## Facts

- Paul D. Lowe, an Ohio stepparent, was charged with sexual battery for engaging in sexual intercourse with his 22-year-old stepdaughter under Ohio Rev. Code § 2907.03(A)(5).
- Lowe moved to dismiss, arguing the statute was intended to protect minors and was unconstitutional as applied because the state lacked a legitimate interest in regulating consensual adult sex.
- The trial court denied the motion; Lowe entered a no-contest plea.
- Lowe was sentenced to 120 days’ incarceration, three years of community control, and sex-offender classification.
- Ohio appellate courts affirmed, holding the statute applies regardless of the stepchild’s age and that Lowe lacked a constitutionally protected right to engage in sex with his adult stepdaughter.
- The Ohio Supreme Court held Lawrence v. Texas did not establish a fundamental right covering incestuous sex and upheld the statute under rational-basis review as rationally related to protecting the family from destructive intrafamilial sexual relationships.
- Lowe sought federal habeas relief under 28 U.S.C. § 2254; the district court denied the petition, and the Sixth Circuit reviewed after granting a certificate of appealability.

## Issues

1. Whether, under 28 U.S.C. § 2254(d)(1), the Ohio Supreme Court unreasonably applied clearly established Supreme Court precedent (principally Lawrence v. Texas) in upholding Ohio Rev. Code § 2907.03(A)(5) as applied to consensual sex between a stepparent and an adult stepchild.

## Decision

- The Sixth Circuit affirmed the denial of habeas relief.
- The court held the Ohio Supreme Court did not unreasonably apply clearly established federal law.
- The court concluded Lawrence did not clearly establish a constitutional right to engage in incestuous sexual relations with an adult stepchild.
- The court held it was not objectively unreasonable for the state court to apply rational-basis review and find the statute rationally related to a legitimate interest in protecting the family.

## Legal Principles

- Under AEDPA, federal habeas relief is unavailable unless the state court decision is contrary to, or an unreasonable application of, clearly established Supreme Court holdings; an “unreasonable application” must be objectively unreasonable, not merely incorrect.
- “Clearly established” law for § 2254(d)(1) purposes is limited to Supreme Court holdings; habeas relief cannot rest on extending precedent beyond what the Court has clearly decided.
- Lawrence v. Texas does not clearly establish that all consensual adult sexual conduct is constitutionally immune from criminal regulation, and it does not clearly bar states from criminalizing incestuous relations between a stepparent and an adult stepchild.
- A state court does not unreasonably apply Lawrence by upholding an intrafamilial-sex prohibition under rational-basis review based on a legitimate interest in protecting the family from harmful intrafamilial sexual relationships.

## Conclusion

The Sixth Circuit denied federal habeas relief because Lawrence did not clearly establish a constitutional right protecting consensual sex between a stepparent and adult stepchild, and the Ohio Supreme Court’s rational-basis approval of the statute’s application was not objectively unreasonable under AEDPA.


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