Dawson v. Vance

Decision Date29 July 1971
Docket NumberCiv. A. No. 70-H-299.
Citation329 F. Supp. 1320
PartiesJames Clarence DAWSON et al. v. Carol S. VANCE et al.
CourtU.S. District Court — Southern District of Texas

Ben G. Levy, Houston, Tex., for petitioners.

Joe S. Moss and James Brough, Asst. Dist. Attys., Houston, Tex., for defendant Carol S. Vance.

Willard E. Dollahon, Asst. City Atty., Houston, Tex., for defendant Herman B. Short.

MEMORANDUM AND ORDER:

HANNAY, District Judge.

The Three Judge District Court, Title 28, U.S.C.A., Sections 2281 et seq.; Jackson v. Choate, 5 Cir., 404 F.2d 910, 913, convened in this case on April 3, 1970, has by its order entered July 26, 1971, been dissolved in light of the United States Supreme Court decision of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (February 23, 1971) and related cases. By this order of Dissolution instant case is returned to this Court, wherein it originated, for appropriate action.

It is the considered opinion of this Court that the mentioned case of Younger v. Harris, supra, and its related cases, to-wit, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; Byrne v. Karalexis, 401 U. S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792, all of which were decided by the United States Supreme Court on February 23, 1971, warrant and require dismissal of this suit. See also: Wade v. Buchanan, No. 289, and Buchanan v. Wade, No. 290, 401 U.S. 989, 91 S.Ct. 1221, 1222, 28 L.Ed.2d 526 (March 29, 1971).1

In addition to the foregoing, I submit without alteration the following opinion prepared by me more than a year ago—which opinion would have been the basis for dismissal had this case been deemed then, as it is now, appropriate for disposition by a one judge federal equity court:

The Petitioners seek the extraordinary relief of a federal writ of injunction on constitutional grounds, Title 28, U.S.C.A., Sections 2281, 2284, and this Court's declaratory judgment, Title 28, U.S.C.A., Section 2201 et seq., against any prospective enforcement of a state criminal statute written under the authority of the Legislature and State of Texas. Title 28, U.S.C.A., Section 1343(3); Title 42, U.S.C.A., Section 1983.

I.

The state statute in question, Article 524, Texas Penal Code, forbids and condemns the practice of sodomy. Sodomy is an act upon or concerning the physical being of a person. It is an act of immemorial anathema both at common law, wherein it was punishable by death, 81 C.J.S.Sodomy § 1, p. 370, and in ancient times. Genesis 19: 1-29. It is clearly an offense involving moral turpitude whether defined by common law or by statute. The practice is inherently inimical to the general integrity of the human person. This is a postulate not of dogma but of common knowledge. It warrants the dignity of judicial knowledge. The primary authority and responsibility of the several states to forbid and control otherwise natural libidinal vice could scarcely be questioned. Their primary power over aberrational libidinal vice is no less sure. Sodomy is, therefore, in the general sense a crime the control of which is clearly within the reserved and police powers of the several states. Articles IX and X, United States Constitution; Douglas v. City of Jeannette, 319 U.S. 157, 162-165, 63 S.Ct. 877, 87 L.Ed. 1324. Forthwith, therefore, this case is in the general sense distinguishable from those involving per se or rationally related congregational or expressional rights and state statutes deemed inhibitory of the exercise of the freedom of speech and assembly guarantees of the First Amendment of the federal Constitution as applicable to the states through the Fourteenth Amendment thereof. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); compare: Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968).

Further material distinctions, both procedural and substantive, which this case presents in contrast to recent case authorities in the area of First Amendment constitutional adjudication will be adverted to later herein.

II.

1. The Petitioner Dawson heretofore sought in this cause an injunction against the District Attorney of Harris County, Texas restraining the pending prosecution against him of several felony charges of sodomy upon minors. This relief was denied the said Petitioner Dawson under the federal Anti-Injunction Statute, Title 28, U.S.C.A., Section 2283, which provides:

"A Court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

The Petitioner Dawson additionally contends that Article 524 fails to distinguish between private and public acts of sodomy and fails to exclude from its proscription consensual acts of sodomy between adults committed in private. Petitioner claims that this inscriptive deficiency in the statute works a violation of his federal constitutional right to privacy and his First Amendment-Fourteenth Amendment rights.

2. The intervening Petitioners, Donald W. Snell and Jan Hinton Snell, an alleged married couple, urge their suit as a class action in behalf of all such married persons similarly situated. A substantial preliminary question exists whether the intervening Petitioners, Donald W. Snell and Jan Hilton Snell, can maintain their suit in its present posture as a class action under Rule 23, Federal Rules of Civil Procedure, as amended in 1966. Charles Allen Wright, Law of Federal Courts, Second Edition (1970), Section 72, Class Actions, pages 306-317. In their Petition, the said intervening Petitioners purport to admit to acts of sodomy committed within their alleged marital union. These allegations in the form of admissions are conclusionary in nature. These intervening Petitioners, on the basis of their alleged libidinal conduct, could fairly represent without conflict only members of a class, married or otherwise, who commit heteroerotical sodomy. Rule 23(a) (4), Federal Rules of Civil Procedure; Anderson v. Moorer, 5 Cir., 372 F.2d 747, 751, f. n. 5; Wright, Law of Federal Courts, 2nd Ed., at 308-309. The Intervenors' Petition and the stipulation reveal, however, that a right of privacy as promulgated in a recent United States Supreme Court decision is asserted as applicable to this case; and this constitutional right of privacy, in an appropriate case, arguably extends to the marital union in general. Thus, in strict terms of the constitutional right of privacy and the limits thereof, there are common questions of law and fact, Rule 23(a) (2) (b) (3), as amended in 1966, as concerns the marital union as a class. Moreover, Rule 24(b), Federal Rules of Civil Procedure, governing Permissive Intervention, permits intervention where the applicants' "* * * claim or defense and the main action have a question of law or fact in common * * *". While the primary offenses in instant case were allegedly committed against minors, the indictments in instant case were for oral and anal sodomy. Under the statute no distinction is drawn in this form of sodomy between adults and minors. Thus common questions of law and fact readily arise from any application of the plain reading of this portion of the statute irrespective of the age of the victims or the participants. The prosecution in instant case was maintained against an adult only. On the basis of the alleged facts it was maintainable under the statute on the strength of the alleged act rather than the age of the other participants. The exemption from the statute sought by the Intervenors arises not from any consideration of personal age but from the legal relationship created by their alleged marriage.

The import of the complaint by the intervenors Donald W. Snell and Jan Hinton Snell is that Article 524 inadequately defines the offense of sodomy and would impermissibly permit a prosecutorial intrusion upon the privacy of the marital union. The record before this Court does not reveal an instance in which a criminal prosecution has been maintained under Article 524 against a married couple or a member thereof for sexual acts committed within their marital union. There is no such factual contention here. The Court accepts as established fact that there has never been.

3. As heretofore indicated, the adversary parties here have stipulated to the material facts in this case. The stipulation is of record. The material facts will be adverted to in this opinion as they are deemed necessary to the disposition of this case.

III.

In point of substantive law the Petitioners rely heavily upon the recent United States Supreme Court case of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In point of substantive law, Griswold struck down convictions under a state criminal statute that forbade the use of contraceptives and under the accessory statute of that state pursuant to which two officials, one a physician, were convicted for counseling the use of contraceptives within the marital union. Griswold announced the doctrine that "* * * the First Amendment has a penumbra where privacy is protected from governmental intrusion." 381 U.S., at 483, 85 S.Ct., at 1681. And it is not disputed here that this right of privacy was applied to the marital union in the particular facts presented by Griswold.

But it is to be remembered that this is a Court of equity. Any affirmative relief that issues from this Court is in law extraordinary in nature. Griswold, viewed procedurally, reflects the deficiency, indeed the fallacy, of Petitioners' contention at this time. Griswold was decided by the United States Supreme Court under its appellate...

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    ...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......
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