Lawrence v. Texas Scorecard: Federal

A long, long time ago, I promised to bring to this space a scorecard showing the application of Lawrence v. Texas by the lower courts. At long last, here it is. I haven't tried to give a detailed analysis, but simply to provide the cases, the state action or policy subject to challenge, the level of due process scrutiny applied, and the result.

CIRCUIT	CASE	SUBJECT	LEVEL OF REVIEW	RESULT
First	Cook v. Gates, 528 F.3d 42 (2008)	Don't Ask, Don't Tell policy	Intermediate scrutiny	Valid
Second	No case
Third	U.S. v. Extreme Associates, 431 F.3d 150(2005)	Obscenity	Rational basis	Valid
Fourth	No case
Fifth	Reliable Consult. v. Earle, 517 F.3d 738 (2008); see also U.S. v. Coil 442 F.3d 912 (2006) (obscenity)	Sex toy ban	Rational basis	Invalid
Sixth	Beecham v. Henderson County, Tennessee, 422 F.3d 372 (2005); see also Flaskamp v. Dearborn Public Schools, 385 F.3d 935 (2004)	Firing for adultery	Rational basis	Valid
Seventh	No case
Eighth	No case
Ninth	Witt v. Secretary USAF, 527 F.3d 806, (2008)	DADT	Intermediate scrutiny	Invalid
Tenth	Seegmiller v. LaVerkin City, 528 F.3d 762 (2008)	Firing for adultery	Rational basis	Valid
Eleventh	Lofton v. Secretary FDFC, 358 F.3d 804 (2004); Wililams v. Morgan, 478 F.3d 131 (2007)	Adoption ban; Sex toy ban	Rational basis (both)	Valid (both)
D.C.	No case

Adultery still a tort

An insurance liability decision by the Eighth Circuit Court of Appeals today provides a rare glimpse of the persistence the tort of "alienation of affections" in states such as South Dakota, and of the use of emotional distress claims for extramarital affairs. (I tackled these torts way back here.)

Here, Mr. Baar sued Mr. Pins for having an affair with his wife, and Mr. Pins sought to have State Farm Insurance defend and indemnify him under an accident liability policy. Pins failed; Baar's suit continues in state court.