Allen A. Muth v. Matthew J. Frank, Secretary

TERENCE T. 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 control their destiny by making their private sexual conduct a crime. Certain varieties of sexual conduct clearly remain outside the reach of Lavrrence, things like prostitution, public sex, nonconsensual sex, sex involving children, and certainly incest, a condition universally subject to criminal prohibitions. To argue that Lawrence v. Texas renders laws prohibiting sex between a brother and a sister unconstitutional demeans the importance of its holding which deals a fatal blow to criminal laws aimed at punishing homosexuals.

As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in Lam'ence. 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 I realize that term is used twice in the majority opinion in Lawrence, but I think its use is ill-advised and outdated as well.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.