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.