RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0307p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

PAUL D. LOWE,

 Petitioner-Appellant,

v.

STARK COUNTY SHERIFF, Timothy A.

Swanson,

Respondent-Appellee.

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No. 09-3942

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 08-00686—Donald C. Nugent, District Judge.

Argued: October 4, 2011

Decided and Filed: December 8, 2011 

Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: J. Dean Carro, UNIVERSITY OF AKRON SCHOOL OF LAW, Akron,

Ohio, for Appellant. Ross A. Rhodes, STARK COUNTY PROSECUTOR’S OFFICE,

Canton, Ohio, for Appellee. ON BRIEF: J. Dean Carro, UNIVERSITY OF AKRON

SCHOOL OF LAW, Akron, Ohio, for Appellant. Ross A. Rhodes, STARK COUNTY

PROSECUTOR’S OFFICE, Canton, Ohio, for Appellee.

_________________

OPINION

_________________

GRIFFIN, Circuit Judge. Petitioner Paul Lowe appeals the district court’s denial

of his petition for a writ of habeas corpus, arguing that the Ohio Supreme Court

unreasonably applied federal law as clearly established by the Supreme Court in

1
No. 09-3942 Lowe v. Stark County Sheriff Page 2

1

In general, the age of sexual consent in Ohio is sixteen, Ohio Rev. Code § 2907.04(A), while

the age of majority is eighteen. Ohio Rev. Code § 3109.01.

Lawrence v. Texas, 539 U.S. 558 (2003), when it upheld his incest conviction for

engaging in sexual conduct with his stepdaughter. We disagree and therefore affirm.

I.

Lowe was charged with one count of sexual battery for engaging in sexual

conduct by means of sexual intercourse with his 22-year-old stepdaughter, in violation

of Ohio Rev. Code § 2907.03(A)(5), which makes it a crime to “engage in sexual

conduct with another, not the spouse of the offender, when . . . [t]he offender is the other

person’s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in

loco parentis of the other person.” Lowe moved to dismiss the charge in the trial court,

arguing that the facts alleged in the indictment did not constitute an offense under Ohio

Rev. Code § 2907.03(A)(5) because there was a “clear legislative intent to have the law

apply to children, not adults”;1 Lowe also argued that the statute was unconstitutional

as applied to him because the government had no legitimate interest in regulating sexual

activity between consenting adults. See State v. Lowe, 861 N.E.2d 512, 514 (Ohio

2007). The court disagreed and overruled his motion. Thereafter, Lowe pled no contest

to the charge and was sentenced to 120 days of incarceration and three years of

community control and was classified as a sex offender. Id.

The Ohio Court of Appeals upheld Lowe’s conviction on direct review. It

concluded that Ohio Rev. Code § 2907.03(A)(5) prohibits sexual conduct between a

stepparent and stepchild regardless of the stepchild’s age and found that Lowe “d[id] not

have a constitutionally protected right to engage in sex with his stepdaughter.” State v.

Lowe, No. 2004CA00292, 2005 WL 1983964, at *2 (Ohio Ct. App. Aug. 15, 2005)

(unpublished). On discretionary review, the Ohio Supreme Court also affirmed. Lowe,

861 N.E.2d at 518. It determined that “Lawrence did not announce a ‘fundamental’ right

to all consensual adult sexual activity, let alone consensual sex with one’s adult children

or stepchildren” and that “the statute in Lawrence was subjected to a rational-basis rather

than a strict-scrutiny test . . . .” Id. at 517. Accordingly, the court held that Lowe’s
No. 09-3942 Lowe v. Stark County Sheriff Page 3

conviction was constitutional because “as applied in this case, R.C. 2907.03(A)(5) bears

a rational relationship to the legitimate state interest in protecting the family . . . from the

destructive influence of sexual relationships between parents or stepparents and their

children or stepchildren.” Id. at 518.

Lowe then filed a 28 U.S.C. § 2254 petition for habeas relief with the federal

district court, arguing that the Ohio Supreme Court unreasonably applied federal law as

clearly established by the Supreme Court in Lawrence. The magistrate judge issued a

report and recommendation to deny Lowe’s petition, concluding that the Ohio Supreme

Court’s decision was not unreasonable because, as evidenced by a split among the

federal circuits, Lawrence was not clear as to the nature of the right it considered or the

standard of review it applied to the Texas statute. See Lowe v. Swanson, 639 F. Supp.

2d 857, 859 (N.D. Ohio 2009). The district court adopted the magistrate judge’s report

and recommendation and denied the petition. Id. at 860. We subsequently granted

Lowe’s request for a certificate of appealability, explaining that “the conflicting

authority by our sister circuits establishes that the issues presented by this habeas

petition are substantial and warrant further review.”

II.

We review the district court’s habeas decision de novo. Souter v. Jones, 395

F.3d 577, 584 (6th Cir. 2005). The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) limits federal habeas review of state court proceedings and provides

that an application for a writ of habeas corpus shall not be granted with respect to any

claim that was adjudicated on the merits in state court proceedings unless adjudication

of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding. 
No. 09-3942 Lowe v. Stark County Sheriff Page 4

28 U.S.C. § 2254(d)(1)-(2); Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008).

A state court adjudication is “contrary to” Supreme Court precedent under

§ 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law[,]” or “if the state court confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives at [an

opposite result].” Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the

“unreasonable application” clause of § 2254(d)(1), habeas relief is available if “the state

court identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s case[,]”

or if a “state court decision either unreasonably extends or unreasonably refuses to

extend a legal principle from the Supreme Court precedent to a new context.” Harris,

526 F.3d at 909 (citations and internal quotation marks omitted). “In order for a federal

court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the

state court’s decision must have been more than incorrect or erroneous,” but rather “must

have been ‘objectively unreasonable.’” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)

(citations omitted); see also Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).

III.

Lowe argues that he is entitled to habeas relief because the Ohio Supreme Court

“unreasonably applied the federal law announced in Lawrence.” According to Lowe,

the Ohio Supreme Court “made the same mistake as the Bowers Court by framing the

issue as ‘whether [Mr.] Lowe is guaranteed a fundamental right to engage in sexual

intercourse with his consenting adult stepdaughter,” rather than framing the issue more

broadly as “the recognition of the right, as between consenting adults, to engage in

private sexual conduct.” See Lowe, 861 N.E.2d at 516; see also Lawrence, 539 U.S. at

578 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)

(opining that “individual decisions by married [or unmarried] persons, concerning the

intimacies of their physical relationship . . . are a form of ‘liberty’ protected by the Due

Process Clause of the Fourteenth Amendment . . .”)) (footnotes and citations omitted).

Lowe also contends that this broad right is a fundamental one requiring strict scrutiny
No. 09-3942 Lowe v. Stark County Sheriff Page 5

because of the Lawrence Court’s citations to fundamental rights cases and its references

to “the right to make certain decisions regarding sexual conduct,” a person’s interest in

making “certain fundamental decisions affecting her destiny,” and the “emerging

awareness that liberty gives substantial protection to adult persons in deciding how to

conduct their private lives in matters pertaining to sex.” See Lawrence, 539 U.S. at 565,

572.

Lowe’s arguments have some support. In Cook v. Gates, 528 F.3d 42 (1st Cir.

2008), the First Circuit, considering a challenge by members of the United States Armed

Forces who claimed that the “Don’t Ask, Don’t Tell” statute, 10 U.S.C. § 654 (2007),

violated their substantive due process rights, found that Lawrence announced a broad

Fourteenth Amendment right to sexual privacy. The court noted that “[t]he Lawrence

Court characterized the constitutional question as ‘whether petitioners’ criminal

convictions for adult consensual sexual intimacy in the home violate their vital interests

in liberty and privacy protected by the Due Process Clause”; and it further explained that

“[t]aking into account the precedent relied on by Lawrence, the tenor of its language, its

special reliance on Justice Stevens’ Bowers dissent, and its rejection of morality as an

adequate basis for the law in question, we are convinced that Lawrence recognized that

adults maintain a protected liberty interest to engage in certain ‘consensual sexual

intimacy in the home.’” Id. at 49, 53. The Fifth Circuit came to a similar conclusion in

Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008), asserting that “[t]he

right the Court recognized [in Lawrence] was not simply a right to engage in the sexual

act itself, but instead a right to be free from governmental intrusion regarding ‘the most

private human contact, sexual behavior.’” Id. at 744.

Also, were Lawrence applicable, there is authority for Lowe’s position that a

heightened standard, greater than a rational basis, may govern. Again, Lowe relies on

Cook, where the First Circuit held that Lawrence “applies a standard of review that lies

between strict scrutiny and rational basis” because it “balanced the strength of the state’s

asserted interest in prohibiting immoral conduct against the degree of intrusion into the

petitioners’ private sexual life caused by the statute in order to determine whether the
No. 09-3942 Lowe v. Stark County Sheriff Page 6

law was unconstitutionally applied.” Cook, 528 F.3d at 56. In Witt v. Dep’t of the Air

Force, 527 F.3d 806 (9th Cir. 2008), the Ninth Circuit also considered the “Don’t Ask,

Don’t Tell” policy post-Lawrence and concluded that the Lawrence Court must have

applied something more stringent than rational basis review. It noted that the Supreme

Court rejected Bowers not because the Bowers Court wrongly held that the statute at

issue satisfied rational basis review, but because of “‘the Court’s own failure to

appreciate the extent of the liberty at stake,’” id. at 813 (quoting Lawrence, 539 U.S. at

567); that “the cases on which the Supreme Court explicitly based its decision in

Lawrence are based on heightened scrutiny”; and that “[w]ere the Court applying

rational basis review, it would not [have] identif[ied] a legitimate state interest to

‘justify’ the particular intrusion of liberty at issue[,]” id. at 817.

Other circuit courts, however, have concluded just the opposite. In Seegmiller

v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008), the Tenth Circuit considered a

plaintiff’s claim that her employer, LaVerkin City, Utah, and its agents, “violated her

fundamental liberty interest to ‘engage in a private act of consensual sex.’” Id. at 770

(citation omitted). The court noted that “[b]roadly speaking, no one disputes a right to

be free from government interference in matters of consensual sexual privacy. But as the

case law teaches us, a plaintiff asserting a substantive due process right must both

(1) carefully describe the right and its scope; and (2) show how the right as described fits

within the Constitution’s notions of ordered liberty.” Id. at 769 (citing Washington v.

Glucksberg, 521 U.S. 702, 721 (1997)). Applying that standard, the court concluded that

Lawrence did not announce a fundamental right, noting that “nowhere in Lawrence does

the Court describe the right at issue in that case as a fundamental right or a fundamental

liberty interest. It instead applied rational basis review to the law and found it lacking.”

Id. at 771 (citing Lawrence, 539 U.S. at 578 (stating that the Texas statute in question

“furthers no legitimate state interest which can justify its intrusion into the personal and

private life of the individual”) and id. at 594 (Scalia, J., dissenting) (asserting that the

majority applied the “rational-basis test” to overturn the statute)).
No. 09-3942 Lowe v. Stark County Sheriff Page 7

The Court of Appeals for the Eleventh Circuit has similarly construed Lawrence.

In Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004),

cert. denied, 543 U.S. 1081 (2005), it held that “it is a strained and ultimately incorrect

reading of Lawrence to interpret it to announce a new fundamental right” when the

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 . . .”; “never provides the careful description of the asserted

fundamental liberty interest that is to accompany fundamental-rights analysis”; and

“[m]ost significant[ly] . . . never applied strict scrutiny, the proper standard when

fundamental rights are implicated, but instead invalidated the Texas statute on rational

basis grounds . . . .” Id. at 816-17 (citations and internal quotation marks omitted); see

also Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1237 (11th Cir. 2004) (“As we noted

in Lofton, we are not prepared to infer a new fundamental right from an opinion that

never employed the usual Glucksberg analysis for identifying such rights. Nor are we

prepared to assume that Glucksberg–a precedent that Lawrence never once mentions–is

overruled by implication.”) (citation omitted).

In the present case, as the magistrate judge and district court correctly concluded,

this split of authority provides strong support under AEDPA to affirm the decision of the

Ohio Supreme Court. In light of the disagreement among the circuits and the wellreasoned authority in favor of respondent, we hold that the Ohio Supreme Court did not

unreasonably apply clearly established federal law in reviewing Ohio Rev. Code

§ 2907.03(A)(5) for a rational basis. See Wright v. Van Patten, 552 U.S. 120, 126 (2008)

(explaining that “[b]ecause our cases give no clear answer to the question presented, let

alone one in [the defendant’s] favor, it cannot be said that the state court unreasonably

applied clearly established Federal law”) (internal quotation marks and alterations

omitted); id. at 128 (Stevens, J., concurring) (“[T]he question is not the reasonableness

of the federal court’s interpretation [of the precedent at issue], but rather whether the

[state] court’s narrower reading of that opinion was ‘objectively unreasonable.’”)

(citation omitted); see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (concluding
No. 09-3942 Lowe v. Stark County Sheriff Page 8

that the fact that “lower courts have diverged widely” on the question presented

“[r]eflect[s] the lack of guidance from this Court” and supports a finding that “the state

court’s decision was not contrary to or an unreasonable application of clearly established

federal law”).

Furthermore, assuming that Lawrence clearly established a fundamental right

and/or a higher standard of review, we hold that neither the right nor standard is

implicated in the present case. In this regard, we agree with the Seventh Circuit’s

decision in Muth v. Frank, 412 F.3d 808 (7th Cir.), cert. denied, 546 U.S. 988 (2005).

There, the defendant was convicted of incest in a Wisconsin state court and argued that

“Wisconsin’s incest statute is unconstitutional insofar as it seeks to criminalize a sexual

relationship between two consenting adults.” Id. at 810. The defendant filed a petition

for habeas corpus relief that the federal district court denied. On appeal, the Seventh

Circuit affirmed, concluding that “[g]iven . . . the specific focus in Lawrence on

homosexual sodomy, the absence from the Court’s opinion of its own ‘established

method’ for resolving a claim that a particular practice implicates a fundamental liberty

interest, and the absence of strict scrutiny review,” there was no clearly established

federal law “that supports [the defendant’s] claim that he has a fundamental right to

engage in incest free from government proscription.” Id. at 818.

A similar conclusion applies here. As the Seventh Circuit held, Lawrence did

not address or clearly establish federal law regarding state incest statutes. Indeed, the

Lawrence Court expressly distinguished statutes like Ohio Rev. Code § 2907.03(A)(5)

when it emphasized that “[t]he present case does not involve . . . persons who might be

injured or coerced or who are situated in relationships where consent might not easily

be refused[.]” Lawrence, 539 U.S. at 578. Unlike sexual relationships between

unrelated same-sex adults, the stepparent-stepchild relationship is the kind of

relationship in which a person might be injured or coerced or where consent might not

easily be refused, regardless of age, because of the inherent influence of the stepparent

over the stepchild.
No. 09-3942 Lowe v. Stark County Sheriff Page 9

Moreover, the State of Ohio’s interest in criminalizing incest is far greater and

much different than the interest of the State of Texas in prosecuting homosexual

sodomy. Ohio’s paramount concern is protecting the family from the destructive

influence of intra-family, extra-marital sexual contact. This is an important state interest

that the Lawrence Court did not invalidate. For these reasons, we hold that the Ohio

Supreme Court’s decision was not contrary to and did not involve an unreasonable

application of clearly established federal law.

Lowe’s remaining arguments are meritless. His claim that the Ohio law is

contrary to Lawrence because it is morality-based fails for two reasons. First, the state

has a legitimate and important interest in protecting families. See Michael H. v. Gerald

D., 491 U.S. 110, 123-24 (1989) (“Our decisions establish that the Constitution protects

the sanctity of the family precisely because the institution of the family is deeply rooted

in this Nation’s history and tradition.”) (citation and internal quotation marks omitted);

see, e.g., Camp v. State, 704 S.W.2d 617, 619 (Ark. 1986) (“[S]ociety is as concerned

with the integrity of the family, including step and adoptive relationships as well as those

of blood relationships, and sexual activity is equally disruptive, whatever the makeup of

the family.”). Second, the Lawrence Court did not categorically invalidate criminal laws

that are based in part on morality. Cf. Williams v. Morgan, 478 F.3d 1316, 1323 (11th

Cir. 2007) (concluding that “public morality survives as a rational basis for legislation

even after Lawrence”). Finally, Lowe’s assertion that Ohio’s “generalized interest in

protecting the family unit” cannot support the statute as applied in this case because

“there is no evidence in the record that beyond [his] technical status as stepfather an

actual family unit even existed” is also without merit. Ohio has an interest in protecting

all families against destructive sexual contacts irrespective of the particular factual

family dynamic.

IV.

For these reasons, we affirm the judgment of the district court.