Lowe v. Swanson - 663 F.3d 258 (6th Cir. 2011)

Rule:

Under the "unreasonable application" clause of 28 U.S.C.S. § 2254(d)(1), habeas relief is available if the state court identifies the correct governing legal principle from the United States 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. 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.

Facts:

Petitioner Paul 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). 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. 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. 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. The Ohio Court of Appeals upheld Lowe's conviction on direct review. The Ohio Supreme Court affirmed, determining that Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) 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. Accordingly, the court held that Lowe's conviction was constitutional because as applied in the case, R.C. 2907.03(A)(5) bore 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. 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 federal district court denied the petition. Lowe appealed. 

Issue:

Did the Ohio Supreme Court unreasonably apply clearly established federal law in reviewing Ohio Rev. Code Ann. § 2907.03(A)(5)? 

Answer:

No.

Conclusion:

A split of authority among the circuit courts of appeals over whether a heightened standard, greater than a rational basis, governed the liberty right protected by the Due Process Clause of the Fourteenth Amendment for sexual conduct between consenting adults provided strong support to affirm the decision of the Ohio Supreme Court under the Antiterrorism and Effective Death Penalty Act of 1996. In light of the disagreement among the circuits and the well-reasoned authority in favor of respondent sheriff, the Ohio Supreme Court did not unreasonably apply clearly established federal law in reviewing Ohio Rev. Code Ann. § 2907.03(A)(5) for a rational basis. Furthermore, assuming that Lawrence clearly established a fundamental right and/or a higher standard of review, neither the right nor standard was implicated. Unlike sexual relationships between unrelated same-sex adults, the stepparent-stepchild relationship was 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. The State of Ohio had an interest in criminalizing incest.