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More on Supreme Court decision


Just read the Supreme Court's opinions (that's a PDF file) in the Texas sodomy case (Lawrence et al. v. Texas). (Thanks for the pointer, Vardibidian!) Fascinating reading as usual.

The majority opinion, for example, contains a fascinating discussion of the history of anti-sodomy laws in the US and elsewhere, as part of a discussion of the Court's 1986 Bowers v. Hardwick decision (in which it upheld a Georgia anti-sodomy law). The majority opinion in Bowers included the notion that prohibitions on sodomy had "ancient roots." This new decision says:

Far from possessing "ancient roots," [...] American laws targeting same-sex couples did not develop until the last third of the 20th century. [...] It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so.

I admit that, despite my strong approval of the results of the Court's ruling in Lawrence, I'd been a little dubious of the overturning of such a relatively recent decision as Bowers. But I think the Justices make a pretty compelling case against Bowers. For example, in Bowers:

Justice Powell pointed out that these prohibitions [against sodomy] often were being ignored[...]. Georgia, for instance, had not sought to enforce its law for decades. [...] ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").

The Lawrence opinion goes on to further undermine the Bowers decision's claim that this sort of prohibition is near-universal:

[The] European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom [...]. [This decision was, and is, authoritative] in all countries that are members of the Council of Europe (21 nations then, 45 nations now)[...].


In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances.

So the majority opinion in Lawrence is really saying that Bowers shouldn't be regarded as a precedent, because it was a poor legal decision in the first place:

Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

There's some really inspiring stuff in this opinion. I'm a little put off by all the bits about human dignity and the ability to seek answers to Great Cosmic Questions about the place of human life in the universe and so on (that bit, btw, which has been widely quoted in news reports, was itself a quote from an earlier Court decision), but I really like some of the other general philosophical comments:

If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.


The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code."

And finally, a quote from Eisenstadt v. Baird (1972) (a case about a law prohibiting selling contraceptives to unmarried people) (did you know that was illegal in parts of the US in 1972?):

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

I thought O'Connor's concurring opinion was also interesting. She doesn't agree with the privacy part, but does say that the Texas law isn't consistent with equal protection. And then she concludes that:

Whether a sodomy law that is neutral both in effect and application [...] would violate [...] the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. In the words of Justice Jackson: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. [...] Railway Express Agency, Inc. v. New York [...] (1949)

Hee—in other words, force the bad law to apply to the majority as well as the minority, and the legislators will doubtless be forced to get rid of the law. A cute idea (though somewhat undercut by the fact that some states do have longstanding anti-sodomy laws that apply regardless of the sexes of the participants).

Oddly, O'Connor goes on to defend marriage in a way that I'm pretty dubious about:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

And that's where I think she's headed onto shaky ground. What exactly are those reasons, pray tell? There are plenty of reasons I think are valid—but none of them require that the participants in a marriage be one man and one woman.

So O'Connor attempts to preemptively avoid the possibility of anyone using this decision to attack laws that prohibit same-sex marriage, but I don't think she makes a strong enough or supportable enough statement to stop such an attempt. And I think that, loathesome as I find his politics, Scalia is right on target in believing that Lawrence is (among other things) a stepping-stone to challenges to marriage laws. I think it'll be a mistake to make such a challenge anytime in the next decade; the country simply isn't ready for it, and it would alienate a lot of people who might, given more time, be won over. But I think the challenge will happen soon, because I think various people will want to strike while the iron's hot, and it'll be very very interesting to see how the Court manages to defend marriage in light of this decision.

And in fact, overall I think Scalia's opinion is, except for the ad hominem attacks on his fellow Justices about accepting the "homosexual agenda" (why don't they ever let bisexuals see this agenda?), well-reasoned and fairly convincing about a lot of things. Again, I vehemently disagree with him politically, but he makes some unfortunately compelling points about the Court's inconsistency. I even find his objection to O'Connor's equal-protection approach reasonably interesting: he notes that the law that prohibits same-sex sodomy per se does not discriminate against homosexuals, merely against homosexual acts, and that even if homosexuals are much more likely to perform such acts than heterosexuals, that's no more compelling than saying that nudists are more likely to be nude than non-nudists and therefore that anti-nudity laws don't afford equal protection to nudists. My gut feeling is that this analogy doesn't hold water, but I'm having a hard time explaining why.

Finally, I find it interesting that Thomas felt the need to supply his own opinion in addition to concurring with Scalia's; the reason I find it interesting is that Thomas's is really really short. It basically says two things:

  • The Texas law is "uncommonly silly" (this much-quoted comment about silliness is actually Thomas quoting from another decision) and he would vote against it if he were a legislator.
  • He doesn't see a right to privacy in the Constitution.

I can understand why he would want to make a point of the latter item; it's a big deal. But I'm amazed that he would spend the entire first paragraph of a two-paragraph opinion noting that he thought the law was (although Constitutional) a bad law. If even Clarence Thomas thinks this is a bad law, maybe there's hope for the future after all.


Great analysis, Jed. A couple of things come to my feeble, sleep-deprived mind.

1) Scalia is an evil genius. He's a good writer (or, you know, editor, depending on what his actual process is), and his opinions are always well-grounded in logic and precedent. They are often wrong, and also often mean-spirited and vicious; they appeal to me on an abstract level, but the universe he describes is not the one I perceive. I'm not actually sure his is inhabited. His nudist example is a terrific one; after all, if homosexual activity is a deviant counter-cultural practice, which exists in the first place only because some people aren't sufficently socialized, then the appropriate cultural response to it is to censure it even more strongly. The fact that this isn't even true of nudism (in the universe I perceive) doesn't apply.

2) O'Connor has, over time, shown skepticism over the privacy right, but buys into the idea that adult citizens, on the whole, should be equal before the law. She also tends (more than, say, Scalia or Breyer) to give a good deal of weight to the actual details of the case, rather than the theory of law. If she doesn't have to create a new structure in order to decide a case, she won't. In some ways, I like that about her, but if she were a gut-instinct liberal, I'd probably want her to stick her neck out more.

3) I still haven't read through the whole decision, but I really found the bit you pulled out about "subject[ing] homosexual persons to discrimination" provocative. That is precedent for considering "homosexual persons" a protected class, defined by that characteristic (I'd have to read the context more to find how it might be defined). Clearly, inclusion in that group is not implied to be a matter of choice. Of course, bisexuals are still devos, you know.

It would have been interesting to see a fellow prosecuted for simultaneously having sex with a man and a woman; would the Court have understood the heterosexual sex to kick the man out of the protected class? Of course, since there is now a right to privacy, it'll never be argued.


Thanks, V.! I'm now tempted to go back and re-read the parts of the opinion which might tend to define "homosexual person," because I wasn't reading those parts critically last night, and somehow it didn't occur to me to try to figure out where devo bi people like me fit into the picture. But I've got a lot to do today, so I'll refrain.

A thought about a possible hole in Scalia's Nudism Analogy (maybe that should be a band name): if laws framed in terms of behavior rather than group identity are Constitutional, then what about laws discriminating on the basis of darkness of skin? After all, most caucasians could develop deep tans if they tried, so if you define the threshold light enough, you're discriminating against some caucasians as well as against naturally brown people, so it would be okay to make a law against people of a particular skin shade or darker having sex, yes? (Or, more plausibly, against their having sex with lighter-skinned people.) Similarly, you could make a law against hair-straightening (because even though African-Americans are more likely than European-Americans to straighten their hair, anyone whose hair isn't completely straight could do it), or against (say) listening to rap music (even in the privacy of your home) (though rap may've become mainstream enough by now that this wouldn't be quite analogous either). Anyway, my point is that this love-the-sinner-hate-the-sin approach to checking Constitutionality leaves the door open for all sorts of deviously phrased laws that discriminate against classes of people by prohibiting common behaviors they might engage in. Does that make sense?

Does it follow from Scalia's Nudism Analogy that he would find constitutional a law that made it illegal for people to be naked in the privacy of their own homes? (Well, presumably he wouldn't find it unconstitutional on an equal protection basis.)

Equal protection is a really judicially hairy topic: the Supreme Court has often interpreted it in ways that I find bizarre.

On O'Connor's point about gay marriage: I'm also curious about what these compelling state interests in heterosexual marriage are. (I've been happily heterosexually married for nearly six years now, and the only interest the state seems to take in it is in how I file my tax return.) Other people that I've talked to, when pressed on the matter, usually start talking about bearing and raising children. But there are plenty of options (in vitro fertilization, surrogate motherhood, adoption) for gay people who want to have children. And I expect that, within my lifetime, biotechnology will make it possible for two people of the same sex to conceive a child together (though whether it will be legal is another matter).

Yep re the state interests in marriage. The other half of the equation is that defining marriage in terms of bearing and raising children means that het married couples who don't or can't bear and raise children should also not be protected.

What it comes down to is that defining marriage as consisting of one man and one woman is a religious thing. I don't mean to be dismissive of that; that it has a religious basis makes it more important to the people it's important to, not less. But it also makes it very difficult to justify in a non-religious context, such as (supposedly) U.S. law.

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