The Supreme Court strikes down sodomy laws!
CNN
reports on the 6-3 ruling:
The majority opinion, written by Justice Anthony Kennedy, appears to cover similar laws in 12 other states and reverses a 1986 high court ruling upholding sodomy laws. Kennedy wrote that homosexuals have "the full right to engage in private conduct without government intervention." ... "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime," Kennedy wrote.
"The court has largely signed on to the so-called homosexual agenda," growled Justice Scalia, who wrote for the three dissenters who think the state should be allowed to barge into you bedroom in the middle of the night and drag you to prison for engaging in adult, consensual, noncommercial sexual relations. Scalia, AP reports, took the unusual step of reading his dissent from the bench. "The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals." How nice.
Added benefit: Rick Santorum and his ilk can't keep saying that
they're just echoing the Supreme Court when mouthing their bigotry.
The new interpretation of the law of the land:
"The central holding of Bowers [v. Hardwick] has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. ... Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."
Here's a wonderful observation from the New York Times discussion board. As you read it, keep in mind that Justice Kennedy was a Reagan appointee.
The Ruling.
The full decision is now online. Of the six justices ruling against the Texas sodomy law, five joined Justice Kennedy in overturning Bowers v. Hardwick outright, basing their decision on the Due Process Clause. As Kennedy wrote, "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."
Justice O'Connor concurred in overturning the Texas law, which applied only to same-sex sodomy, but did not join the Court in overturning Bowers. Basing her concurring judgment instead on the Fourteenth Amendment's Equal Protection Clause, O'Connor would not have ruled on sodomy laws that apply to both homosexuals and heterosexuals (if "neutral both in effect and application"), and instead would have only overturned statutes that targeted homosexuals exclusively. Given that she originally was part of the majority in the Bowers decision, that's not surprising.
O'Connor took pains to note that finding same-sex sodomy laws unconstitutional under the Equal Protection Clause "does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review," and -- in a nod to both military policy and marriage -- wrote: "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage."
Those battles will continue to be waged on their own terms, but despite O'Connor's caveat today's ruling can't help but raise the legal bar for justifying discriminatory practices against gays and lesbians as "rational" rather than merely based on prejudice. This is a huge victory.
Scalia's Case for Same-Sex Marriage.
In his rage against the overturning of Bowers v. Hardwick, and
thus state sodomy statutes, Justice Scalia has managed to deliver a
series of strong arguments in favor of same-sex matrimony. He fumes
in his dissent to Lawrence, a la Rick Santorum:
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bower's validation of laws based on moral choices. Every single one of these laws is called into question by today's decision [overturning Bowers]."
Taking on Justice O'Connor's concurring opinion based on the
Equal Protection Clause, he argues that the Texas sodomy
statute:
"...does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex."
And, he adds for good measure, "This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples."
So Scalia thinks overturning Bowers opens the way to gay
marriage. But could this be meant as ammunition in the right's push
for a constitutional amendment barring same-sex marriage?
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