Skip to comments.Supreme Court Strikes Down Gay Sex Ban
Posted on 06/26/2003 7:25:57 AM PDT by jethropalerobber
Supreme Court Strikes Down Gay Sex Ban
WASHINGTON - The Supreme Court struck down a ban on gay sex Thursday, ruling that the law was an unconstitutional violation of privacy.
The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.
The case is a major reexamination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state's ability to classify as a crime what goes on behind the closed bedroom doors of consenting adults.
Thursday's ruling invalidated a Texas law against "deviate sexual intercourse with another individual of the same sex."
Defending that law, Texas officials said that it promoted the institutions of marriage and family, and argued that communities have the right to choose their own standards.
The law "demeans the lives of homosexual persons," Justice Anthony M. Kennedy wrote for the majority.
A clear conflict of interest......
Important point -- but I believe that if it's not mentioned in the federal constitution, states have a right to regulate it, right?
On constitutionalist grounds, agreed. On practical grounds, no. Had they found equal protection basis for homosexual sodomy, the next step would be equal protection grounds for gay marriage, adoption, etc.. However, a ruling based on privacy, however nebulous, can't reasonably be applied to marriage or adoption.
I've been sneering all week at conservatives who try to find a silver lining to the AA decision. But there really may be a silver lining to this one.
You're twisting the meaning of the passage, which was prohibiting unreasonable searches and seizures. The so-called right to privacy does not begin or end at someone's house. The court didn't say that the sodomy law could not be enforced only inside someones home, it cannot be enforced anywhere. If 2 homos engage in a sex act in a public park, there is no expectation of privacy, yet this ruling would protect them from the sodomy charge.
Some argue that just meant the Federal government orginially, others -- the winning majority -- hold that it includes ALL levels of government in the Nation and States.
So sure there is right to privacy, a right to drive on the public road, a right to conduct business -- yet the STATES can and do restrict and regulate those rights, and are empowered to do so as we have established the state charters and state constitutions, and elect the state legislators.
Remember that sodomy also includes oral sex under many sodomy statutes. Some states' statutes, including Louisiana's (I know because I used to live there), also apply to such relations between heterosexual couples. (Too bad Mr Clinton never took Miss Lewinsky with him to New Orleans. I'd trust Cajun jurors more than the US Senate for a fair impeachment trial.)
Let me add that as a Texan, I'm not too pleased that activist judges have invoked the Fourteenth Amendment in a case which should've been judged on the Tenth Amendment. Today's majority opinion and Justice O'Connor's concurring opinion rely on two separate clauses emanating from the Fourteenth Amendment; the former is based on due process, the latter is based on equal protection. The Court's incessant invocation of the Fourteenth Amendment -- which was also raised in the University of Michigan Law School affirmative action case -- is a massive loophole that liberal appelants are using at every turn with great success (thanks to activist judges like Mr Kennedy).
Justice Scalia hit the nail on the head in his dissent, writing:
Having decided that it need not adhere to stare decisis [i.e., letting previous decisions stand (following citations of Casey)], the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim...
Justice Scalia also warns that Justice O'Connor's consenting opinion "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples" as she "argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor." The majority decision also leaves an opening (I sure do hate using that phrase when discussing sodomy).
Now that they've overruled the wishes of the Texas electorate, I hope Justices O'Connor, Ginsburg, and Stevens will soon retire.
You're missing the point. Whatever "constitutional rights" the Supreme Court finds serve as a very real limit on the actions of the government.
We may all have inalienable rights not enumerated in the Constitution or anywhere else, but the ones the government are going to recognize and protect or enforce are going to come from this document.
Yes ma'am, and the same goes the sale or distribution of any other artificial device resembling genitalia or designed or used for sexual stimulation. So don't pack your "toys" if you go to Mardi Gras. ;-)
Does that include a condom? Sorry couldn't resist asking.
The prohibition is a limit on the legal mode of infringement of the right. The right regards privacy, a search is infringement on that right.
The court erred when it nullified the TX law on privacy grounds, because the law didn't infringe on privacy, it forbade an act unrelated to the matter of privacy. The court also erred in the '70s when it negated state abortion laws on privacy grounds. That line of reasoning also would negate all laws, as long as the criminal activity was a private matter for the criminals. The court was acting to install their vision, nothing else.
The reason the right to privacy exists as an enumerated right is that the founders valued it. Their privacy was important and they realized, that w/o that enumeration and limit placed on it's infringement, the whim of the rulers to search at will would reign. The idea that the people should open up their lives to demonstrate to the govm't that they had nothing to hide would quickly end up the norm of operation and the establishment of a stubborn and oppressive tyranny.