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mattlistenerGood reading today at www.supremecourtus.gov!
The Supreme Court, in Lawrence vs. Texas (2003), just overturned the Texas statute criminalizing sodomy between same-sex partners by a 6-3 majority. In its ruling it also overturned the SJC's own prior decision in Bowers vs. Hardwick (1986), which upheld a Georgia sodomy law on the grounds that there was no constitutional right to practice sodomy.
It gets better. The Court could have overturned this statute on Equal Protection grounds that it prohibited something to same-sex couples that is allowed to opposite-sex couples. Instead they overturned it under the Due Process Clause on the grounds that there was "no legitimate state interest" advanced by the Texas law that merits intervention by the government in the defendants' private sexual conduct. Currently 4 states prohibit sodomy only to same-sex couples, and 9 states prohibit sodomy to both same- and opposite-sex couples. Today's decision appears to overturn those laws in all 13 states.
Furthermore, consider these words, from Justice Scalia's dissent:
It seems obvious to me that bestiality and obscenity laws could still be upheld on the basis of harm done to non-consenting others. But indeed, there doesn't seem to be anything in the majority opinion that leaves constitutional grounds for morality laws without victims. To which I say, about time!
Bowers was a much-quoted Supreme Court decision in the upholding of States' anti-sex laws in the last 17 years. Its reversal, and this broadly-applicable decision, will give courts immense power to overturn morality laws in the coming years. In particular I'd expect, this decade, to see Supreme Court challenges to adultery laws and gay-marriage bans.
Justice O'Connor, who voted with the Bowers majority in 1986, voted with the majority in the outcome of this decision as well. In a separate opinion today she disagreed with this majority's reasoning, saying she would overturn the Texas law on the weaker Equal Protection grounds, which would not apply to the 9 states that ban sodomy between opposite-sex couples as well as same-sex couples. She also made it explicit that she felt that "preserving the traditional institution of marriage" was a legitimate state interest. However, the opinion signed by the other *5* justices holds no such reservations, so it very much appears that a challenge to the States' right to prohibit same-sex couples to marry would be upheld by our current court.
Unfortunately, Chief Justice Rehnquist and Justice Stevens -- on opposite sides of today's decision -- are both likely to retire before the 2003-2004 supreme court season. ( That will leave Justice O'Connor, first-ever female Justice, as the most senior member of the court!) Unfortunately it's the President who gets to nominate Justices, so if Bush manages to get two more in the Scalia-Thomas ultra-conservative camp (the minority in this decision), future decisions will be decided conservatively if they can swing *either* O'Connor or Kennedy, as opposed to both. O'Connor would clearly swing conservative in a gay-marriage challenge, so I don't think we'll actually see federal gay marriage in this country until Democratic presidents get another SJC appointment or two. But I still think it's coming.
Whew! Lawrence vs. Texas (2003). I bet you'll be hearing reference to this decision a lot in the coming years.
"The arc of the moral universe is long, but it bends toward justice." -MLK, Jr
The Supreme Court, in Lawrence vs. Texas (2003), just overturned the Texas statute criminalizing sodomy between same-sex partners by a 6-3 majority. In its ruling it also overturned the SJC's own prior decision in Bowers vs. Hardwick (1986), which upheld a Georgia sodomy law on the grounds that there was no constitutional right to practice sodomy.
It gets better. The Court could have overturned this statute on Equal Protection grounds that it prohibited something to same-sex couples that is allowed to opposite-sex couples. Instead they overturned it under the Due Process Clause on the grounds that there was "no legitimate state interest" advanced by the Texas law that merits intervention by the government in the defendants' private sexual conduct. Currently 4 states prohibit sodomy only to same-sex couples, and 9 states prohibit sodomy to both same- and opposite-sex couples. Today's decision appears to overturn those laws in all 13 states.
Furthermore, consider these words, from Justice Scalia's dissent:
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,”... the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,”... (emphasis addded). The Court embraces instead JUSTICE STEVENS’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,”... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
It seems obvious to me that bestiality and obscenity laws could still be upheld on the basis of harm done to non-consenting others. But indeed, there doesn't seem to be anything in the majority opinion that leaves constitutional grounds for morality laws without victims. To which I say, about time!
Bowers was a much-quoted Supreme Court decision in the upholding of States' anti-sex laws in the last 17 years. Its reversal, and this broadly-applicable decision, will give courts immense power to overturn morality laws in the coming years. In particular I'd expect, this decade, to see Supreme Court challenges to adultery laws and gay-marriage bans.
Justice O'Connor, who voted with the Bowers majority in 1986, voted with the majority in the outcome of this decision as well. In a separate opinion today she disagreed with this majority's reasoning, saying she would overturn the Texas law on the weaker Equal Protection grounds, which would not apply to the 9 states that ban sodomy between opposite-sex couples as well as same-sex couples. She also made it explicit that she felt that "preserving the traditional institution of marriage" was a legitimate state interest. However, the opinion signed by the other *5* justices holds no such reservations, so it very much appears that a challenge to the States' right to prohibit same-sex couples to marry would be upheld by our current court.
Unfortunately, Chief Justice Rehnquist and Justice Stevens -- on opposite sides of today's decision -- are both likely to retire before the 2003-2004 supreme court season. ( That will leave Justice O'Connor, first-ever female Justice, as the most senior member of the court!) Unfortunately it's the President who gets to nominate Justices, so if Bush manages to get two more in the Scalia-Thomas ultra-conservative camp (the minority in this decision), future decisions will be decided conservatively if they can swing *either* O'Connor or Kennedy, as opposed to both. O'Connor would clearly swing conservative in a gay-marriage challenge, so I don't think we'll actually see federal gay marriage in this country until Democratic presidents get another SJC appointment or two. But I still think it's coming.
Whew! Lawrence vs. Texas (2003). I bet you'll be hearing reference to this decision a lot in the coming years.
"The arc of the moral universe is long, but it bends toward justice." -MLK, Jr
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Date: 2003-06-26 07:02 pm (UTC)no subject
Date: 2003-06-27 07:50 am (UTC)