Supreme Court decision overturning Texas Anti-Homosexual Sex Law

[davefoc]

This topic was discussed roughly in this thread:
http://www.randi.org/vbulletin/showthread.php?s=&threadid=22273

I was hoping that there would be enough interest in another thread that just dealt with the legal theory of the case.

Link to the text of the decision
http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf

This is the first time that I have read any supreme court decision. I had expected to find the logic of the decision more clearly spelled out. It may be in there, but it will take a more careful reading than I gave it for me to understand it.

One thing, I noticed, was that the court merely said this case was not about prostitution. The court did not say that the legal theory of this case could not be used to find against prostitution laws.

It seemed like, with a lot of words, the court said two things:
1. There is some fundamental right for consenting adults to behave as they wish in private.
2. There is a violation of equal protection because the Texas law only applied to homosexuals.

The argument for item 1 seemed to be that most states don't proscribe the activities that were proscribed by Texas, so , that means that Texas must be wrong. Also there seemed to be a similar argument that the world court doesn't agree with the Texas law either so that really must mean the Texas law is wrong. There was also an argument that the laws were not generally enforced. Is that somehow a legal theory for invalidating a law if it is not routinely enforced?

The argument for item 2 seems like it might be compelling, but I think the court found that laws against sodomy in general were not constitutional even if they weren't limited to just homsexuals. But I'm not sure of that.

The question I have about this decision is exactly what laws can the states make regarding private actions between consenting individuals.
1. Can the state set set the age of consent or is that now a supreme court issue?
2. Can the logic of this decision be applied to prostitution?
3. Can the logic of this decision be applied to prevent states from shutting down gay clubs as was done to reduce the spread of AIDS in San Francisco?
4. Is the supreme court now in charge of deciding what kinds of incest are legal or is this still a state issue?
5. If the equal protection law was used as a basis for this decision then doesn't that make state laws that don't allow homosexual marriage equally unconstitutional?

One request, if anybody chooses to respond to this thread. The topic is not about whether homosexuals should be allowed to have sex in the ways they choose. The topic is about the basis for the supreme court decision.


__________________

[davefoc]

My opinion, which is uninformed and easily subject to change if it is subjected to some facts:

The supreme court essentially acted like a legislature. The majority, at least, believed that homosexuals should have the right to practice sex in the way they choose. The majority then searched around for some constitutional justification to allow them to reach a decision that would allow them to rule in keeping with their moral view.

They didn't find any, so they made some stuff up. The fact that the logic that they came up with might be applied to some other stuff that they don't agree with won't trouble them.

Since they made the legal theories up to justify their decision, they will make some more legal theories up to continue to allow laws against prostitution, etc.

And furthermore, even if some on the Supreme court wanted to legalize prostitution or other items that are proscribed by state laws, they won't because those laws have wide popular support and they won't take a stand against those things because of that support.

[NoZed Avenger]

I thought I'd do a quick drive-by posting on just you rlast questions; I'll try to get back to this, as its an interesting decsion on several levels.

Originally posted by davefoc
The question I have about this decision is exactly what laws can the states make regarding private actions between consenting individuals.
1. Can the state set set the age of consent or is that now a supreme court issue?

Seems to be still within the province of the states -- the Court assumes consenting adults. Assuming that the state law did not violate equal protection (i.e., different ages for consent without a strong basis (and I cannot think of any)), then still a state matter.


2. Can the logic of this decision be applied to prostitution?


Yes and no (a favorite lawyer answer). I think that the Court's mention of this not applying to protitution will provide at least a plausible method for the fedewral courts to avoid dealing with that challenge (with the Supreme Court denying certiori on the matter without explanation. There will therefore be no real application (using my psychic court-predicting powers), but the reasoning could be read to apply to this area.


3. Can the logic of this decision be applied to prevent states from shutting down gay clubs as was done to reduce the spread of AIDS in San Francisco?

This was always subject to attack under Equal Protection grounds, IMO. The standard will not be changed under this decision -- the state must put forward a compelling state interest in order for this type of prohibition to pass muster, and it will be strictly scrutinized by the court system.


4. Is the supreme court now in charge of deciding what kinds of incest are legal or is this still a state issue?

Unclear. This ruling certainly opens the door for a lot of argument on this issue.


5. If the equal protection law was used as a basis for this decision then doesn't that make state laws that don't allow homosexual marriage equally unconstitutional?

See above. Not entirely clear. The issue always lurked in the background, so I am not sure that this decision has changed the law so much as brought the topic to the foreground. The decision will certainly be used as support for the position against "traditional" marriage laws, but whether the courts will latch onto the decision and extend the reasoning is not yet known.

NA

[davefoc]

Well, there was a resounding lack of interest in this thread.

Maybe people felt it had already been adequately discussed in previous thread or they thought intro was bogus and didn't want to post.

I was hoping we might also get some opinions about whether judicial activism is a good thing. In this case, the thought occurs to me that it may have been a bad thing.

If the justices decide that it is a state issue, then there would have been political pressure brought to bare on Texas to change its law and I think Texas would have eventually done that. The notion of states being able to set laws concerning this kind of thing would have been preserved.

[NoZed Avenger]

Originally posted by davefoc
I was hoping we might also get some opinions about whether judicial activism is a good thing. In this case, the thought occurs to me that it may have been a bad thing.

If the justices decide that it is a state issue, then there would have been political pressure brought to bare on Texas to change its law and I think Texas would have eventually done that. The notion of states being able to set laws concerning this kind of thing would have been preserved.

I need to read through the decision -- I have just skimmed the majority -- before coming to any conclusions on that point. The expansion of the "privacy" element -- something read into the text of the Constitution -- causes me some concern, as it represents an expansion of federal (and especially S.Ct.) power.

While the outcome certainly seems justified, there is always the concept that "hard decisions make bad laws." The states may make bad decisions, but the last 30-40+ years have seen a large expansion in the role of the Supreme Court, and thus the federal government, into practically every aspect of our lives.

The Court's reading of the commerce clause and its decsions allowing the federal government to control the states through refusing to return tax money without federal "strings" are troubling. The goals espoused by the Court have always been good, but sometimes the route taken to get to the desired result causes more damage in the long run. More insidious damage, too. At the moment, I think that this decision seems in line with prior Equal Protection decisions (and based on more solid footing here), but I am not as sure about the privacy portions of the opinion.

As I say, I have not really read the decision for comprehension, and have not looked back to Bowers or any of the other decisions to see the evolution -- outside my field at the moment. On balance, it looks like the "right" decision, though the emphasis placed on the different elements of the decision I may or may not agree with.

NA

[toddjh]

Originally posted by davefoc
This is the first time that I have read any supreme court decision. I had expected to find the logic of the decision more clearly spelled out. It may be in there, but it will take a more careful reading than I gave it for me to understand it.

It's funny. This was also the first Supreme Court opinion I've read in full, and it made a good deal of sense to me. At first I disagreed with part of their opinion (which you state as #1 below), but they convinced me.

It seemed like, with a lot of words, the court said two things:
1. There is some fundamental right for consenting adults to behave as they wish in private.
2. There is a violation of equal protection because the Texas law only applied to homosexuals.

The argument for item 1 seemed to be that most states don't proscribe the activities that were proscribed by Texas, so , that means that Texas must be wrong. Also there seemed to be a similar argument that the world court doesn't agree with the Texas law either so that really must mean the Texas law is wrong.

The thing about the world court wasn't to show that the Texas law was wrong, it was to show that the courts in other countries had uniformly disagreed with the Supreme Court's previous ruling on sodomy laws, Hardwick v. Bowers. This has no direct bearing on U.S. law, of course, but they were bringing it up as evidence that the validity of that ruling should be reconsidered.

And, as far as I could tell, the justification for item 1 was based on only one thing: the clause in the 14th amendment stating that the liberty of all citizens should be protected by due process of law. Their interpretation is that the process of law that tells citizens what they can and can't do in their own homes isn't "due."

The argument for item 2 seems like it might be compelling, but I think the court found that laws against sodomy in general were not constitutional even if they weren't limited to just homsexuals. But I'm not sure of that.

Yes, I have absolutely no problem with number 2. To make it a crime for a homosexual couple to engage in certain behavior, while it remains legal for a heterosexual couple to to do exactly the same thing, is blatantly unconstitutional under the equal protection clause.

1. Can the state set set the age of consent or is that now a supreme court issue?

Since the ruling explicitly mentioned that it only applied to "intimate behaviors between consenting adults," or words to that effect, it shouldn't affect age of consent laws.

2. Can the logic of this decision be applied to prostitution?

I hope so. You could still argue for regulation of prostitution on public health grounds, but apart from that, I don't see what business it is of the government's who sleeps with whom.

3. Can the logic of this decision be applied to prevent states from shutting down gay clubs as was done to reduce the spread of AIDS in San Francisco?

Again, since the ruling concerns itself specifically with intimate contact in private homes, I don't think so.

4. Is the supreme court now in charge of deciding what kinds of incest are legal or is this still a state issue?

Good question. My answer would be yes, the logic of the ruling could easily be applied to incest, but that this will never actually come up.

5. If the equal protection law was used as a basis for this decision then doesn't that make state laws that don't allow homosexual marriage equally unconstitutional?

Here's hoping. That's another blatant violation of the equal protection clause.

Jeremy

[davefoc]

toddjh said:
And, as far as I could tell, the justification for item 1 was based on only one thing: the clause in the 14th amendment stating that the liberty of all citizens should be protected by due process of law. Their interpretation is that the process of law that tells citizens what they can and can't do in their own homes isn't "due."

This may be the case but this interpretation essentially says that the Supreme court functions as a legislature since it will now be in charge of deciding what is "due".

I asked the question about age of consent because of my thoughts about this. The court has now decided that sodomy between adults is "due". Now at a minimum it would seem necessary for it to define what an adult is. It might choose to delegate this to the states, but in effect the Supreme court is now in charge of decisions like this.

The actual practical situation seems to be that the supreme court, which by its nature has libertarian leanings, will put its finger into the air and figure out which way the wind is blowing. If the wind is blowing in the direction they want to go they will go there. They admitted as much when the decision contained stuff about what the states are doing and what the world courts is doing.

My prediction is that when the wind isn't blowing towards the libertarian view, they won't go there. Hence, although there is nothing in the legal theories put forth that would allow anti-prostitution laws to continue, the court will not overturn these.

[davefoc]

Another aspect of the decision that I would like people's opinions about is the nature of the written decision.

I thought it was poor. I would have liked to have seen a few paragraphs to a page that describes the legal theory that the case is based on. There was a lot of stuff in the decision and it was difficult to figure out how the evidence presented pertained to the legal theory.

This thing reminded me of the way patent documents are written up. Pages of irrelevant crap. The actual claims are buried in a morass of writing. Is it possible that the legal profession has come to see rambling verbage as superior to succint argumentation because the use of rambling verbage can so easily be used to cover up a lack of substance?

[toddjh]

Originally posted by davefoc
I asked the question about age of consent because of my thoughts about this. The court has now decided that sodomy between adults is "due".

No, it decided that laws regulating things like sodomy are undue. There's a difference. They're talking about laws, not behaviors.

Now at a minimum it would seem necessary for it to define what an adult is. It might choose to delegate this to the states, but in effect the Supreme court is now in charge of decisions like this.

There's already a federal age of consent statute (18, I believe). It's just very rarely enforced. If the states wish to go further and impose a lower age limit themselves, they are fully within their rights to do so.

The actual practical situation seems to be that the supreme court, which by its nature has libertarian leanings, will put its finger into the air and figure out which way the wind is blowing. If the wind is blowing in the direction they want to go they will go there. They admitted as much when the decision contained stuff about what the states are doing and what the world courts is doing.

No, those statements were used only to explain why they felt it was worth their time to go further than strike down the Texas law, and actually consider reversing the Supreme Court's previous ruling. Then they considered the ruling, and then they explained why they thought it was in error.

My prediction is that when the wind isn't blowing towards the libertarian view, they won't go there. Hence, although there is nothing in the legal theories put forth that would allow anti-prostitution laws to continue, the court will not overturn these.

The opinion was actually very clear about the scope of the new ruling, stating that it only applied to private sexual acts between consenting adults. You could make a decent case that prostitution is not entirely private, since government interests (taxation, public health, etc.) enter into the equation.

Jeremy

[NoZed Avenger]

Originally posted by toddjh
There's already a federal age of consent statute (18, I believe). It's just very rarely enforced. If the states wish to go further and impose a lower age limit themselves, they are fully within their rights to do so.


I am unfamiliar with any federal age of consent within the US. I did a quick search on a few legal sites and did not find anything.

I may be wrong, but I don't -think- there is a federal age of consent. It has traditionally been a matter left to the states.

(Not that important to your point, but I saw this and got curious, as I didn't remember ever having seen a federal statute on this.)


NA

[Ricomise]

I posted these comments in the original thread, but will re-post them here as it seems more appropriate.

I first posted before I learned of the Court's decision in response to another post:


quote:
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Is there any constitutional or legal reason why the Supreme Court would possibly uphold the law or is just going through the motions?
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The reason the Court could uphold the law is Bowers v. Hardwick (No, I'm not making up the name!) The case was decided in the early to mid-80's (I can't remember the exact year right now.) This was a challenge to a Georgia statute outlawing all sodomy regardless of gender or age of persons involved. (Incidentally, the law usually defines sodomy as to include both anal and oral copulation.)

Hardwick happened to be a homosexual who was "caught" in the act with another man in his own bedroom by a sheriff who probably had it in for him for personally.

In any event, the case went to the Supremes, and the Court reached a 5-4 decision upholding the constitutionality of the statute. Although the statute related to all sodomy, the Court restricted its decision to the constitutionality of the law as applied to homosexuals because that was the case before them.

The basis of the decision, as written by Justice Byron "Whizzer" White, is that homosexual behavior is not, and has never been a "fundamental right" under the U.S. Constitution. In Due Process (and to some extent Equal Protection) claims, whether the activity being prohibited is a "fundamental right" (FR) determines what level of scrutiny a law will get. If it is a FR, the law must pass "strict sctrutiny." That is, the law proscribing the behavior must be based upon a compelling government interest and must be narrowly tailored to acheive that aim. It is a very difficult test to pass, and most laws that attempt to proscribe FRs are struck down. Justice White distinguished the case from the line of "privacy" cases that began with Griswold v. Connecticut (and continued through Roe v. Wade and its progeny) by stating that those cases involved the fundamental right to procreation and since homosexual activity did not, those cases did not apply. Since this law, as applied to this person did not prohibit a fundamental right, the law gets the "rational basis" test. That is, if the government has any rational basis at all for the law, it can stand.

Hardwick argued that there was no rational basis for it, but the Court decided that since law is often based upon moral decisions, the state of Georgia could conclude that the conduct could be prohibited.

My personal opinion of the Bowers case is that White misinterpreted, either intentionally or unintentionally, the reasoning behind privacy precedent, for reasons I will not expound here. The current case has some obvious differences, but we need to remember that Justices Renquist and O'Conner agreed with the decision at that time, and are still on the Court. I have little doubt where Scalia and Thomas will come down (it won't be to strike down the law), so there may be four votes right there to uphold it. The only Justice remaining on the Court that dissented from Bowers is Stevens. So IMO, it comes down to Souter, Breyer, Kennedy and Bader-Ginsburg.

It is certainly no sure thing.

[Ricomise]

After I read the decision I posted this comment:


quote:
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3,000 years of moral law just went out the window today
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Regardless of Mr. Justice Scalia's hyperbole, (I will attempt to avoid the argument regarding whether law should be based upon morality, that is for another time.) "moral law" hasn't gone anywhere.

The Court's opinion does not say that states can never regulate sexual behavior. What it does say is that a statute that prohibits private, consensual, sexual conduct between competent adults does not further a legitimate government interest. It overrules a decision in Bowers that misapprehended the precedent the Court began in Griswold v. Connecticut.

I agree with Scalia about one thing: that the Court probably should have mentioned the "penumbrial" rights that the original privacy cases rested upon. IMO, those cases should have rested in the "substantive due process" to begin with. I hope this is a beginning of a melding of the right to privacy into that due process context.

A state certainly may have "legitimate" or "rational interest in prohibiting some kinds of sexual conduct. For instance, a state may have an interest in protecting its minor citizens from sexual experiences they may not be capable of understanding or consenting to.

Does it open the way for gay marriage? I would hope so, as I don't see the state's rational interest in proscribing such, but I would doubt a majority of the Court agrees with me. The dicta contained in Justice Kennedy's opinion leads me to believe that gay marriage is still outside the "liberty interest" he described today.



I hope this helps with a little backround on the legal issues.

[toddjh]

Originally posted by NoZed Avenger
I am unfamiliar with any federal age of consent within the US. I did a quick search on a few legal sites and did not find anything.

I may be wrong, but I don't -think- there is a federal age of consent. It has traditionally been a matter left to the states.

(Not that important to your point, but I saw this and got curious, as I didn't remember ever having seen a federal statute on this.)

Well, I misspoke somewhat. There's not a federally defined age of sexual consent, but there is a Constitutionally-defined age of majority, 18. Since this is what the original topic was (determining when someone was an adult), I think it still applies.

There are also federal statutes against bringing someone under 18 across state or national lines, or going across state or national lines to meet someone under 18, for the purpose of sex.

Jeremy

[NoZed Avenger]

Originally posted by toddjh


Well, I misspoke somewhat. There's not a federally defined age of sexual consent, but there is a Constitutionally-defined age of majority, 18. Since this is what the original topic was (determining when someone was an adult), I think it still applies.

There are also federal statutes against bringing someone under 18 across state or national lines, or going across state or national lines to meet someone under 18, for the purpose of sex.

Jeremy

Ah, Ok. Check.

[davefoc]

toddj said:No, it decided that laws regulating things like sodomy are undue. There's a difference. They're talking about laws, not behaviors

exactly todd, that is more in keeping with what I meant.

As to the rest of your comments I hope my post below goes to some of them.

[davefoc]

I have roughly expressed two views in this thread:
1. The Supreme Court acted largely as a legislative body in that in this case it made a decision that was in keeping with its moral views and not a decision based on the constitution or other laws.
2. The written opinions are poorly written and it is difficult to determine exactly how the arguments put forth apply to the legal theories.

I have now read and re-read the opinions and have changed my view somewhat on the second item. Both O'Connor's concurring opinion and the Scalia's dissenting view seemed well written to me. They made points and tied relevant facts to those points. The majority opinion did not do this.

As to item 1 above, I continue to feel that the majority voted their opinion on the morality of the issue and tried to justify that by coming up with tangentially related verbiage to cover up the fact that there was not a legal basis for their decision.

The majority opinion got off to a good start when it clearly stated the issues in the opening:

“1. Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of laws?
“2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
“3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?” Pet. for Cert. i.


The text of the majority opinion was also clear in stating that the final decision would be based on determining if the original Bowers decision which allowed states to keep their anti-sodomy laws was correct when it said.
"We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers."

From that point on the majority opinion put forth a lot of facts with out much discussion about how they were relevant to the decision. As such it was necessary to do a lot of reading between the lines to figure out what the actual arguments were. Below is a summary of the arguments as near as I could tell.

1. There are previous decisions by the Supreme Court, while not as on point as Bowers, that suggest that the court is leaning more to not allowing states to restrict private sexual behavior.
Comment: Pretty neat, argue that we should overturn one exactly on point precedent, because there are less on point precedents that are not consistent with the on point precedent.

2. The law was little enforced.
Comment: Really crafty, a law that prohibits something that is nearly always done in private and therefore just by its nature is rarely enforced should be invalidated because it is little enforced.

3. We think this a liberty that the states should not proscribe and now 37 states and the European court agree with us.
Comment: OK, but 13 states don't agree with you. And anyway what's the relevance? Is what is and what is not a constitutionally protected liberty going to be based on some kind of state polls or world polls? If so, is it now relevant what the Egyptian courts have to say about these issues?

4. There is only a limited historical record of anti-homosexual laws.
Comment: This one is really cute. All thirteen of the original colonies had anti-sodomy laws. So we take a
look at the fact that they didn't have anti-homosexual laws (because the homosexual/heterosexual distinction was rarely made at the time) but we ignore the fact that they all had anti-sodomy laws.


The real argument in favor of this decision is the Supreme court should determine, based on their personal sense of morality, what is a fundamental right and apply that view in making their decisions. The Supreme Court is not ready to admit that this is what they do because they accompanied their decision with a lot of contrived largely irrelevant arguments. But this is in fact what they do.

Ricomise, I have read your posts, but have not specifically commented on them here. I am still thinking about them.

[jj]

I would have been happier if they simply recognized the whole idea of victimless "crime" as an intrusion of religious morals into the state. This would create some problems, indeed, because it would read on prostitution, however it would NOT read on pimps who use force, drugs, etc, and might read on some other things that we don't need to go into right now. Now, yes, the intrusion of religion into law is one of my pet peeves . . .

Anyhow:

Somebody mentioned incest. This is, at least in terms of probability, not a VICTIMLESS crime, the genetic reasoning to prevent incest is fairly impeccable, and the state does have a right to prevent harm to victims.

Ditto underaged people, there's no problem there, since people unable or de-jure unable to consent are not the same as two consenting adults, are they, now?

BUT:

I am also uncomfortable with what I read there in both "overturn" and "uphold" opinions, and with the hysterics about the "breakdown of society", which is an appallingly judgemental and unsupportable thing to put into a Supreme Court opinion. (Bearing in mind I'm not a lawyer.)

I admit to being somewhat startled by Thomas' dissent. It may, in the absense of the intrusion of religion being introduced, the closest to a purely legal decision, something I wouldn't have expected. I would be curious to see how he would have reacted to someone arguing that such proscriptions arise from religion.

I must say that his statement about the law in question was also not what I expected. I can agree that the law in question was "silly". No sweat there. Unfortunately, I would like to see the right to privacy codified in the constitution, since I don't think that the founders had any idea of how electronic other modern forms of survielance could change their intended effects.

[toddjh]

Originally posted by davefoc
I have roughly expressed two views in this thread:
1. The Supreme Court acted largely as a legislative body in that in this case it made a decision that was in keeping with its moral views and not a decision based on the constitution or other laws.

I've seen you say this several times now, but I just don't know what you mean. According to Webster, a legislative body is one which "makes, or has the power to make, a law or laws." What laws are being made here? As far as I know, the only thing that's happened is that a law has been struck down -- and that's what the Supreme Court is for. If you disagree with their logic, that's fine, but I honestly don't see how you could consider their behavior legislative in any capacity.

From that point on the majority opinion put forth a lot of facts with out much discussion about how they were relevant to the decision. As such it was necessary to do a lot of reading between the lines to figure out what the actual arguments were. Below is a summary of the arguments as near as I could tell.

You left out their main point: that Bowers was deeply flawed because it ignored the inevitable conflation of homosexual relationships and homosexual behavior. By banning one, anti-sodomy laws place an insurmountable burden on the other (ask yourself how marriage would be affected if traditional intercourse were banned). Anti-sodomy laws, they determined, were tantamount to anti-homosexuality laws even if they did not target homosexuals specifically. The issue therefore becomes one of deciding how much right the state has to interfere in the nature of interpersonal relationships, given that these relationships cannot exist without their sexual component. The answer, they decided, was not very much. I happen to agree with them.

Jeremy

[davefoc]

jj comment about intrusion of religion as a basis for overturning victimless crime laws:

An interesting notion, that I hadn't heard before. I doubt that it would pass the legal laugh test though. The constitution prohibits government restriction on religious practice, it doesn't prohibit religiously inspired laws. If it did, all sorts of laws would be up for review and I don't know what the end result would be. That's not to say that we might not be better off though if we got rid of religiously inspired laws. I'd like to keep restrictions on murder, rape and theft pretty much in place as they are now, though, religiously inspired or not.

jj comment on incest
It has been reported many times and I believe it to be true that the risk of birth defects with incest is greatly overstated, although there may be something to the notion that incest repeated for several generations might have the potential to cause significant birth defects. That really side steps the issue, anyway, since incest is illegal even when pregnancy is impossible.

jj on Thomas
I'm not sure why you were startled. It seemed to me that he wanted to make it perfectly clear that he thought the laws in question should be repealed but that he did not feel the constitution justified the use of his authority to affect this change. This seems to be a completely consistent view to me.

jj on underage people
Well, I brought that up, because it seemed like once the Supreme Court moved into the area of enforcing its view of morality all sorts of questions that had previously been assigned absolutely to the states can now be adjudicated. The age of consent is certainly one of them. If a state sets it at 21 and the Supreme Court thinks that's too high, they, with this decision and others, have announced that they will be the final arbiter of what that age should be.

[davefoc]

toddjh question on dave's view of legislative vs. judicial
The judicial branch is constrained to make decisions based on existent laws and the constitution. If it decides to invalidate a law that is otherwise legal, because they don't like it, or think it is not right, or not in the interest of the country or for any other reason it seems to me that it is reasonable to say that they are acting like a legislature in that.

Having said that, I looked at article III of the constitution to see whether there was something in there that so constrained the Supreme Court. I didn't see it. It might be there however because there is an implicit assumption that judges are constrained to make decisions based on the law.

toddjh said:

You left out their main point: that Bowers was deeply flawed because it ignored the inevitable conflation of homosexual relationships and homosexual behavior. By banning one, anti-sodomy laws place an insurmountable burden on the other (ask yourself how marriage would be affected if traditional intercourse were banned). Anti-sodomy laws, they determined, were tantamount to anti-homosexuality laws even if they did not target homosexuals specifically. The issue therefore becomes one of deciding how much right the state has to interfere in the nature of interpersonal relationships, given that these relationships cannot exist without their sexual component. The answer, they decided, was not very much. I happen to agree with them.


I did actually have this point in my original outline and left it out by mistake . I think you are right. This was not only the best point the Supreme Court majority made, it was to me, the only relevant one. Scalia argues against this position in his dissent, but I don't find his arguments compelling. I think you have changed my mind and I don't have the necessary enthusiasm to put forth an opposing view.

[NoZed Avenger]

Originally posted by davefoc
I did actually have this point in my original outline and left it out by mistake . I think you are right. This was not only the best point the Supreme Court majority made, it was to me, the only relevant one. Scalia argues against this position in his dissent, but I don't find his arguments compelling. I think you have changed my mind and I don't have the necessary enthusiasm to put forth an opposing view.

I think this application is the key, as well. The Equal Protection argument, in this context, is a strong point and is based directly on the text of the Constitution. It seems the best support. I wish they hadn't mucked about in some of the other areas, actually, as it wasn't necessary for the decision and will spawn a fair amount of litigation/controversy that they'll have to revisit in 6-7 years. However, they're all smarter than me, so . . . .

NA

[davefoc]

One interesting aspect of the majority opinion is that it seems to have made an equal protection argument without invoking the equal protection clause as O'Connor did.

The court said:
Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

The court didn't address the issue of whether anti-sodomy laws that only apply to homosexuals are in violation of the equal protection clause. O'Connor did in her opinion. Interestingly, the majority opinion was in some ways a more expansive view in that it overturns all anti-sodomy laws, not just those limited to homosexuals. But at the same time it is a less expansive view than O'Connor's in that the legal theory does not necessarily lead to the overturning of laws against same sex marriage.

note to toddjh:
No place in the majority decision did I find such a well written description of the main argument for their position as in your post that I quoted. No doubt, the substance of your post is in the majority opinion, but it is not nearly as clearly or persuasively written, IMHO. Well done.

[Fade]

I didn't read through this thread, but my thoughts:

I believe the Supreme Court was entirely justified in their decision.

One of the best things about the US, in theory, is that it is set upon a system of balances. The problem with a legislature (state or federal) being the sole body to make laws, is that it will play to the populace. I don't -ever- delude myself into thinking that almost any politician will change his or her opinions at the drop of the hat if it would assure them re-election.

So, our legislature has made mind numbingly awful laws that the public wants.

Well, the public opinion is rather worthless when it comes to making and enforcing laws. The reason is very simple; the system would very quickly collapse into one group finding numerical superiority and suppressing all the others. They would then find ways to keep their opposition from voting, so that THEIR system would remain in tact an unchallenged.

This is an historical fact.

So, our Supreme Court has an ability to sweep in and say "NO."

When questioning whether their decision is within the realm of the constitution, you really do little justice to the nature of the court. The letter of the law will never, ever be good enough to cover every case. There are some things which are just wrong, but aren't spoken of anywhere. Theoretically, whatever power the federal government doesn't have is left up to each state.

The problem, again, is that conservatives fallaciously thing this means a given state can do whatever it wants without one of the other parts of the government applying a check. This was obviously the case with the anti-sodomy laws. They were created, initially (in most states) to catch the molestors. There were times when age of consent was much, much lower. So, to keep 40 year old Joe from molesting 14 year old James, anti-Sodomy laws were inacted.

The Supreme Court did, however, shoot down two entirely different types of laws. The ones in Texas had 0 legal merit, and it was just a matter of time before they were shot down. They were very obviously bigoted laws. They applied only to homosexuals. Sandra Day O'Connor (I believe) Dissented on the grounds that Equal Protection wasn't a matter in some of the states sodomy laws. They applied to everyone.


Anyway, I fail to see the logic the other side is espousing. Our system really needs to clean itself up, and this is perhaps the first step. The state does not have the right to oppress you without very justified reasons (public safety, mainly) and the type of sex acts consenting adults perform in the privacy of their homes is far outside the realm of state rights to dictate.

Perhaps the constitution doesn't specifically give anyone the right to shoot down these laws. But, that's why common sense law makes, well, sense.

As an aside, I see it as only a matter of time between anti-drug legislation is repealed on the grounds drugs being, in and of themselves, not a matter of public saftey at all.

[Fade]

Read the thread over now.


I am wondering exactly what rights a state DOES have, in their abilities to make policies concerning it's citizens. Surely it doesn't have the right to do anything, and surely any given law must have a clear, definable, secular purpose.

What clear, definable, secular purpose does forbidding gay men anal intercourse have?

[jj]

Originally posted by davefoc
jj comment about intrusion of religion as a basis for overturning victimless crime laws:

An interesting notion, that I hadn't heard before. I doubt that it would pass the legal laugh test though. The constitution prohibits government restriction on religious practice, it doesn't prohibit religiously inspired laws. If it did, all sorts of laws would be up for review and I don't know what the end result would be. That's not to say that we might not be better off though if we got rid of religiously inspired laws. I'd like to keep restrictions on murder, rape and theft pretty much in place as they are now, though, religiously inspired or not.


Murder, rape and theft aren't victimless, are they? Is there a reason you brought them up in the context of victimless crimes?

Simply put, quite a few laws we have, laws that intrude on individuals, are sourced by purely "moral" issues that come straight from the Victorian and Puritan way of thinking. (No, I'm not equating Victoria and the Puritans, that's a different problem.)

Those laws are, for the most part, based purely on religion, and on religious laws that seek to ensure the maximum growth of the religious population as fast as possible.

Now, "religiously inspired laws" ARE absolutely banned IFF they create a situation where RELIGIOUS BELIEF, such, say, as the sinning nature of enjoying sex, is forced upon unbelievers. This does not mean that people's behavior is unconstrained, in fact, I suspect that freeing the law from the ridiculous biblical strictures of women-as-property would DECREASE the total victimization.

Yes, we have a long way to go, and no, I'm not calling for a 'free-for-all.

So, in summary: Why are murder, rape and theft discussed here? They are not victimless crimes by anyone's imagination.

Why did you even bother to mention them?

Please don't start about how bigamy is related, bigamy and the like kind of crime do have victims, at least in most of the cases, and that's not germane here, either.

So, what's your point here?

[davefoc]

Ugh, jj, sorry, I surrender, I was just making a stupid joke. I had no point, really.

[davefoc]

Jade said:I am wondering exactly what rights a state DOES have, in their abilities to make policies concerning it's citizens. Surely it doesn't have the right to do anything, and surely any given law must have a clear, definable, secular purpose.

I think your question is, in light of this decision, what policies are the states able to make concerning their citizens.

I believe there were two aspects of the decision.
1. The 14th amendment due process requirment not only requires fair trials but it says you basically can't have a fair trial if you are being tried for something that is in conflict with your basic liberties.
2. Because of the nature of homosexual sex and the intrinsic requirement of sex in human relationships anti-sodomy laws are anti-homsexual laws and therefore are a basic liberty which because of the due-process requirement of the fourteenth amendment can not be prosecuted.

The most narrow reading of the decision is that the only difference in what states can do before and after the decision is that they can't make anti-sodomy laws that apply to homosexuals. The most narrow reading of the decision could be interpreted to mean that anti-sodomy laws directed at heterosexuals are ok.

However there is a statement at the end of the majority opinion that suggests that as time goes on more laws against personal freedom will be overturned by the court when it said:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

This seems like both an argument for and against the decision to me. This suggests that the court sees part of its job as gradually defining new rights for individuals over time. This puts a lot of arbitrary power in the hands of a few people and even civil libertarians might not like every new right that the court decides to define.

[Ricomise]

I agree that the majority opinion in this could have been clearer regarding the tenets of law utilized to reach the decision. (In fact, I wish it had been much clearer.)

I believe that the reasons it is not are not entirely unintentional.

First, when you see justices using "historical interpretation" and "legislative intent" in opinions it usually means one of two things. One is that it is a case of "first impression." This case is not. The other is that the justices are wary of extending the reach of the holding of the case too far. I believe that is the case here. The majority justices, while wanting to overturn Bowers, did not want to necessarily open the door to having to strike down statutes in other related areas. They want to limit the holding as much as possible to the specific facts of this case. (Most likely a compromise during discussion to allow a majority opinion rather than a fractured "plurality" decision.)

Second, Scalia (and make no mistake, it is definately Scalia's dissent, although Thomas and Rhenquist joined it) is partially right. The line of cases that began with Griswold in the area of the "right to privacy" are not grounded specifically in the Due Process Clauses of the Fifth and Fourteenth Amendments. Because the Court could not agree to find a new "fundamental right" to privacy under the prior precedent in the due process area, the privacy right was found to lodge in "penumbras" of amendments such as the ninth. This way, the Court could apply the privacy right on a case-by-case basis instead of applying the well-settled due process or equal protection standards. The majority appears to stay away from this "penumbrial" analysis, as it has been problematic for many people for many years. (Not the least of whom are the law students that have to study it.;) ) In fact, they don't mention the "right to priavacy" at all, if I recall correctly. (Although they imply it several times.)

I wish that the Court could have just gone ahead and found, through its historical and legal analysis, that the Constitution contained a "fundamental right to privacy" as part and parcel of its fundamental "liberty" right. Then all laws which seek to infringe on this right would be subject to "strict scrutiny." (Must have a compelling government interest and be "narrowly tailored.") However, I don't think the Court could reach a consensus on that, so we have the compromise opinion as published.

[blackpriester]

Originally posted by davefoc
Well, there was a resounding lack of interest in this thread.

Maybe people felt it had already been adequately discussed in previous thread or they thought intro was bogus and didn't want to post.

I was hoping we might also get some opinions about whether judicial activism is a good thing. In this case, the thought occurs to me that it may have been a bad thing.

If the justices decide that it is a state issue, then there would have been political pressure brought to bare on Texas to change its law and I think Texas would have eventually done that. The notion of states being able to set laws concerning this kind of thing would have been preserved.

The question is more philosophically (and therefore contrary to your intent in this tread - "discuss this on a PRACTICAL legal level):
"Why SHOULD states have the right to regulate activities between consenting adults and are such laws not inherently contradictory to the US consttution?"
You cango back to the ideas BEHIND the constitution (social contract, J.J. Rosseau, Thomas Hobbes, John Locke etc.) to discuss this in depth. Do you want to?

[davefoc]

Ricomise, thank you for your comment that the majority opinion could have been clearer regarding the tenets of law utilized to reach the decision. I spent considerable time reading and rereading the decsion and never did really get the main point until toddjh explained it to me.

I don't see how by writing their main point somewhat unclearly and then surrounding it with a lot of marginally relevant facts that actually cut both for and against the majority view that the justices limited the extent of their decision.

If there point was in deed how toddjh summarized it then by its very nature the decision was narrow.

toddjh's summary repeated for convenience:
... there most important point that Bowers was deeply flawed because it ignored the inevitable conflation of homosexual relationships and homosexual behavior. By banning one, anti-sodomy laws place an insurmountable burden on the other (ask yourself how marriage would be affected if traditional intercourse were banned). Anti-sodomy laws, they determined, were tantamount to anti-homosexuality laws even if they did not target homosexuals specifically. The issue therefore becomes one of deciding how much right the state has to interfere in the nature of interpersonal relationships, given that these relationships cannot exist without their sexual component. The answer, they decided, was not very much. I happen to agree with them.

IMHO, a well written argument would have worked to justify their use of the due process clause in the 14th amendment and to bolster the assumptions that were part of their main argument. I don't know why they didn't do that except that maybe the text of the decision is the kind of gobbledygook that is produced when your goal is to get a little piece of what everybody said into the decision rather than to write clearly and concisely. This is probably why the dissents were so much easier to read. They were written to argue for a view and not to randomly piece together contributions from several different writers.

You mentioned "fundamental rights". One of the things that Scalia said was that the majority had stayed away from finding that there was a findamental right involved here. I am still unclear on why this was an issue. It seems in essence that the court did find that sodomy by homosexuals was a fundamental right, but they called it a "liberty". What's the difference?

[davefoc]

blackpriester,
There are several philosophical issues that are associated with this issue that I have mused about for years and would enjoy an opportunity to see discussion of them.

Studying this decision has given me much more insight into how the constitution can be interpreted to give the Supreme Court broad powers to establish individual rights. Is that a good thing? Clearly the power is severely limited by political considerations. Is that a good thing?

You seem to have a historical perspective on all of this and a knowledge of some of the people whose views shaped some of the libertarian notions embedded in the constitution. This sounds interesting to me.