Lawrence v. Texas sodomy decision

[avram]

I’ve just dowloaded the Supreme Court’s decision (authored by Justice Anthony Kennedy) in Lawrence v. Texas and read it. Here’s a quick summary:

• Remember Bowers v. Hardwick, the 1986 case in which the Supreme Court upheld a Georgia anti-sodomy law? Forget about it; those guys were on crack.
• We could overturn Bowers on Equal Protection grounds, but that might imply that anti-sodomy laws might stand if worded differently, so we’re going with a Due Process argument. Bowers is toast, and charred carbonized toast at that.
• This ruling here is not about, and does not legalize:
  • Underage sex
  • Coerced sex
  • Gay marriage
  • Prostitution
  • Public sex acts
• Pretty argument in support of what the right calls “judicial activism”:

  Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. 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.

O’Connor’s concurrence:

• Yes, Lawrence v. Texas should be overturned, on Equal Protection grounds — that it’s unconstitutional to have a law that just forbids sodomy between same-sex couples, as the Texas law did.
• But Bowers is still OK, because it banned sodomy for everyone. That’s constitutional, but “such a law would not long stand in our democratic society”. (And she may be right — Georgia’s state supreme court eventually overturned that law.)

Scalia’s dissent:

• The justices in the majority are a bunch of liberal judicial activists, inventing new constitutional rights out of whole cloth.
• And they don’t know what “due process of law” means.
• Many of the arguments used today for overturning Bowers could also be used to overturn Roe v. Wade, so watch it.
• Discrimination against homosexuals isn’t equivalent to discrimination against blacks, because anti-miscegenation laws (invalidated in Loving v. Virginia, 1967) enforce white supremacy, while anti-gay laws, um, er, hey, we’re banning same-sex sodomy for everyone, not just gays, so it’s not discriminatory!
• The majority is also wrong when it says states have no legitimate rational interest in controlling their citizens’ sex lives. The mere fact that a majority (or perhaps even a powerful minority) considers a particular act yucky is itself a legitimate interest. This decision will make it harder for to make life difficult for gay people. We won’t be able to fire them at will, or evict them from their homes, or ban their yucky behavior.
• Um, not that I have anything against gay people. Honest.

Thomas’s dissent:

• Mumble mumble mumble.