In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3984
ALLEN A. MUTH,
Petitioner-Appellant,
v.
MATTHEW J. FRANK, Secretary,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01 C 398—Lynn Adelman, Judge.
____________
ARGUED NOVEMBER 12, 2004—DECIDED JUNE 22, 2005
____________
Before BAUER, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Allen Muth and his younger sister
Patricia married and had three children. After they aban-
doned the middle child, who was disabled, the State of
Wisconsin petitioned to terminate their parental rights
because of their incestuous parenthood. After the courts
approved the termination, both Allen and Patricia were
convicted of incest and sentenced to years in prison. In this
petition for a writ of habeas corpus, Allen Muth argues that
Wisconsin’s incest statute is unconstitutional insofar as it
2 No. 03-3984
seeks to criminalize a sexual relationship between two
consenting adults. The district court denied the petition. We
affirm.
I.
Allen Muth and his adult sister, Patricia, were arrested by
the State of Wisconsin in 1997 and charged with incest in
violation of Wisconsin law. The facts leading up to this
1
arrest are not pleasant. Among fourteen children in a dys-
functional family, Allen was one of the oldest and Patricia
one of the youngest. During their childhood they were in
and out of foster care, and they and several other siblings
were involved in a cycle of sexual abuse and incest. Al-
though they were separated for some length of time, at
about the time Patricia reached the age of majority she and
Allen became reunited and got married. During their mar-
riage they had three children (apparently she had one other
child prior to the marriage). The incestuous relationship
came to the State’s attention when their middle child,
Tiffany, was “removed from her parental home and placed
in foster care because [Patricia] and Allen had abandoned
her at the home of a baby-sitter.” Allen M., 571 N.W.2d at
873.
After a series of progressive separation procedures,
the State filed a petition to terminate Patricia and Allen’s
parental rights to Tiffany because of their incestuous parent-
hood of Tiffany. Neither Patricia nor Allen contested the
evidence of their incest, and consequently the trial court
found Patricia and Allen unfit. The evidence at that trial
1
The preliminary facts set out here are derived from State v.
Allen M., 571 N.W.2d 872, 873 (Wis. Ct. App. 1997) (hereinafter
Allen M.).
No. 03-3984 3
indicated that Tiffany was significantly underdeveloped
and that “she was a non-verbal, three and one-half year old
who behaved and physically appeared to be more like a
two-year-old child. She was not toilet trained or able to feed
herself and she displayed little or no emotion.” Id. at 874.
Other evidence indicated that the child was significantly
neglected and that Patricia and Allen had no relationship
with the child. The court concluded that Tiffany’s best
interests would be served by the termination of the parental
rights of her biological parents.
On appeal to the Wisconsin Court of Appeals, Patricia and
Allen challenged the constitutionality of Wis. Stat.
§ 48.415(7), which provides that incestuous parenthood is a
2
ground for termination of parental rights. The Muths
claimed that the termination of their parental rights based
on their incestuous parenthood of Tiffany denied them due
process of law and their rights to equal protection of the
law. The court denied those claims and affirmed the trial
court. Allen M., 571 N.W.2d 872.
Given the facts exposed in Allen M., the State of Wisconsin
arrested Allen and Patricia and charged them with incest, in
violation of Wisconsin’s criminal incest statute, which
provides that:
Whoever marries or has nonmarital sexual intercourse
with a person he or she knows is a blood relative and
such relative is in fact related in a degree within which
2
Wis. Stat. § 48.415 provides that: “Grounds for termination of
parental rights shall be one of the following: . . . (7) Incestuous
parenthood, which shall be established by proving that the
person whose parental rights are sought to be terminated is also
related, either by blood or adoption, to the child’s other parent in
a degree of kinship closer than 2nd cousin.”
4 No. 03-3984
the marriage of the parties is prohibited by the law of
this state is guilty of a Class F felony.
3
Wis. Stat. § 944.06.
Prior to trial, Allen moved to dismiss the criminal com-
plaint against him, on the basis that Wisconsin’s incest stat-
ute was unconstitutional insofar as it sought to criminalize
a sexual relationship between two consenting adults. The
trial court denied the motion and conducted a bench trial.
Both Allen and Patricia were convicted on November 11,
1997. Allen was sentenced to eight years in prison and
Patricia was sentenced to five years’ imprisonment.
The Wisconsin Court of Appeals affirmed Allen’s convic-
tion in January 2000. In its opinion, the court noted that the
issue before it was whether Wisconsin’s incest statute was
unconstitutional. Wisconsin v. Muth, 98-1137-CR, slip op. at 1
(Wis. Ct. App. Jan. 20, 2000) (hereinafter Muth I). The Court
of Appeals also noted that it agreed with the trial court’s
conclusion that Allen Muth (hereinafter Muth) had no
privacy right in having sexual relations with his sister but
3
Wisconsin thus criminalizes a sexual and/or marital relation-
ship as incest if the parties could not marry due to a close blood
relationship. Section 765.03(1) of the Wisconsin Statutes, in turn,
prohibits marriage between “persons who are nearer of kin than
2nd cousins. . . .” Wis. Stat. § 765.30(1). There is an exception to
this prohibition of marriage for “first cousins where the female
has attained the age of 55 years or where either party, at the time
of application for a marriage license, submits an affidavit signed
by a physician stating that either party is permanently sterile.” Id.
Read together, these statutes criminalize sexual intercourse
where the following blood relationships exist: parent/child; sib-
lings; grandparent/grandchild; uncle or aunt/niece or nephew;
and first cousins (with certain exceptions). At the time of Muth’s
conviction and sentencing, incest was a Class C Felony.
No. 03-3984 5
ultimately concluded that “we need not address [the trial
court’s conclusion] because we have already concluded in
[Allen M.] that the State may legitimately prohibit incestu-
ous relationships.” Id. at 2. The Wisconsin Supreme Court
denied Muth’s petition for discretionary review.
Having exhausted all state remedies, on April 20, 2001,
Muth filed this petition for a writ of habeas corpus with
the United States District Court for the Eastern District of
Wisconsin. He challenged the constitutionality of the statute
that criminalized incestuous relationships. Before the
completion of briefing by the parties, the United States
Supreme Court issued its decision in Lawrence v. Texas, 539
U.S. 558 (2003). In that case, the Supreme Court held that a
4
Texas statute prohibiting homosexual sodomy was uncon-
stitutional insofar as it applied to the private conduct of two
consenting adults. Id. at 578-79.
4
In his concurring opinion, our colleague suggests that the
term “homosexual sodomy” is used by this court in a pejorative
fashion. Use of the word sodomy or “homosexual sodomy” to
discuss the sexual conduct Lawrence addressed is not original to
this decision. The majority opinion in Lawrence used the term
“sodomy” no less than seventeen times and the phrase “homo-
sexual sodomy” twice. Justice O’Connor’s concurring opinion
described the Texas law (and similar laws) at issue in Lawrence as
a law relating to sodomy twenty-four times. We also note
that several federal cases and innumerable commentators post-
Lawrence have described the holding of that case, or the Texas law
at issue in the case, as relating to sodomy or, more precisely,
homosexual (or some equivalent such as “same-sex”) sodomy.
See, e.g., Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1236 (11th
Cir. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1335 (2005); D.L.S.
v. Utah, 374 F.3d 971, 975 (10th Cir. 2004); Anderson v. Morrow, 371
F.3d 1027, 1034 n.4 (9th Cir. 2004).
6 No. 03-3984
On October 3, 2003, the district court denied Muth’s peti-
tion. Muth v. Wisconsin, No. 01-C-0398 (E.D. Wis. Oct. 3,
2003) [hereinafter Muth II]. The court, applying the standard
of review provisions set forth in the Antiterrorism and
Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1)
(“AEDPA”), held that Lawrence was not “clearly estab-
lished” Supreme Court precedent at the time of the
Wisconsin Court of Appeals’ decision on direct appeal. As
such, the district court held that it could not grant habeas
relief even if the Court of Appeals’ decision was contrary to
Lawrence. Muth II, at 5. The district court subsequently
denied Muth a certificate of appealability. This court, how-
ever, granted a certificate to determine if Lawrence should
apply retroactively. This appeal followed.
II.
Because of the limited power of a federal court to issue a
writ of habeas corpus in a matter involving a state prisoner,
a central focus of this case is whether and to what extent this
court should even consider the Supreme Court’s decision in
Lawrence. AEDPA instructs a federal court reviewing a state
conviction on habeas review to determine whether the
decision of the last state court to adjudicate the merits of the
petitioner’s claim was reasonably correct as of the time the
decision was made. As discussed below, only in limited
circumstances are legal developments occurring after the
state court’s decision considered.
Lawrence was decided after Muth’s conviction and the
exhaustion of his state post-conviction remedies. Muth has
not identified, and we have not found, a federal court deci-
sion (and certainly not a Supreme Court decision) prior to
the Wisconsin Court of Appeals decision in Muth I that even
discussed whether criminal penalties for incest might be
No. 03-3984 7
unconstitutional. The closest decision having some bearing
and still valid in 2001 was the Supreme Court’s decision in
Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Law-
rence, 539 U.S. at 578. In that case, the Court held that a
Georgia law banning sodomy was not unconstitutional even
when applied to consenting adults. Although Bowers did not
deal with incest, it can be safely assumed that a court
unwilling to find a law banning sodomy unconstitutional
would be no more inclined to find a law prohibiting incest
unconstitutional.
Because Lawrence overruled Bowers, and because there is
no other related precedent, Muth understandably invokes
Lawrence as his only hope for success. The district court held,
however, that Lawrence could not be considered because it
was not clearly established in 2001 when the Wisconsin
Court of Appeals issued its decision in Muth I. At this point
we need first to review the district court’s decision that
Muth I was an adjudication on the merits and if so, whether
AEDPA standards of review applied to Muth’s claim
(Part A). Next, we consider the question raised sua sponte by
this court in its order granting Muth the certificate of
appealability: whether Lawrence is retroactively applicable
(Part B).
A. Whether Muth I was an adjudication on the merits.
Under AEDPA, a federal court may issue a writ of habeas
corpus in cases involving prisoners convicted by a state only
where the applicable state court proceedings:
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or
8 No. 03-3984
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). This case is concerned only with
subsection (d)(1).
“[A] state court decision is ‘contrary to’ federal law if
the state court either incorrectly laid out governing Supreme
Court precedent, or, having identified the correct rule of
law, decided a case differently than a materially factually
indistinguishable Supreme Court case.” Conner v. McBride,
375 F.3d 643, 649 (7th Cir. 2004), cert. denied, ___ U.S. ___,
125 S.Ct. 1399 (2005). “An ‘unreasonable application’ of
Supreme Court precedent occurs when ‘the state court
identifies the correct governing legal rule . . . but unreason-
ably applies it to the facts of the particular state prisoner’s
case’ or ‘if the state court either unreasonably extends a
legal principle from [the Court’s] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.’ ”
Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir. 2001) (quoting
Williams v. Taylor, 529 U.S. 362, 405 (2000)). “Clearly estab-
lished” Supreme Court precedent is “the holdings, as
opposed to the dicta, of the [Supreme] Court’s decisions as
of the time of the relevant state-court decision.” Lockyer v.
Andrade, 538 U.S. 63, 71 (2003).
The district court held that because Lawrence had not been
decided at the time the Wisconsin Court of Appeals denied
Muth’s appeal, it obviously could not be clearly established
Supreme Court precedent. Importantly, however, before
applying the “clearly established” standard of review, the
reviewing court must first determine whether the claim
“was adjudicated on the merits in State court proceedings.” 28
U.S.C. § 2254(d) (emphasis added). In other words, § 2254’s
No. 03-3984 9
standards apply only when a state court has decided the
merits of the issue raised by the petitioner. If the state court
did not reach the merits, § 2254 does not apply and this
court applies the general habeas standard set forth at 28
U.S.C. § 2243. Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir.
2000).
The question then is whether the Wisconsin Court of
Appeals reached the merits of Muth’s constitutional claim.
If it did, a writ will issue only if pre-Lawrence precedents of
the Supreme Court (leaving aside for the moment whether
Lawrence is retroactive and whether it even applies) clearly
established that criminalizing incestuous conduct between
two consenting adults was unconstitutional. As we indi-
cated above, Muth has no hope for a writ if Lawrence cannot
be considered. If, however, the Court of Appeals did not
reach the merits, AEDPA does not apply and this court may
consider Lawrence in determining whether to issue a writ.
Muth argues that the Wisconsin Court of Appeals did
not reach the merits of his constitutional claim. As noted
above, in Muth I the Court of Appeals stated that it agreed
with the decision of the trial court that Muth did not have a
privacy right to have sexual intercourse with his sister. It
also decided, however, that it did not have to reach the
conclusion reached by the trial court because it had already
decided that the state could prohibit incestuous relation-
ships in an earlier case—State v. Allen M. Muth I, slip op. at
2 (“Because we have already concluded that the State has a
compelling interest in prohibiting incest, we reject Muth’s
challenges to the constitutionality of the incest statute.”).
Muth argues that the Court of Appeals did not adjudicate
the merits of his claim because the court in Allen M. did not
consider the criminal statute at issue here. Instead, Allen M.
considered Wisconsin’s statute that permits the termination
of parental rights where the children are the product of an
10 No. 03-3984
incestuous relationship. Allen M., 571 N.W.2d at 876. Muth
thus argues that the Court of Appeals misread or mis-
applied its earlier decision in Allen M. According to Muth,
Allen M. dealt with a different statute and did not stand
for the proposition the court in Muth I suggested it did.
Because the Court of Appeals relied solely on Allen M. to
decide Muth I, and Allen M. did not resolve the claim under
Wis. Stat. § 944.06 at issue in Muth I, according to Muth,
Muth I was not an adjudication on the merits.
We disagree. Even assuming the Wisconsin Court of
Appeals misread or misapplied Allen M., the decision in
Muth I was an adjudication on the merits of Muth’s claim
that Wisconsin’s criminal prohibition of incest was un-
constitutional insofar as it applied to the private conduct
of two consenting adults. AEDPA’s requirement that a
petitioner’s claim be adjudicated on the merits by a state
court is not an entitlement to a well-articulated or even a
5
correct decision by a state court. In fact, several circuits
5
If a state court specifically identifies a claim it must identify
and review the correct claim. In Appel v. Horn, 250 F.3d 203, 210-11
(3d Cir. 2001), the Third Circuit found that the AEDPA standards
of review did not apply where “petitioner had properly pre-
sented in the state courts a claim of the constructive denial of
counsel but that the state courts had misconstrued the claim as
one of the ineffective assistance of counsel.” Chadwick v. Janecka,
312 F.3d 597, 605 (3d Cir. 2003) (describing Appel) (emphasis in
the original). It stands to reason that a petition is subject to
AEDPA’s standards of review only when a petitioner has had
his claim reviewed by a state court. If a court considers another
claim, it has not considered his claim. In this case, however, Muth
does not suggest that the Wisconsin Court of Appeals did not
correctly identify his claim. The Wisconsin Court correctly
identified Muth’s claim on the first page of its opinion: “The issue
(continued...)
No. 03-3984 11
have held that a state court need not offer any reasons and
summarily dispose of a petitioner’s claim and that summary
disposition would be an adjudication on the merits.
Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir.), cert. denied,
538 U.S. 1000 (2003); Wright v. Dep’t of Corr., 278 F.3d 1245,
1254-55 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003);
Sellan v. Kuhlman, 261 F.3d 303, 310-12 (2d Cir. 2001); Bell v.
Jarvis, 236 F.3d 149, 158-62 (4th Cir. 2000) (en banc); Harris
v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000); Aycox v. Lytle,
196 F.3d 1174, 1177-78 (10th Cir. 1999); James v. Bowersox,
187 F.3d 866, 869 (8th Cir. 1999); Delgado v. Lewis, 181 F.3d
1087, 1091-92 n.3 (9th Cir. 1999), vacated on other grounds by,
528 U.S. 1133 (2000); see also Weeks v. Angelone, 528 U.S. 225,
6
237 (2000).
An adjudication on the merits is perhaps best understood
by stating what it is not: it is not the resolution of a claim on
procedural grounds. See Sellan, 261 F.3d at 311 (“ ‘Adjudi-
cated on the merits’ has a well settled meaning: a decision
finally resolving the parties’ claims, with res judicata effect,
that is based on the substance of the claim advanced, rather
than on a procedural, or other, ground.”); Neal v. Puckett,
286 F.3d 230, 235 (5th Cir. 2002) (“adjudication ‘on the
merits’ is a term of art that refers to whether a court’s
disposition of the case was substantive as opposed to
5
(...continued)
on appeal is whether Wisconsin’s incest statute, Wis. Stat.
§ 944.06 (1997-98) is constitutional.” Muth I, slip op. at 1.
6
In Weeks, the Supreme Court considered, under the deference
rules set forth in AEDPA, a claim rejected without explanation by
the Virginia Supreme Court. Weeks, 528 U.S. at 237. Thus, the
Supreme Court implicitly treated a summary disposition by a
state court as an adjudication on the merits.
12 No. 03-3984
procedural”), cert. denied, 537 U.S. 1104 (2003). It is only after
a federal court has determined that a state court has adjudi-
cated a claim on the merits that the correctness of the state
7
court’s decision is considered. Only then can a federal court
consider a court’s reasoning (assuming it has provided one,
see above). The district court in this case put it quite suc-
cinctly:
Nevertheless, the fact that the court of appeals may
have misread or misapplied its own precedent does not
mean that it did not adjudicate the merits of Muth’s
constitutional challenge as required by § 2254(d). As
noted, the court of appeals framed the issue as whether
the incest statute was constitutional and went on to hold
that it was. The court’s poor reasoning may provide a
basis for finding that its decision was “contrary to” or
involved an “unreasonable application” of clearly es-
tablished federal law, but it is not grounds for finding
that the court failed to adjudicate the claim on the
merits.
Muth II, slip op. at 7.
Viewed thus, it is clear the Wisconsin Court of Appeals
adjudicated Muth’s appeal on the merits. Because it did, our
review is limited to determining whether the decision
reached by Muth I was contrary to “clearly established
Federal law” at the time that Muth I was decided. Unless
Lawrence is retroactive, that is unless it applies to cases that
became final prior to June 26, 2003 (the date Lawrence was
7
Under AEDPA, a state court decision need not even be correct
in the view of the reviewing federal court. The decision need only
not be “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
No. 03-3984 13
decided), it should not even be considered in resolving
Muth’s claim. We thus turn next to the retroactivity ques-
tion.
B. Whether Lawrence should be retroactively applied to
Muth.
As noted above, this court, in its order granting Muth a
certificate of appealability, raised sua sponte the following
issue: whether the Lawrence decision should be retroactively
applied to Muth. In considering this issue, the parties
focused primarily on the Supreme Court’s decision in
Teague v. Lane, 489 U.S. 288 (1989). In Teague, a plurality of
justices held that a petitioner for a writ of habeas corpus
would not have the benefit of new constitutional rules of
criminal procedure announced by the Supreme Court after
the petitioner’s conviction had become final. Teague, 489 U.S
8
at 310 (O’Connor, J., plurality opinion). There are two
“exceptions” to this doctrine of non-retroactivity: 1) the rule
“places a class of private conduct beyond the power of the
State to proscribe,” id. at 311 (quoting Mackey v. United
States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part
and dissenting in part)), or; 2) the rule is a “watershed rule”
that implicates the fundamental fairness and accuracy of the
criminal proceeding, id.
Muth argues that the first exception applies here, that
is, Lawrence announced a new rule that placed his private
conduct (an act of incest with a consenting adult) beyond
8
A majority of the Court’s justices have since ratified the plur-
ality decision in Teague. See, e.g., Gray v. Netherland, 518 U.S. 152
(1996); see also 2 Randy Hertz & James S. Liebman, Federal Habeas
Corpus Practice and Procedure, 1025 n.3 (4th ed. 2001) (collecting
cases).
14 No. 03-3984
Wisconsin’s power to criminalize. But Teague is not strictly
applicable to this case. Teague is concerned with the retro-
activity of new constitutional rules of criminal procedure.
Bousley v. United States, 523 U.S. 614, 620 (1998) (“Teague by
its own terms applies only to procedural rules . . . .”).
Confusion on this point is not surprising. See Schriro v.
Summerlin, ___U.S. ___, 124 S.Ct. 2519, 2522 n.4 (2004)
(“We have sometimes referred to rules of this latter type
as falling under an exception to Teague’s bar on retroactive
application of procedural rules; they are more accurately
characterized as substantive rules not subject to the bar.”)
(internal citation omitted); see also Beard v. Banks,
___U.S. ___, 124 S.Ct. 2504, 2510 n.3 (2004).
Lawrence did not announce, and Muth does not seek
to have this court find retroactive, a new procedural rule.
Lawrence held that a state cannot enact laws that criminalize
homosexual sodomy. 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 unconsti-
tutional 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 (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, however, is not in prison for homosexual sodomy.
The ultimate question then is not whether Lawrence is retro-
active, but, rather, whether Muth is a beneficiary of the rule
Lawrence announced. He is not. Lawrence did not address the
constitutionality of incest statutes. Rather, the statute at
No. 03-3984 15
issue in Lawrence was one proscribing homosexual sodomy
and the Court, as noted above, viewed its decision as a re-
consideration of Bowers, another case involving homosexual
sodomy. Lawrence, 539 U.S. at 564 (“[W]e deem it necessary
to reconsider the Court’s holding in Bowers.”). There is no
mention of incest in the Court’s opinion.
Lawrence also did not announce, as Muth claims it did,
a fundamental right, protected by the Constitution, for
adults to engage in all manner of consensual sexual conduct,
specifically in this case, incest. The Court certainly had not
announced such a right prior to Lawrence, see Carey v.
Population Servs. Int’l, 431 U.S. 678, 688 n.5 & n.17 (1977)
(“[T]he Court has not definitively answered the difficult
question whether and to what extent the Constitution pro-
hibits statutes regulating private consensual sexual behavior
among adults, and we do not purport to answer that ques-
tion now.”) (internal citation and punctuation omitted), and
Lawrence, whatever its ramifications, does not, in and of
itself, go so far.
This is clear from the Court’s analysis in Lawrence. In
Lawrence in holding the state sodomy statute unconstitu-
tional, the Court did not apply the specific method it had
previously created for determining whether a substantive
due process claim implicated a fundamental right:
First, we have regularly observed that the Due Process
Clause specially protects those fundamental rights and
liberties which are, objectively, “deeply rooted in this
Nation’s history and tradition,” and “implicit in the
concept of ordered liberty,” such that “neither liberty
nor justice would exist if they were sacrificed.” Second,
we have required in substantive-due-process cases a
“careful description” of the asserted fundamental liber-
ty interest.
16 No. 03-3984
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (inter-
nal citations omitted). This method, referred to by the Court
as “established,” id. at 720, is absent from Lawrence. See
Lawrence, 539 U.S. at 586 (Scalia, J., dissenting) (“[N]owhere
does the Court’s opinion declare that homosexual sodomy
is a ‘fundamental right’ under the Due Process Clause. . .”).
This omission led the Eleventh Circuit to conclude that
Lawrence did not announce a “fundamental right to private
sexual intimacy”:
[T]he Lawrence opinion contains virtually no inquiry
into the question of whether the petitioners’ asserted
right is one of “those fundamental rights and liberties
which are, objectively, deeply rooted in this Nation’s
history and tradition and implicit in the concept of
ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed.” [T]he opinion [also]
notably never provides the “ ‘careful description’ of the
asserted fundamental liberty interest” that is to accom-
pany fundamental-rights analysis.
Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358
F.3d 804, 816 (11th Cir. 2004), cert. denied, 125 S. Ct. 869
(2005).
The Supreme Court in Lawrence also did not apply strict
scrutiny in reviewing the sodomy statute at issue. See
Lawrence, 539 U.S. at 586 (Scalia, J., dissenting) (stating that
“[the majority does not] subject the Texas law to the stand-
ard of review that would be appropriate (strict scrutiny)
if homosexual sodomy were a ‘fundamental right’ ” and
concluding that the majority “proceeded to apply an un-
heard-of form of rational-basis review”); Lofton, 358 F.3d 817
(“Most significant, however, is the fact that the Lawrence
Court never applied strict scrutiny, the proper standard
when fundamental rights are implicated, but instead inval-
No. 03-3984 17
idated the Texas statute on rational-basis grounds, holding
that it ‘furthers no legitimate state interest which can justify
its intrusion into the personal and private life of the individ-
ual.’ ”) (quoting Lawrence, 539 U.S. at 578). Strict scrutiny is
the standard applicable to challenges where a fundamental
liberty interest is at issue. The Court’s refusal to apply that
standard confirms that the Court was not creating a new
fundamental right. See Lofton, 358 F.3d at 817.
Given, therefore, the specific focus in Lawrence on homo-
sexual sodomy, the absence from the Court’s opinion of its
own “established method” for resolving a claim that a parti-
cular practice implicates a fundamental liberty interest, and
the absence of strict scrutiny review, we conclude that
Lawrence did not announce a fundamental right of adults to
engage in all forms of private consensual sexual conduct.
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. Apply-
ing 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.
III.
Allen Muth is not entitled to a writ of habeas corpus.
There was no clearly established federal law in 2001 that
would have made his conviction for incest unconstitutional.
The decision of the district court is
AFFIRMED.
18 No. 03-3984
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 con-
trol their destiny by making their private sexual conduct a
crime. Certain varieties of sexual conduct clearly remain
outside the reach of Lawrence, things like prostitution, public
sex, nonconsensual sex, sex involving children, and cer-
tainly incest, a condition universally subject to criminal
prohibitions. To argue that Lawrence v. Texas renders laws
prohibiting sex between a brother and a sister unconstitu-
tional demeans the importance of its holding which deals a
fatal blow to criminal laws aimed at punishing homosexu-
als.
As I read the majority opinion, I sense a certain degree of
unease, even disdain, for the majority opinion in Lawrence.
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.
No. 03-3984 19
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-22-05