludicrous to attempt to draw some constitutional distinction, as defendants do, between his right to “seek sexual gratification by viewing” such obscene material, and his right to seek sexual gratification with a consenting adult partner in private. The right of privacy does extend to private, voluntary, intimate relationships — between husband and wife, between unmarried males and females, between homosexuals. Accordingly, homosexual conduct in private between consenting adults is protected by a fundamental right of privacy. Any state restriction upon that right must be justified by some compelling state interest. no state interest The right of privacy is not absolute. But any regulation of this fundamental right “may be justified only by a compelling state interest and must be narrowly drawn to express only the legitimate state interests at stake.” Dike v. School Board, 650 F.2d at 787. Obviously, the state has a compelling interest in regulating some types of sexual conduct — rape, indecent acts in public, sex offenses involving minors, etc. New York v. Onofre, 434 N.Y.S.2d at 952, 415 N.E.2d at 941; Doe v. Commonwealth’s Attorney, 403 F.Supp. at 1204 (Merhige, J., dissenting). But does the state have any interest in regulating private sexual conduct between consenting adults — or in criminally prosecuting homosexuals for private, consensual sodomy? Basically, the defendants claim that the state’s interests justifying the ban on homosexual conduct by § 21.06 are (i) morality and decency, (ii) public health, (iii) welfare and safety, and (iv) procreation. However, the evidence presented at trial did not support any of these claims. Instead, it established that the state has no “compelling interest” to justify § 21.06 — and that, indeed, this statute is not even “rationally related” to any “legitimate state interest.” Silva v. Vowell, 621 F.2d 640, 647 (5th Cir.1980). The defendants did not produce a single witness, or any other evidence, to support the alleged state interests of “morality and decency, welfare and safety, and procreation.” They did present one witness who testified about the state’s supposed interest in “public health” furthered by § 21.06. This was Dr. James Grigson — who was not an expert in the field of homosexuality— but who testified that criminal sanctions against homosexual conduct would promote the health of (i) children, by fostering their growth and development, and (ii) homosexuals, by forcing them to seek psychiatric treatment and be “cured.” These opinions are not based upon any independent research; they are contrary to the medical and psychiatric literature, to the opinions of most American psychiatrists today, and to the very credible evidence given by plaintiff’s experts. For these, and the other reasons discussed above, this Court completely discounts Dr. Grigson’s testimony and opinions. In addition to the lack of any expert testimony supporting the claimed state interests, both District Attorney Wade and City Attorney Holt were unable to explain how § 21.06 furthered the supposed interests of morality or decency, the welfare of society, procreation, or any other interest. Nor was there any evidence that the Texas legislature had even considered these alleged interests when it passed § 21.06 as part of the general revision of the Penal Code in 1974. Therefore, under the record in this case, the defendants have nothing to rely upon but the assertion of general platitudes (morality, decency, etc.). This is totally inadequate to justify § 21.06, as shown by Commonwealth’s Attorney: “The defendants, represented by the highest legal officer of the state, made no tender of any evidence which even impliedly demonstrated that homosexuality causes society any significant harm. No effort was made by the defendants to establish either a rational basis or a compelling state interest so as to justify the proscription of § 8.1 — 212 of the Code of Virginia, presently under attack. “On the basis of this record one can only conclude that the sole basis of the proscription of homosexuality was what the majority refers to as the promotion of morality and decency. As salutary a legislative goal as this may be; I can find no authority for intrusion by the state into the private dwelling of a citizen. Stanley v. Georgia, 394 U.S. 557 [89 S.Ct. 1243, 22 L.Ed.2d 542] ... The Supreme Court has made it clear that fundamental rights of such an intimate facet of an individual’s life as sex, absent circumstances warranting intrusion by the state, are to be respected. My brothers, I respectfully suggest, have by today’s ruling misinterpreted the issue — the issue centers not around morality or decency, but the constitutional right of privacy.” (403 F.Supp. at 1205) (Merhige, J., dissenting). Moreover, the plaintiff’s evidence establishes that there is no compelling state interest served by § 21.06 — and that, indeed, this statute’s condemnation of homosexual conduct is not even rationally related to a legitimate state interest. In particular, this evidence (including the testimony of the experts, Dr. Marmor and Dr. Simon) established the following: Homosexuals are not ill or mentally diseased. They are not criminals. They have no propensity for crimes, those involving sexual offenses or otherwise, any more than heterosexuals. But over 700,-000 individuals are “criminals” in Texas today because of § 21.06. Homosexuality is not a matter of choice. It is fixed at a very early age. Only a small percentage of homosexuals can be changed or “cured” by psychiatric treatment. The numbers of homosexuals in society are not reduced by criminal laws like § 21.06, nor would they be increased if such laws did not exist. Homosexuality is not communicable. The absence of § 21.06 would not lead to increased crime or violence or other threats to public health or safety. This statute does not further the “growth and development” of children and it harms, rather than helps, the mental health of homosexuals. There is simply no rational connection between the acts proscribed by § 21.06 and the claimed interests of morality, decency, health, welfare, safety and procreation. Therefore, § 21.06 is not justified by any “compelling state interest.” Moreover, its prohibition against private homosexual conduct between consenting adults is not even rationally related to any legitimate state interest. Accordingly, § 21.06 is unconstitutional because it violates the plaintiff’s fundamental right of privacy. Equal Protection Section 21.06 does not prohibit sodomy between consenting adults of the opposite sex; only oral or anal sex between consenting adults of the same sex is illegal. Thus, on its face, § 21.06 discriminates against homosexuals by making acts criminal when committed by them, but not by heterosexuals. This violates the plaintiff’s right to equal protection of the law unless the discrimination between heterosexuals and homosexuals bears “some rational relationship to legitimate state purposes.” San Antonio School District v. Rodriquez, 411 U.S. 1, 40, 93 S.Ct. 1278, 1300, 36 L.Ed.2d 16 (1973); Silva v. Vowell, 621 F.2d 640, 647 (5th Cir.1980). As discussed in the preceding section, the evidence in this case established that none of the interests claimed by defendants (morality and decency, public health, welfare and safety, and procreation) were furthered by § 21.06 — and that this statute is not “rationally related” to any “legitimate state interest.” Indeed, the defendant Wade conceded this; he testified that he knew of no rational basis for the discrimination in § 21.06 between homosexual sodomy and heterosexual sodomy: “Q. Doesn’t the statute, § 21.06, doesn’t it permit private sodomy by heterosexuals but not homosexuals? “A. I wouldn’t even know that, but I’m taking your word for it. “Q. Assume it does. “A. Yeah. “Q. What rational basis is there for that classification, if you know of any? “A. I don’t know of any.” Therefore, § 21.06 is invalid because it violates the plaintiff’s right to equal protection. New York v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936, held that a statute which prohibited sodomy between unmarried persons (whether heterosexual or homosexual), but not between married couples, was unconstitutional: “As to The Denial of defendants’ right to equal protection. Section 130.38 of the Penal Law on its face discriminates between married and unmarried persons, making criminal when done by the latter what is innocent when done by the former. With that distinction drawn, we look to see whether there is, as a minimum, ‘some ground of difference that rationally explains the different treatment accorded married and unmarried persons’ under the statute ... In our view, none has been demonstrated or identified by the People ... The statute therefore must fall as violative of the right to equal protection enjoyed by persons not married to each other.” (434 N.Y.S.2d at 953, 415 N.E.2d at 942). Accord: Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). plaintiff’s claims The plaintiff claims that the “rational relationship” test is too lenient, and that the state must show a “compelling state interest” in order to justify the discrimination in § 21.06. Two arguments are advanced: (i) that § 21.06 discriminates on the basis of sex “in that a male may commit sodomy with a female, but not with a male, and a female may indulge in sodomy with a male, but not with a female”; (ii) that homosexuals constitute members of a “suspect class” — and, like the previously recognized suspect classes of race, religion, national origin, and alien-age — are entitled to the “compelling state interest” standard of review under Frontiero v. Richardson, 411 U.S. 677 [93 S.Ct. 1764, 36 L.Ed.2d 583] (1973). Alternatively, the plaintiff contends that this Court should apply “the emerging intermediate level of review” which has been approved by the Supreme Court in equal protection cases involving discrimination on the basis of gender and illegitimacy.” Here, the plaintiff relies upon such cases as Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) and Plyler v. Doe,- U.S. -, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). It is not necessary to reach these contentions. This opinion has concluded that the plaintiff’s right of privacy is violated because no “compelling state interest” justifies § 21.06 — and that there is a denial of equal protection because § 21.06 “bears no rational relationship to any legitimate state interest.” Obviously, under either of the two equal protection standards urged by the plaintiff (“compelling state interest” or “intermediate level of review”), this Court would conclude that there is a denial of equal protection by § 21.06. public distaste The defendants claim that “it is undisputed that homosexual sodomy, far from being a proud and cherished tradition, is a practice which has been abhorred in western civilization and has long inspired an almost universal phobic response.” Similar statements are found in some of the cases involving Texas sodomy statutes. See Appendix A; Dawson v. Vance, 329 F.Supp. 1320 (S.D.Tex.1971). These are overstatements. In several countries today, homosexuality is not criminal; and it has been decriminalized, without adverse effects, in some 21 states in this country. But even if there is widespread public distaste, this would not be any “legitimate state interest” to rationalize a denial of equal protection — nor would it be a “compelling state interest” to justify a denial of the right of privacy. See United States v. Moreno, 413 U.S. 528, 534-35, 93 S.Ct. 2821, 2825-26, 37 L.Ed.2d 782 (1973). As discussed in New York v. Onofre: “... it has been deemed irrelevant by the United States Supreme Court that the purchase and use of contraceptives by unmarried persons would arouse moral indignation among broad segments of our community or that the viewing of pornographic materials even within the privacy of one’s home would not evoke general approbation (Eisenstadt v. Baird, Stanley v. Georgia). We are not unmindful of the sensibilities of many persons who are deeply persuaded that consensual sodomy is evil and should be prohibited. That is not the issue before us.... The community and its members are entirely free to employ theological teaching, moral suasion, parental advice, psychological and psychiatric counseling and other noncoercive means to condemn the practice of consensual sodomy. The narrow question before us is whether the Federal Constitution permits the use of the criminal law for that purpose.” (434 N.Y.S.2d at 951 n. 3, 415 N.E.2d at 940 n. 3). Indeed, the Supreme Court has emphasized that cases involving controversial sexual issues must be resolved “by constitutional measurement, free of emotion and free of predilection” because the Constitution is made for people of fundamental differing views, and “the accident” of our finding certain opinions “novel and even shocking ought not to conclude our judgment upon the question” of constitutionality. Roe v. Wade, 410 U.S. at 116-17, 93 S.Ct. at 708-09, quoting the “now-vindicated dissent” of Justice Holmes in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905). Additional Matters Several other matters raised by the parties must be addressed to show their consideration — and rejection — by this Court. establishment of religion The plaintiff’s claim that § 21.06 violated the establishment clause of the first amendment was a second-line attack upon this statute. The evidence did not establish any such constitutional violation. To the contrary, the testimony of the plaintiff’s expert in religion (Dr. Furnish) was that private consensual homosexual conduct was not condemned by the bible, although he conceded other scholars disagreed with his opinions (see note 12). The plaintiff claims that, despite this disagreement among biblical scholars, “it is clear that Biblical law has b