Lawrence Ruling’s Limits

Two courts use narrow interpretations to uphold sex laws

Two more courts have used narrow interpretations of Lawrence v. Texas to avoid invalidating sex-phobic state or local laws.

On February 11, a federal district court in Arizona rejected a constitutional challenge to the closing of a Phoenix gay sex club, and on February 15, the Court of Appeals of North Carolina reversed the dismissal of a charge of soliciting a “crime against nature” brought against a female prostitute who offered to perform oral sex on male plainclothes police officers.

The Phoenix case concerned Flex, which U.S. District Judge David G. Campbell called “a gay men’s social club,” and had sexual activity going on both in private rooms and in public areas. Flex operated on a “membership system,” through which patrons could join on a daily, six-month or annual basis. Daily memberships were the most popular.

The city shut down Flex after the City Council passed a statute prohibiting “the operation of a business for purposes of providing the opportunity to engage in or view live sex acts.” The owners filed a federal lawsuit, claiming that the closure violated rights of privacy and liberty protected by the federal constitution, and relying primarily on the Supreme Court’s 2003 decision in Lawrence v. Texas, which held that criminalizing private gay sex between consenting adults violated the 14th Amendment’s liberty guarantee. Flex’s owners contended that had standing to sue representing the privacy and liberty interests of their members.

Campbell was not buying any of this. First, he found that Flex was not the kind of genuine “membership organization” that could file suit on behalf of its members, since membership was based solely on presenting identification and paying a fee for purposes of sexual behavior, rather any broader political, artistic, or commercial purpose.

On the chance that the court of appeals might reject his conclusion about Flex’s standing to represent its members, Campbell proceeded to analyze the liberty and privacy claim. On this point, he applied a narrow understanding of privacy that pre-dates Lawrence, relying particularly on a 1973 Supreme Court decision that held that an Atlanta theater exhibiting obscene movies to consenting adults who paid admission was not a “private place,” and could be closed down on obscenity grounds. Pointing to the Supreme Court’s statement in Lawrence that the sexual acts found to be protected did not involve public activity, Campbell concluded that the city could make it a crime to operate a business for the purpose of facilitating “public sex.”

A Pittsburgh federal judge just weeks earlier took a broader view of Lawrence, in striking down a federal obscenity law, finding that the 2003 Supreme Court ruling raised constitutional issues about moralistic legislation and embraced a broad, protective view of consensual, adult sexuality where the unconsenting public was excluded. The Pittsburgh ruling suggests that the 1973 Atlanta theater decision is no longer a relevant precedent.

The city could have made the argument that closing the sex club was motivated by public health concerns, and that might have carried the day, but that was not the argument advanced in this case.

In the North Carolina case, the police arrested Teresa Pope and charged her with four counts of solicitation of a crime against nature and one count of prostitution. She pled guilty to the prostitution charge, but moved to dismiss the crime against nature charge, arguing that the statute is unconstitutional in light of Lawrence. Catawba County Superior Court Judge Robert P. Johnston, straightforwardly applying Lawrence, held that the statute was unconstitutional and dismissed those charges, but the state appealed.

The crime against nature statute was definitively interpreted in a 1965 North Carolina Supreme Court ruling to mean “sexual intercourse contrary to the order of nature. It includes acts with animals and acts between human per anum and per os,” or in English, using the anus or the mouth. Writing for the Court of Appeals, Judge Robert C. Hunter embraced a narrow view of the Lawrence decision, noting that the majority opinion stated that the protected sexual behavior “does not involve public conduct or prostitution.” Accordingly, he found that the State of North Carolina may properly criminalize the solicitation of a sexual act it deems a crime against nature.

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