769 F.2d 289 (5th Cir. 1985), 82-1590, Baker v. Wade

Docket Nº:82-1590.
Citation:769 F.2d 289
Party Name:Donald F. BAKER, Plaintiff-Appellee, v. Henry WADE, District Attorney of Dallas County, Texas, Etc., et al., Defendants, Danny E. Hill, 47th District Attorney, Defendant-Appellant.
Case Date:August 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 289

769 F.2d 289 (5th Cir. 1985)

Donald F. BAKER, Plaintiff-Appellee,


Henry WADE, District Attorney of Dallas County, Texas, Etc.,

et al., Defendants,

Danny E. Hill, 47th District Attorney, Defendant-Appellant.

No. 82-1590.

United States Court of Appeals, Fifth Circuit

August 26, 1985

Rehearing En Banc Denied Oct. 23, 1985.

Page 290

William Charles Bundren, Roderic G. Steakley, Dallas, Tex., for Hill.

Donovan Campbell, Jr., Dallas, Tex., for amicus Doctors Against A.I.D.S.

James C. Barber, Dallas, Tex., for plaintiff-appellee.

Thomas J. Coleman, Jr., Houston, Tex., for amicus Texas Human Rights Foundation.

Abby R. Rubenfeld, Nan D. Hunter, New York City, for amicus Lambda Legal Defense & Education Fund, Inc.

Leonard Graff, San Francisco, Cal., for amicus National Gay Rights Advocates.

Robert R. Murdoch, Los Angeles, Cal., for amicus Medical Advisory Council of Aids Project/Los Angeles.

Mary F. Keller, Asst. Atty. Gen., Austin, Tex., for State of Tex.

Appeal from the United States District Court for the Northern District of Texas.

Page 291


REAVLEY, Circuit Judge:

Donald F. Baker, a homosexual, sought a declaration that Tex.Pen.Code Ann. Sec. 21.06 (Vernon 1974) is unconstitutional. Section 21.06 proscribes "engag[ing] in deviate sexual intercourse with another individual of the same sex." Id. 1 The district court held that section 21.06 violates the constitutional protections of privacy and equal protection. Baker v. Wade, 553 F.Supp. 1121 (N.D.Tex.1982). Danny E. Hill, the district attorney of Potter County and a member of the defendant class, sought to appeal the district court's judgment. A panel of this court held that Hill did not have the right to intervene and prosecute the appeal. Baker v. Wade, 743 F.2d 236 (5th Cir.1984). We granted rehearing en banc and now hold that Hill is a proper appellant and that section 21.06 is constitutional.

  1. Jurisdiction

    Both Baker and Hill argue that the other is not properly before this court. Hill argues that Baker lacks standing to challenge the statute. Baker maintains that Hill could not appeal the district court judgment. We reject both arguments.

    Baker has engaged in, and states that he will continue to engage in, homosexual activities proscribed by section 21.06. The defendant class representatives agreed that violations of section 21.06 have been prosecuted and that they will prosecute future violations where probable cause exists. When a criminal statute is challenged, a plaintiff may demonstrate standing without first exposing himself to arrest. It is enough that there exists a credible threat of prosecution. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).

    Coming to our jurisdiction to hear Hill's appeal, as of the date of the entry of the district court's judgment Hill was a member of the class, was enjoined by that judgment, and as district attorney was a proper official under Texas law to represent the state. See Texas Const. art. 5 Sec. 21; State v. Gary, 163 Tex. 565, 359 S.W.2d 456, 458 (1962); Shepperd v. Alaniz, 303 S.W.2d 846 (Tex.Civ.App.--San Antonio 1957, no writ). As the deadline for giving notice of appeal approached, Hill filed his own notice. Several days later the attorney general of Texas filed a timely notice. It then appeared that the issue of the constitutionality of the Texas statute would be placed before the appellate court. However, several months later the attorney general filed a motion in this court to withdraw his appeal. When Hill learned of this fact, he sought a mandamus in the Supreme Court of Texas to order the attorney general to pursue the appeal, to which the latter responded that Hill had an adequate remedy at law by means of the direct appeal of the federal case, and pointed out to the Texas court: "Petitioner Hill has already filed a timely notice of appeal in the Fifth Circuit of the very decision they seek to have appealed."

    Hill promptly filed a motion to intervene and to substitute himself as the class representative, first with the district court and subsequently with this court. A judge of this court granted Hill's motion. Under the peculiar facts of this case the order granting intervention was justified because Hill's position satisfied the requirements of

    Page 292

    both Fed.R.Civ.P. 23(d)(2) and 24(a)(2). His motion came as soon as he knew that his interests, affected by the judgment, i.e., the declaration of the unconstitutionality of the statute and the injunction against its enforcement, would be pursued. He would be seriously prejudiced were he not allowed to intervene, whereas allowing the appeal to proceed prejudiced no one. As a state official empowered by Texas law to enforce criminal laws, his interest and its impairment by the district court's judgment cannot be questioned. The adequacy of representation of intervenor's interests, and especially those of the class, is ordinarily an issue that would require hearing and determination by the district court. In this case where the district court has rejected binding Supreme Court authority, the circuit court is entitled to conclude as a matter of law that those interests were inadequately represented by those who failed to pursue the appeal and that the state officer seeking to intervene was a proper party to do so. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977); Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977); F.W. Woolworth Co. v. Miscellaneous Warehousemen's Union, Local 781, 629 F.2d 1204 (7th Cir.1980), cert. denied, 451 U.S. 937, 101 S.Ct. 2016, 68 L.Ed.2d 324 (1981).

  2. Constitutionality of Section 21.06

    The district court held that section 21.06 violated Baker's constitutional right to privacy and to equal protection of the law. Baker v. Wade, 553 F.Supp. 1121, 1141, 1143 (N.D.Tex.1982). Hill assails the district court's holding on the grounds that it fails to give effect to binding precedent and improperly expands constitutional principles. We agree.

    A. Right to privacy

    In Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), the Supreme Court summarily affirmed the judgment of a three-judge district court upholding the constitutionality of a Virginia sodomy statute similar to the Texas statute which is attacked in the present suit. We consider the decision of the Court in Doe to be binding upon us for the reasons stated by the District of Columbia Circuit in Dronenburg v. Zech, 741 F.2d 1388, 1391-92 (D.C.Cir.1984), and by Judge Kravitch in her dissent to the Eleventh Circuit opinion in Hardwick v. Bowers, 760 F.2d 1202, 1213-16 (11th Cir.1985). There can be no question but that the decision of the Supreme Court in Doe was on the merits of the case, not on the standing of the plaintiffs to bring the suit. We should follow that controlling authority until the Supreme Court itself has issued an unequivocal statement that Doe no longer controls. We refuse to speculate, on the basis of the writings cited to us by the appellee, about what the Court might do today on this issue.

    B. Equal Protection

    Because we have held that engaging in homosexual conduct is not a constitutionally protected liberty interest and because Baker has not cited any cases holding, and we refuse to hold, that homosexuals constitute a suspect or quasi-suspect classification, the standard of review is whether section 21.06 is rationally related to a legitimate state end. McDonald v. Board of Election Commissioners, 394 U.S. 802, 807-09, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). In view of the strong objection to homosexual conduct, which has prevailed in Western culture for the past seven centuries, we cannot say that section 21.06 is "totally unrelated to the pursuit of," id. at 809, 89 S.Ct. at 1408, 22 L.Ed.2d at 745, implementing morality, a permissible state goal, Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954); Dronenburg v. Zech, 741 F.2d 1388, 1398 (D.C.Cir.1984). Therefore, section 21.06 does not deprive Baker of equal protection of the laws. 2

    Page 293

    Because we hold that section 21.06 is constitutional, the injunction of the district court is vacated and the judgment is REVERSED.

    GOLDBERG, Circuit Judge, dissenting:

    I concur wholeheartedly with Judge Rubin's cogent dissent.

    Given that the majority sees fit to reach the merits, however, I would hold Texas's homosexual sodomy statute unconstitutional. As both the Eleventh Circuit and the district court below concluded, the Supreme Court's summary affirmance in Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g 403 F.Supp. 1199 (E.D.Va.1975) (three-judge court), does not control our consideration of a state provision addressing "private consensual sexual behavior among adults," Carey v. Population Services International, 431 U.S. 678, 688 n. 5, 694 n. 17, 97 S.Ct. 2010, 2018 n. 5, 2021 n. 17, 52 L.Ed.2d 675 (1977). See Hardwick v. Bowers, 760 F.2d 1202 (11th Cir.1985); Baker v. Wade, 553 F.Supp. 1121 (N.D.Tex.1982). If ever there was a constitutional right to privacy, Texas has violated it by blatantly intruding into the private sex lives of fully consenting adults. Because this legislative trespass lacks a compelling state interest, I would hold this statute invalid on its face.

    ALVIN B. RUBIN, Circuit Judge, with whom GOLDBERG, POLITZ, RANDALL, TATE, JOHNSON, and WILLIAMS, Circuit Judges, join, dissenting.

    Determined to uphold the constitutionality of a Texas statute...

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