Opinion Released January 31, 2018

Tanya Ramirez v. State of Texas, No. 13-16-00069-CR (Opinion by Justice Rodriguez; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from a judgment convicting a high school employee of having sex with two students, the Thirteenth Court of Appeals analyzed whether engaging in consensual sex is a fundamental right.

Tanya Ramirez was indicted for violating Penal Code Section 21.12(a)(1) by having sexual intercourse with a student, T.P., at the high school where Ramirez worked. Ramirez filed a motion to dismiss and/or motion for declaratory judgment, arguing that the statute was facially unconstitutional because it violated her right to privacy, was content-based, and did not satisfy the strict scrutiny standard. The trial court denied Ramirez’s motion. The indictment was later amended to add a second charge against Ramirez for having sex with a different student, B.J. Ramirez did not move to dismiss the charges related to B.J.

Ramirez pleaded guilty to Count 1 and no contest to Count 2. She was sentenced to five years’ confinement on each count, to run concurrently. The trial court suspended her sentences and placed her on community supervision for 7 years with a fine of $4,000 and restitution of $400.

Ramirez appealed the constitutional issue, arguing that section 21.12 infringes on her right to privacy.

Held: Engaging in consensual sex is not a fundamental right, and thus Section 21.12 of the Texas Penal Code is not subject to strict scrutiny analysis. The judgment of conviction was affirmed.

On appeal, Ramirez argued that the right to engage in consensual sex is a personal privacy right that relates to the rights of marriage, procreation, contraception, family relationships, and the like. Ramirez argued that Section 21.12 implicates her fundamental right to engage in consensual sex, and thus the strict scrutiny standard of review applies. Since the statute cannot pass the strict scrutiny test, it must be struck down.

The Thirteenth Court held however, that the right to consensual sex is not a fundamental privacy right. The court acknowledged that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), referenced consensual sex as an “intimate association” that served as one of 4 bases for showing that the right to marry was fundamental under the Contrary. The Obergefell opinion did not—contrary to Ramirez’s argument—hold that intimacy itself was a fundamental right. Similarly, in Lawrence v. State, 539 U.S. 558 (2003), the Supreme Court held that consenting adults had a right to have sex free from government intrusion, but did not hold that the right was fundamental. Rather, the Lawrence opinion applied the rational basis test. Furthermore, the Texas courts of appeals that have addressed the issue have held that Section 21.12 does not implicate a fundamental right. The Thirteenth Court thus agreed with its sister courts and held that engaging in consensual sex is not a fundamental right.

Since Ramirez challenged the statute under the inapplicable strict scrutiny standard, the Thirteenth Court did not address those arguments. The court overruled Ramirez’s sole issue and affirmed the judgment.

Read the Full Opinion Here