Muth, Allen A. v. Frank, Matthew J. ( 2005 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 03-3984
    ALLEN A. MUTH,
    Petitioner-Appellant,
    v.
    MATTHEW J. FRANK, Secretary,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 01 C 398—Lynn Adelman, Judge.
    ____________
    ARGUED NOVEMBER 12, 2004—DECIDED JUNE 22, 2005
    ____________
    Before BAUER, MANION, and EVANS, Circuit Judges.
    MANION, Circuit Judge. Allen Muth and his younger sister
    Patricia married and had three children. After they aban-
    doned the middle child, who was disabled, the State of
    Wisconsin petitioned to terminate their parental rights
    because of their incestuous parenthood. After the courts
    approved the termination, both Allen and Patricia were
    convicted of incest and sentenced to years in prison. In this
    petition for a writ of habeas corpus, Allen Muth argues that
    Wisconsin’s incest statute is unconstitutional insofar as it
    2                                                 No. 03-3984
    seeks to criminalize a sexual relationship between two
    consenting adults. The district court denied the petition. We
    affirm.
    I.
    Allen Muth and his adult sister, Patricia, were arrested by
    the State of Wisconsin in 1997 and charged with incest in
    violation of Wisconsin law. The facts leading up to this
    1
    arrest are not pleasant. Among fourteen children in a dys-
    functional family, Allen was one of the oldest and Patricia
    one of the youngest. During their childhood they were in
    and out of foster care, and they and several other siblings
    were involved in a cycle of sexual abuse and incest. Al-
    though they were separated for some length of time, at
    about the time Patricia reached the age of majority she and
    Allen became reunited and got married. During their mar-
    riage they had three children (apparently she had one other
    child prior to the marriage). The incestuous relationship
    came to the State’s attention when their middle child,
    Tiffany, was “removed from her parental home and placed
    in foster care because [Patricia] and Allen had abandoned
    her at the home of a baby-sitter.” Allen M., 571 N.W.2d at
    873.
    After a series of progressive separation procedures,
    the State filed a petition to terminate Patricia and Allen’s
    parental rights to Tiffany because of their incestuous parent-
    hood of Tiffany. Neither Patricia nor Allen contested the
    evidence of their incest, and consequently the trial court
    found Patricia and Allen unfit. The evidence at that trial
    1
    The preliminary facts set out here are derived from State v.
    Allen M., 
    571 N.W.2d 872
    , 873 (Wis. Ct. App. 1997) (hereinafter
    Allen M.).
    No. 03-3984                                                       3
    indicated that Tiffany was significantly underdeveloped
    and that “she was a non-verbal, three and one-half year old
    who behaved and physically appeared to be more like a
    two-year-old child. She was not toilet trained or able to feed
    herself and she displayed little or no emotion.” 
    Id. at 874
    .
    Other evidence indicated that the child was significantly
    neglected and that Patricia and Allen had no relationship
    with the child. The court concluded that Tiffany’s best
    interests would be served by the termination of the parental
    rights of her biological parents.
    On appeal to the Wisconsin Court of Appeals, Patricia and
    Allen challenged the constitutionality of 
    Wis. Stat. § 48.415
    (7), which provides that incestuous parenthood is a
    2
    ground for termination of parental rights. The Muths
    claimed that the termination of their parental rights based
    on their incestuous parenthood of Tiffany denied them due
    process of law and their rights to equal protection of the
    law. The court denied those claims and affirmed the trial
    court. Allen M., 
    571 N.W.2d 872
    .
    Given the facts exposed in Allen M., the State of Wisconsin
    arrested Allen and Patricia and charged them with incest, in
    violation of Wisconsin’s criminal incest statute, which
    provides that:
    Whoever marries or has nonmarital sexual intercourse
    with a person he or she knows is a blood relative and
    such relative is in fact related in a degree within which
    2
    
    Wis. Stat. § 48.415
     provides that: “Grounds for termination of
    parental rights shall be one of the following: . . . (7) Incestuous
    parenthood, which shall be established by proving that the
    person whose parental rights are sought to be terminated is also
    related, either by blood or adoption, to the child’s other parent in
    a degree of kinship closer than 2nd cousin.”
    4                                                     No. 03-3984
    the marriage of the parties is prohibited by the law of
    this state is guilty of a Class F felony.
    3
    
    Wis. Stat. § 944.06
    .
    Prior to trial, Allen moved to dismiss the criminal com-
    plaint against him, on the basis that Wisconsin’s incest stat-
    ute was unconstitutional insofar as it sought to criminalize
    a sexual relationship between two consenting adults. The
    trial court denied the motion and conducted a bench trial.
    Both Allen and Patricia were convicted on November 11,
    1997. Allen was sentenced to eight years in prison and
    Patricia was sentenced to five years’ imprisonment.
    The Wisconsin Court of Appeals affirmed Allen’s convic-
    tion in January 2000. In its opinion, the court noted that the
    issue before it was whether Wisconsin’s incest statute was
    unconstitutional. Wisconsin v. Muth, 98-1137-CR, slip op. at 1
    (Wis. Ct. App. Jan. 20, 2000) (hereinafter Muth I). The Court
    of Appeals also noted that it agreed with the trial court’s
    conclusion that Allen Muth (hereinafter Muth) had no
    privacy right in having sexual relations with his sister but
    3
    Wisconsin thus criminalizes a sexual and/or marital relation-
    ship as incest if the parties could not marry due to a close blood
    relationship. Section 765.03(1) of the Wisconsin Statutes, in turn,
    prohibits marriage between “persons who are nearer of kin than
    2nd cousins. . . .” 
    Wis. Stat. § 765.30
    (1). There is an exception to
    this prohibition of marriage for “first cousins where the female
    has attained the age of 55 years or where either party, at the time
    of application for a marriage license, submits an affidavit signed
    by a physician stating that either party is permanently sterile.” 
    Id.
    Read together, these statutes criminalize sexual intercourse
    where the following blood relationships exist: parent/child; sib-
    lings; grandparent/grandchild; uncle or aunt/niece or nephew;
    and first cousins (with certain exceptions). At the time of Muth’s
    conviction and sentencing, incest was a Class C Felony.
    No. 03-3984                                                          5
    ultimately concluded that “we need not address [the trial
    court’s conclusion] because we have already concluded in
    [Allen M.] that the State may legitimately prohibit incestu-
    ous relationships.” 
    Id. at 2
    . The Wisconsin Supreme Court
    denied Muth’s petition for discretionary review.
    Having exhausted all state remedies, on April 20, 2001,
    Muth filed this petition for a writ of habeas corpus with
    the United States District Court for the Eastern District of
    Wisconsin. He challenged the constitutionality of the statute
    that criminalized incestuous relationships. Before the
    completion of briefing by the parties, the United States
    Supreme Court issued its decision in Lawrence v. Texas, 
    539 U.S. 558
     (2003). In that case, the Supreme Court held that a
    4
    Texas statute prohibiting homosexual sodomy was uncon-
    stitutional insofar as it applied to the private conduct of two
    consenting adults. 
    Id. at 578-79
    .
    4
    In his concurring opinion, our colleague suggests that the
    term “homosexual sodomy” is used by this court in a pejorative
    fashion. Use of the word sodomy or “homosexual sodomy” to
    discuss the sexual conduct Lawrence addressed is not original to
    this decision. The majority opinion in Lawrence used the term
    “sodomy” no less than seventeen times and the phrase “homo-
    sexual sodomy” twice. Justice O’Connor’s concurring opinion
    described the Texas law (and similar laws) at issue in Lawrence as
    a law relating to sodomy twenty-four times. We also note
    that several federal cases and innumerable commentators post-
    Lawrence have described the holding of that case, or the Texas law
    at issue in the case, as relating to sodomy or, more precisely,
    homosexual (or some equivalent such as “same-sex”) sodomy.
    See, e.g., Williams v. Attorney Gen. of Ala., 
    378 F.3d 1232
    , 1236 (11th
    Cir. 2004), cert. denied, ___ U.S. ___, 
    125 S.Ct. 1335
     (2005); D.L.S.
    v. Utah, 
    374 F.3d 971
    , 975 (10th Cir. 2004); Anderson v. Morrow, 
    371 F.3d 1027
    , 1034 n.4 (9th Cir. 2004).
    6                                                 No. 03-3984
    On October 3, 2003, the district court denied Muth’s peti-
    tion. Muth v. Wisconsin, No. 01-C-0398 (E.D. Wis. Oct. 3,
    2003) [hereinafter Muth II]. The court, applying the standard
    of review provisions set forth in the Antiterrorism and
    Effective Death Penalty Act of 1996, 
    28 U.S.C. § 2254
    (d)(1)
    (“AEDPA”), held that Lawrence was not “clearly estab-
    lished” Supreme Court precedent at the time of the
    Wisconsin Court of Appeals’ decision on direct appeal. As
    such, the district court held that it could not grant habeas
    relief even if the Court of Appeals’ decision was contrary to
    Lawrence. Muth II, at 5. The district court subsequently
    denied Muth a certificate of appealability. This court, how-
    ever, granted a certificate to determine if Lawrence should
    apply retroactively. This appeal followed.
    II.
    Because of the limited power of a federal court to issue a
    writ of habeas corpus in a matter involving a state prisoner,
    a central focus of this case is whether and to what extent this
    court should even consider the Supreme Court’s decision in
    Lawrence. AEDPA instructs a federal court reviewing a state
    conviction on habeas review to determine whether the
    decision of the last state court to adjudicate the merits of the
    petitioner’s claim was reasonably correct as of the time the
    decision was made. As discussed below, only in limited
    circumstances are legal developments occurring after the
    state court’s decision considered.
    Lawrence was decided after Muth’s conviction and the
    exhaustion of his state post-conviction remedies. Muth has
    not identified, and we have not found, a federal court deci-
    sion (and certainly not a Supreme Court decision) prior to
    the Wisconsin Court of Appeals decision in Muth I that even
    discussed whether criminal penalties for incest might be
    No. 03-3984                                                  7
    unconstitutional. The closest decision having some bearing
    and still valid in 2001 was the Supreme Court’s decision in
    Bowers v. Hardwick, 
    478 U.S. 186
     (1986), overruled by Law-
    rence, 
    539 U.S. at 578
    . In that case, the Court held that a
    Georgia law banning sodomy was not unconstitutional even
    when applied to consenting adults. Although Bowers did not
    deal with incest, it can be safely assumed that a court
    unwilling to find a law banning sodomy unconstitutional
    would be no more inclined to find a law prohibiting incest
    unconstitutional.
    Because Lawrence overruled Bowers, and because there is
    no other related precedent, Muth understandably invokes
    Lawrence as his only hope for success. The district court held,
    however, that Lawrence could not be considered because it
    was not clearly established in 2001 when the Wisconsin
    Court of Appeals issued its decision in Muth I. At this point
    we need first to review the district court’s decision that
    Muth I was an adjudication on the merits and if so, whether
    AEDPA standards of review applied to Muth’s claim
    (Part A). Next, we consider the question raised sua sponte by
    this court in its order granting Muth the certificate of
    appealability: whether Lawrence is retroactively applicable
    (Part B).
    A. Whether Muth I was an adjudication on the merits.
    Under AEDPA, a federal court may issue a writ of habeas
    corpus in cases involving prisoners convicted by a state only
    where the applicable state court proceedings:
    (1) resulted in a decision that was contrary to, or in-
    volved an unreasonable application of, clearly estab-
    lished Federal law, as determined by the Supreme Court
    of the United States; or
    8                                                 No. 03-3984
    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.
    
    28 U.S.C. § 2254
    (d)(1)-(2). This case is concerned only with
    subsection (d)(1).
    “[A] state court decision is ‘contrary to’ federal law if
    the state court either incorrectly laid out governing Supreme
    Court precedent, or, having identified the correct rule of
    law, decided a case differently than a materially factually
    indistinguishable Supreme Court case.” Conner v. McBride,
    
    375 F.3d 643
    , 649 (7th Cir. 2004), cert. denied, ___ U.S. ___,
    
    125 S.Ct. 1399
     (2005). “An ‘unreasonable application’ of
    Supreme Court precedent occurs when ‘the state court
    identifies the correct governing legal rule . . . but unreason-
    ably applies it to the facts of the particular state prisoner’s
    case’ or ‘if the state court either unreasonably extends a
    legal principle from [the Court’s] precedent to a new context
    where it should not apply or unreasonably refuses to extend
    that principle to a new context where it should apply.’ ”
    Dixon v. Snyder, 
    266 F.3d 693
    , 700 (7th Cir. 2001) (quoting
    Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000)). “Clearly estab-
    lished” Supreme Court precedent is “the holdings, as
    opposed to the dicta, of the [Supreme] Court’s decisions as
    of the time of the relevant state-court decision.” Lockyer v.
    Andrade, 
    538 U.S. 63
    , 71 (2003).
    The district court held that because Lawrence had not been
    decided at the time the Wisconsin Court of Appeals denied
    Muth’s appeal, it obviously could not be clearly established
    Supreme Court precedent. Importantly, however, before
    applying the “clearly established” standard of review, the
    reviewing court must first determine whether the claim
    “was adjudicated on the merits in State court proceedings.” 
    28 U.S.C. § 2254
    (d) (emphasis added). In other words, § 2254’s
    No. 03-3984                                                   9
    standards apply only when a state court has decided the
    merits of the issue raised by the petitioner. If the state court
    did not reach the merits, § 2254 does not apply and this
    court applies the general habeas standard set forth at 
    28 U.S.C. § 2243
    . Braun v. Powell, 
    227 F.3d 908
    , 916-17 (7th Cir.
    2000).
    The question then is whether the Wisconsin Court of
    Appeals reached the merits of Muth’s constitutional claim.
    If it did, a writ will issue only if pre-Lawrence precedents of
    the Supreme Court (leaving aside for the moment whether
    Lawrence is retroactive and whether it even applies) clearly
    established that criminalizing incestuous conduct between
    two consenting adults was unconstitutional. As we indi-
    cated above, Muth has no hope for a writ if Lawrence cannot
    be considered. If, however, the Court of Appeals did not
    reach the merits, AEDPA does not apply and this court may
    consider Lawrence in determining whether to issue a writ.
    Muth argues that the Wisconsin Court of Appeals did
    not reach the merits of his constitutional claim. As noted
    above, in Muth I the Court of Appeals stated that it agreed
    with the decision of the trial court that Muth did not have a
    privacy right to have sexual intercourse with his sister. It
    also decided, however, that it did not have to reach the
    conclusion reached by the trial court because it had already
    decided that the state could prohibit incestuous relation-
    ships in an earlier case—State v. Allen M. Muth I, slip op. at
    2 (“Because we have already concluded that the State has a
    compelling interest in prohibiting incest, we reject Muth’s
    challenges to the constitutionality of the incest statute.”).
    Muth argues that the Court of Appeals did not adjudicate
    the merits of his claim because the court in Allen M. did not
    consider the criminal statute at issue here. Instead, Allen M.
    considered Wisconsin’s statute that permits the termination
    of parental rights where the children are the product of an
    10                                                    No. 03-3984
    incestuous relationship. Allen M., 
    571 N.W.2d at 876
    . Muth
    thus argues that the Court of Appeals misread or mis-
    applied its earlier decision in Allen M. According to Muth,
    Allen M. dealt with a different statute and did not stand
    for the proposition the court in Muth I suggested it did.
    Because the Court of Appeals relied solely on Allen M. to
    decide Muth I, and Allen M. did not resolve the claim under
    
    Wis. Stat. § 944.06
     at issue in Muth I, according to Muth,
    Muth I was not an adjudication on the merits.
    We disagree. Even assuming the Wisconsin Court of
    Appeals misread or misapplied Allen M., the decision in
    Muth I was an adjudication on the merits of Muth’s claim
    that Wisconsin’s criminal prohibition of incest was un-
    constitutional insofar as it applied to the private conduct
    of two consenting adults. AEDPA’s requirement that a
    petitioner’s claim be adjudicated on the merits by a state
    court is not an entitlement to a well-articulated or even a
    5
    correct decision by a state court. In fact, several circuits
    5
    If a state court specifically identifies a claim it must identify
    and review the correct claim. In Appel v. Horn, 
    250 F.3d 203
    , 210-11
    (3d Cir. 2001), the Third Circuit found that the AEDPA standards
    of review did not apply where “petitioner had properly pre-
    sented in the state courts a claim of the constructive denial of
    counsel but that the state courts had misconstrued the claim as
    one of the ineffective assistance of counsel.” Chadwick v. Janecka,
    
    312 F.3d 597
    , 605 (3d Cir. 2003) (describing Appel) (emphasis in
    the original). It stands to reason that a petition is subject to
    AEDPA’s standards of review only when a petitioner has had
    his claim reviewed by a state court. If a court considers another
    claim, it has not considered his claim. In this case, however, Muth
    does not suggest that the Wisconsin Court of Appeals did not
    correctly identify his claim. The Wisconsin Court correctly
    identified Muth’s claim on the first page of its opinion: “The issue
    (continued...)
    No. 03-3984                                                    11
    have held that a state court need not offer any reasons and
    summarily dispose of a petitioner’s claim and that summary
    disposition would be an adjudication on the merits.
    Chadwick v. Janecka, 
    312 F.3d 597
    , 606 (3d Cir.), cert. denied,
    
    538 U.S. 1000
     (2003); Wright v. Dep’t of Corr., 
    278 F.3d 1245
    ,
    1254-55 (11th Cir. 2002), cert. denied, 
    538 U.S. 906
     (2003);
    Sellan v. Kuhlman, 
    261 F.3d 303
    , 310-12 (2d Cir. 2001); Bell v.
    Jarvis, 
    236 F.3d 149
    , 158-62 (4th Cir. 2000) (en banc); Harris
    v. Stovall, 
    212 F.3d 940
    , 943 n.1 (6th Cir. 2000); Aycox v. Lytle,
    
    196 F.3d 1174
    , 1177-78 (10th Cir. 1999); James v. Bowersox,
    
    187 F.3d 866
    , 869 (8th Cir. 1999); Delgado v. Lewis, 
    181 F.3d 1087
    , 1091-92 n.3 (9th Cir. 1999), vacated on other grounds by,
    
    528 U.S. 1133
     (2000); see also Weeks v. Angelone, 
    528 U.S. 225
    ,
    6
    237 (2000).
    An adjudication on the merits is perhaps best understood
    by stating what it is not: it is not the resolution of a claim on
    procedural grounds. See Sellan, 
    261 F.3d at 311
     (“ ‘Adjudi-
    cated on the merits’ has a well settled meaning: a decision
    finally resolving the parties’ claims, with res judicata effect,
    that is based on the substance of the claim advanced, rather
    than on a procedural, or other, ground.”); Neal v. Puckett,
    
    286 F.3d 230
    , 235 (5th Cir. 2002) (“adjudication ‘on the
    merits’ is a term of art that refers to whether a court’s
    disposition of the case was substantive as opposed to
    5
    (...continued)
    on appeal is whether Wisconsin’s incest statute, 
    Wis. Stat. § 944.06
     (1997-98) is constitutional.” Muth I, slip op. at 1.
    6
    In Weeks, the Supreme Court considered, under the deference
    rules set forth in AEDPA, a claim rejected without explanation by
    the Virginia Supreme Court. Weeks, 
    528 U.S. at 237
    . Thus, the
    Supreme Court implicitly treated a summary disposition by a
    state court as an adjudication on the merits.
    12                                                  No. 03-3984
    procedural”), cert. denied, 
    537 U.S. 1104
     (2003). It is only after
    a federal court has determined that a state court has adjudi-
    cated a claim on the merits that the correctness of the state
    7
    court’s decision is considered. Only then can a federal court
    consider a court’s reasoning (assuming it has provided one,
    see above). The district court in this case put it quite suc-
    cinctly:
    Nevertheless, the fact that the court of appeals may
    have misread or misapplied its own precedent does not
    mean that it did not adjudicate the merits of Muth’s
    constitutional challenge as required by § 2254(d). As
    noted, the court of appeals framed the issue as whether
    the incest statute was constitutional and went on to hold
    that it was. The court’s poor reasoning may provide a
    basis for finding that its decision was “contrary to” or
    involved an “unreasonable application” of clearly es-
    tablished federal law, but it is not grounds for finding
    that the court failed to adjudicate the claim on the
    merits.
    Muth II, slip op. at 7.
    Viewed thus, it is clear the Wisconsin Court of Appeals
    adjudicated Muth’s appeal on the merits. Because it did, our
    review is limited to determining whether the decision
    reached by Muth I was contrary to “clearly established
    Federal law” at the time that Muth I was decided. Unless
    Lawrence is retroactive, that is unless it applies to cases that
    became final prior to June 26, 2003 (the date Lawrence was
    7
    Under AEDPA, a state court decision need not even be correct
    in the view of the reviewing federal court. The decision need only
    not be “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme
    Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1).
    No. 03-3984                                                       13
    decided), it should not even be considered in resolving
    Muth’s claim. We thus turn next to the retroactivity ques-
    tion.
    B. Whether Lawrence should be retroactively applied to
    Muth.
    As noted above, this court, in its order granting Muth a
    certificate of appealability, raised sua sponte the following
    issue: whether the Lawrence decision should be retroactively
    applied to Muth. In considering this issue, the parties
    focused primarily on the Supreme Court’s decision in
    Teague v. Lane, 
    489 U.S. 288
     (1989). In Teague, a plurality of
    justices held that a petitioner for a writ of habeas corpus
    would not have the benefit of new constitutional rules of
    criminal procedure announced by the Supreme Court after
    the petitioner’s conviction had become final. Teague, 489 U.S
    8
    at 310 (O’Connor, J., plurality opinion). There are two
    “exceptions” to this doctrine of non-retroactivity: 1) the rule
    “places a class of private conduct beyond the power of the
    State to proscribe,” 
    id. at 311
     (quoting Mackey v. United
    States, 
    401 U.S. 667
    , 692 (1971) (Harlan, J., concurring in part
    and dissenting in part)), or; 2) the rule is a “watershed rule”
    that implicates the fundamental fairness and accuracy of the
    criminal proceeding, 
    id.
    Muth argues that the first exception applies here, that
    is, Lawrence announced a new rule that placed his private
    conduct (an act of incest with a consenting adult) beyond
    8
    A majority of the Court’s justices have since ratified the plur-
    ality decision in Teague. See, e.g., Gray v. Netherland, 
    518 U.S. 152
    (1996); see also 2 Randy Hertz & James S. Liebman, Federal Habeas
    Corpus Practice and Procedure, 1025 n.3 (4th ed. 2001) (collecting
    cases).
    14                                               No. 03-3984
    Wisconsin’s power to criminalize. But Teague is not strictly
    applicable to this case. Teague is concerned with the retro-
    activity of new constitutional rules of criminal procedure.
    Bousley v. United States, 
    523 U.S. 614
    , 620 (1998) (“Teague by
    its own terms applies only to procedural rules . . . .”).
    Confusion on this point is not surprising. See Schriro v.
    Summerlin, ___U.S. ___, 
    124 S.Ct. 2519
    , 2522 n.4 (2004)
    (“We have sometimes referred to rules of this latter type
    as falling under an exception to Teague’s bar on retroactive
    application of procedural rules; they are more accurately
    characterized as substantive rules not subject to the bar.”)
    (internal citation omitted); see also Beard v. Banks,
    ___U.S. ___, 
    124 S.Ct. 2504
    , 2510 n.3 (2004).
    Lawrence did not announce, and Muth does not seek
    to have this court find retroactive, a new procedural rule.
    Lawrence held that a state cannot enact laws that criminalize
    homosexual sodomy. Lawrence is a new substantive rule and
    is thus retroactive. Anderson v. Morrow, 
    371 F.3d 1027
    , 1033
    (9th Cir. 2004). Accordingly, an adult imprisoned for
    violating a state’s sodomy law (provided that person’s
    conduct took place with another consenting adult) would be
    eligible for a writ of habeas corpus. If it would be unconsti-
    tutional to punish a person for an act that cannot be subject
    to criminal penalties it is no less unconstitutional to keep a
    person in prison for committing the same act. See Mackey,
    
    401 U.S. at 693
     (Harlan, J., concurring in part and dissenting
    in part) (“There is little societal interest in permitting the
    criminal process to rest at a point where it ought properly
    never to repose.”).
    Muth, however, is not in prison for homosexual sodomy.
    The ultimate question then is not whether Lawrence is retro-
    active, but, rather, whether Muth is a beneficiary of the rule
    Lawrence announced. He is not. Lawrence did not address the
    constitutionality of incest statutes. Rather, the statute at
    No. 03-3984                                                15
    issue in Lawrence was one proscribing homosexual sodomy
    and the Court, as noted above, viewed its decision as a re-
    consideration of Bowers, another case involving homosexual
    sodomy. Lawrence, 
    539 U.S. at 564
     (“[W]e deem it necessary
    to reconsider the Court’s holding in Bowers.”). There is no
    mention of incest in the Court’s opinion.
    Lawrence also did not announce, as Muth claims it did,
    a fundamental right, protected by the Constitution, for
    adults to engage in all manner of consensual sexual conduct,
    specifically in this case, incest. The Court certainly had not
    announced such a right prior to Lawrence, see Carey v.
    Population Servs. Int’l, 
    431 U.S. 678
    , 688 n.5 & n.17 (1977)
    (“[T]he Court has not definitively answered the difficult
    question whether and to what extent the Constitution pro-
    hibits statutes regulating private consensual sexual behavior
    among adults, and we do not purport to answer that ques-
    tion now.”) (internal citation and punctuation omitted), and
    Lawrence, whatever its ramifications, does not, in and of
    itself, go so far.
    This is clear from the Court’s analysis in Lawrence. In
    Lawrence in holding the state sodomy statute unconstitu-
    tional, the Court did not apply the specific method it had
    previously created for determining whether a substantive
    due process claim implicated a fundamental right:
    First, we have regularly observed that the Due Process
    Clause specially protects those fundamental rights and
    liberties which are, objectively, “deeply rooted in this
    Nation’s history and tradition,” and “implicit in the
    concept of ordered liberty,” such that “neither liberty
    nor justice would exist if they were sacrificed.” Second,
    we have required in substantive-due-process cases a
    “careful description” of the asserted fundamental liber-
    ty interest.
    16                                                 No. 03-3984
    Washington v. Glucksberg, 
    521 U.S. 702
    , 720-21 (1997) (inter-
    nal citations omitted). This method, referred to by the Court
    as “established,” 
    id. at 720
    , is absent from Lawrence. See
    Lawrence, 
    539 U.S. at 586
     (Scalia, J., dissenting) (“[N]owhere
    does the Court’s opinion declare that homosexual sodomy
    is a ‘fundamental right’ under the Due Process Clause. . .”).
    This omission led the Eleventh Circuit to conclude that
    Lawrence did not announce a “fundamental right to private
    sexual intimacy”:
    [T]he Lawrence opinion contains virtually no inquiry
    into the question of whether the petitioners’ asserted
    right is one of “those fundamental rights and liberties
    which are, objectively, deeply rooted in this Nation’s
    history and tradition and implicit in the concept of
    ordered liberty, such that neither liberty nor justice
    would exist if they were sacrificed.” [T]he opinion [also]
    notably never provides the “ ‘careful description’ of the
    asserted fundamental liberty interest” that is to accom-
    pany fundamental-rights analysis.
    Lofton v. Sec’y of the Dep’t of Children & Family Servs., 
    358 F.3d 804
    , 816 (11th Cir. 2004), cert. denied, 
    125 S. Ct. 869
    (2005).
    The Supreme Court in Lawrence also did not apply strict
    scrutiny in reviewing the sodomy statute at issue. See
    Lawrence, 
    539 U.S. at 586
     (Scalia, J., dissenting) (stating that
    “[the majority does not] subject the Texas law to the stand-
    ard of review that would be appropriate (strict scrutiny)
    if homosexual sodomy were a ‘fundamental right’ ” and
    concluding that the majority “proceeded to apply an un-
    heard-of form of rational-basis review”); Lofton, 
    358 F.3d 817
    (“Most significant, however, is the fact that the Lawrence
    Court never applied strict scrutiny, the proper standard
    when fundamental rights are implicated, but instead inval-
    No. 03-3984                                                  17
    idated the Texas statute on rational-basis grounds, holding
    that it ‘furthers no legitimate state interest which can justify
    its intrusion into the personal and private life of the individ-
    ual.’ ”) (quoting Lawrence, 
    539 U.S. at 578
    ). Strict scrutiny is
    the standard applicable to challenges where a fundamental
    liberty interest is at issue. The Court’s refusal to apply that
    standard confirms that the Court was not creating a new
    fundamental right. See Lofton, 358 F.3d at 817.
    Given, therefore, the specific focus in Lawrence on homo-
    sexual sodomy, the absence from the Court’s opinion of its
    own “established method” for resolving a claim that a parti-
    cular practice implicates a fundamental liberty interest, and
    the absence of strict scrutiny review, we conclude that
    Lawrence did not announce a fundamental right of adults to
    engage in all forms of private consensual sexual conduct.
    It may well be that future litigants will insist that Lawrence
    has broader implications for challenges to other state laws
    criminalizing consensual sexual conduct. However, because
    this case is here on habeas review, the only question before
    this court is whether Lawrence announced a new rule
    proscribing laws prohibiting the conduct for which Muth
    was convicted. We have concluded that it does not. Apply-
    ing this standard to the case at hand, there was no clearly
    established federal law in 2001 that supports Allen Muth’s
    claim that he has a fundamental right to engage in incest
    free from government proscription.
    III.
    Allen Muth is not entitled to a writ of habeas corpus.
    There was no clearly established federal law in 2001 that
    would have made his conviction for incest unconstitutional.
    The decision of the district court is
    AFFIRMED.
    18                                                No. 03-3984
    EVANS, Circuit Judge, concurring in the judgment. I concur
    in the judgment, but not the opinion, of the court. Muth can
    only prevail (1) if he can rely on Lawrence v. Texas and (2) if
    Lawrence v. Texas can be read to decriminalize incest. He
    can’t satisfy either “if,” but even if he could slip past the
    first one, he could never get by the second.
    Lawrence v. Texas established an important principle:
    States cannot demean the existence of homosexuals or con-
    trol their destiny by making their private sexual conduct a
    crime. Certain varieties of sexual conduct clearly remain
    outside the reach of Lawrence, things like prostitution, public
    sex, nonconsensual sex, sex involving children, and cer-
    tainly incest, a condition universally subject to criminal
    prohibitions. To argue that Lawrence v. Texas renders laws
    prohibiting sex between a brother and a sister unconstitu-
    tional demeans the importance of its holding which deals a
    fatal blow to criminal laws aimed at punishing homosexu-
    als.
    As I read the majority opinion, I sense a certain degree of
    unease, even disdain, for the majority opinion in Lawrence.
    The citations to Justice Scalia’s dissent in Lawrence, I submit,
    are unnecessary. I also don’t care for the repetitive (seven
    mentions in Part B) paraphrasings of the Texas law (which
    prohibited “engaging in consensual sexual activity with a
    person of the same sex”) as a law prohibiting “homosexual
    sodomy.” I realize that term is used twice in the majority
    opinion in Lawrence, but I think its use is ill-advised and
    outdated as well. As I see it, the term “homosexual sodomy”
    is pejorative. It should be scrubbed from court decisions in
    the future. For these reasons, I join the judgment of the court
    without embracing certain aspects of the majority opinion.
    No. 03-3984                                            19
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—6-22-05