Lawrence v. Texas almost certainly protects a right to consensual incest

Professor Matthew Franck, a contributor to NRO and the Bench Memos blog, and Southern Appeal have been going at it over Muth v. Frank, a recent 7th Circuit opinion by Judge Manion finding that Lawrence v. Texas - that abomination of an opinion by Justice Kennedy finding that the Bill of Rights ratified in 1791 guarantees a Constitutional right to engage in homosexual sodomy - does not similarly protect a "fundamental right" to engage in consentual incest.

The row between Prof. Franck and Southern Appeal is whether Muth v. Frank actually reached the merits of the Constitutional consensual incest issue. Prof. Frank says yes. Southern Appeal says no. Who is right? Prof. Frank. As I explained in an email to Prof. Franck, cc'd to Southern Appeal:

Professor Franck,

I read your latest entry in Bench Memos and I perused the link to Southern Appeal you provided. I write to tell you that you are right, and Feddie is quite wrong, about the procedural context of the case. Not to disparage your qualifications, as Feddie does, but I am in fact a lawyer and maybe that will help you get Feddie to fess up that he is wrong.

The question you two are arguing is whether the procedural status of the case – review on a habeas corpus petition – means that Judge Manion’s opinion did or did not reach the underlying constitutional merits of whether Lawrence v. Texas protects incest as well as homosexual sodomy. Feddie says no, that Judge Manion’s opinion did not reach the merits, based on this quote from Muth:

“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. Applying 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.”

(Emphasis added by Feddie) (and eliminated by html: ed.)

The implication Feddie draws from this quote is that the holding of Muth was limited to “whether Lawrence announced a new rule . . . .” Feddie then argues that since the court found Lawrence did not announce a new rule, Mr. Muth’s habeas petition was procedurally barred, since only new substantive rules get retroactive application. Thus, Feddie concludes, Muth did not address whether Mr. Muth’s habeas petition lacked substantive merit.

His argument conveniently ignores the second part of the question, “a new rule proscribing laws prohibiting the conduct for which Muth was convicted.” For Muth did quite clearly hold that Lawrence did announce a new rule and that the rule was retroactive and would therefore apply to habeas petitioners.

“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 unconstitutional 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, 91 S.Ct. 1160 (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 v. Frank, 412 F.3d 808, 817 (7th Cir. 2005) (emphasis added) (see, I know how to cite a case and everything).

The question that Muth therefore reached – sua sponte, I might add – is what exactly was the new rule that Lawrence announced? By the court’s clear reasoning in the above quote, if Lawrence protects incest as well as homosexual sodomy, Mr. Muth would have the benefit of the retroactive application of Lawrence just as much as if he were convicted of homosexual sodomy even in the context of a habeas petition. Thus, the court was called upon – and did – reach the substantive question of whether Lawrence protected consensual incest as well as homosexual sodomy. Because Judge Manion’s opinion found that Lawrence did not protect consensual incest, it obviously did not announce a new rule protecting such a non-existent right. So in the clinching phrase of the logical argument, Judge Manion states that Lawrence did not announce a new rule protecting consensual incest. But Muth clearly did adjudicate the substantive issue of whether Lawrence protects consensual incest, and that is the point you made.

Great article, and spot on, I add.


Update: Upon reading a bit more of Southern Appeal's two posts, there is one point I need to clarify. In the context of a habeas petition, the Muth court could have found that there was a fundamental right to consensual incest out of Lawrence, but then also found that the Wisconsin state courts were not "unreasonable" in their interpretation of federal precedent. As a reader email to Southern Appeal puts it:

"I think the best reading of Muth is that even if Lawrence is clearly established law that is retroactively applicable on habeas, the Wisconsin courts' resolution of Muth's claim was not an 'unreasonable' application of Lawrence. "

Yes, Muth could have so held, but it didn't. It went straight to the jugular and found that there was no such Constitutional right to consensual incest in Lawrence, and thus no need to even address whether Wisconsin state courts' application of relevant federal precedent was "unreasonable" since it was "correct." Professor Franck is still correct.