California attorney David Link, an
IGF contributing author, emailed to support Lambda Legal Defense's
brief in the Lawrence sodomy law case (after I had taken
Lambda to task for citing Roe v. Wade as a precedent).
David writes, in part:
Amicus briefs can (and should) be much more focused than the briefs of the parties, which have an obligation to address all the legal issues in the case. ... [T]he substantive due process issue is necessarily implicated if we want to have the court overturn Hardwick -- since it was based on substantive due process.... The court could distinguish Lawrence from Hardwick on equal protection grounds, leaving Hardwick standing, but applying to all sodomy laws as long as they treat all citizens equally irrespective of sexual orientation. That's one way to go.
But some think the better approach is to have the court overturn Hardwick entirely, and that requires addressing the question of constitutional privacy. (Unless, of course, the court were to strike off on some completely novel direction, like a more narrow focus on constitutional liberty, which, I think, is unlikely from this court). Thus, Lambda had a responsibility to brief the right to privacy, and that logically includes Roe. It would be possible to cite all the other privacy precedents, from Griswold v. Connecticut on, skipping over Roe, but that would be disingenuous. I think I'm safe in saying that the members of the US Supreme Court would probably be smart enough to notice the elephant that isn't in the room.
Well stated, but as a non-attorney court-watcher I still have
doubts. I replied as follows:
It's been said that the majority in Hardwick delivered the opinion they wished they could have given to overturn Roe. If anything, Roe's reasoning is held to be even more suspect by the court majority today. So it sure seems like an extremely bad tactical move -- and really, for what end?
O"Connor and Kennedy may not want to unleash the furies by overturning Roe, but they certainly hold its reasoning in disdain and don't want to grant Roe any added credibility. And the response from Thomas, who some felt was reachable with limited-government-intrusion arguments (as in the Institute for Justice amicus brief, which argues for overturning Hardwick without staking a claim to the elusive "privacy right") would be likely to react even more negatively. So from this layman's perspective, it was a firecracker that shouldn't have been tossed.
I realize the folks at Lambda are extremely dedicated and hardworking. But their staff attorneys, with only a few exceptions, are from the liberal to left side of the spectrum, as they too often demonstrate. Wooing the center-right justices should have been the obvious goal, but one that may have clashed with their cultural milieu (i.e., NARAL and pals), so I stand by my criticism.
By the way, Lambda Legal Defense's website now includes its brief as well as all supporting amicus briefs.
To tell the truth, I couldn't bear to read what the National Gay
and Lesbian Task Force, National Center for Lesbian Rights, Human
Rights Campaign, People for the American Way, Puerto Rican Legal
Defense and Education Fund, AFL-CIO, and other activists on the
liberal left had to say to the court, but I doubt they've presented
arguments that might effectively convince conservative justices to
find sodomy laws unconstitutional. Far more likely, they"ve
compiled legal theorizing that's anathema to the center-right swing
votes on the court, but red meat to their own members and
donors.
--Stephen H. Miller