The Supremes yesterday heard the case of Lawrence v. Texas yesterday. The original case had the sheriffs going into an apartment (on a bogus claim by a neighbor that someone was “going crazy” with a gun), finding two men there having consensual sexual activity, and arresting them under Texas law. The law in question forbids “deviant sexual behavior,” specifically oral or anal sex between two people of the same gender.
The appeal of the case is based on two basic principles:
- What consenting adults do behind closed doors is none of the state’s business. (This is an argument to the implied right of privacy in the 14th Amendment, which has been used in support of abortion and contraception decisions by the Supremes in the past.)
- Sauce for the goose is sauce for the gander. If oral and anal sex are to be illegal, then they’d better be illegal for everyone, not just for gays. (This is an appeal to the Equal Protection Under the Law clause of the 14th Amendment.)
The Supremes, in 1986, said that anti-sodomy laws were the province of the states, and refused to overturn one in Georgia. Since then, though, most states have done away with them, which is often an influence on the Supremes in judging these sorts of cases. And even in the Georgia case, the law in question (regardless of how applied) forbade those acts to all people, so that there was a much weaker Equal Protection argument.
This Slate article has a good summary of the oral arguments in the case (even if the writer is a bit too in love with her own prose and position). The interplay between the justices is interesting.
Frankly, I agree with the parties making the appeal here, on both grounds. This sort of law is long past its cultural time, and is hardly even defensible on those grounds. Without some compelling harm to point out, the state of Texas has no business with what folks do in the bedroom. Their appeal to local morality is hardly compelling, either in and of itself, or as argued.
(via InstaPundit)
A bit more legal a view (and incredibly nice dissection of the Texas position) can be found here.
If I understood the gist of the State’s argument — not an easy thing to understand given the incoherence of the presentation — it is that Texas is OK with heterosexual sodomy because it might lead to marriage and procreation; it is OK with heterosexual sodomy among infertile couples for no reason in particular; it is OK with both heterosexual and homosexual bestiality for no reason in particular; it is OK with a homosexual who is living with (though perhaps not having sex with) a same-sex partner adopting children; it has just passed a hate-crime law that covers crimes committed because of sexual orientation; and it generally has no objection to homosexuals who do not have certain types of sex (but who can apparently engage in some limited forms of sexual activity that I leave it up to the indelicate to parse out and articulate).
So, to summarize: We don’t mind “deviate” sex acts so long as it is between heterosexual or interspecies couples, and we don’t mind homosexuals so long as they do not engage in deviate sex acts. Let’s just say the two ends of the rope are a bit off.
At least Justice Scalia is consistent in his moral arguments — his moral objection is to homosexuality, period. That objection may be unconstitutional for a variety of reasons, but at least it has internal consistency. Texas is unwilling to go that far, and the incoherence showed in the argument.
I heard Nina Totenberg’s description of yesterday’s events on NPR last night. I just *love* her recaps.
I’m very interested in hearing the outcome of this case. Thanks for the links!
I heard the NPR piece yesterday, too, and enjoyed it.
Could you summarize Ms. Totenberg’s report?
It’s probably still out on the NPR site somewhere. She delved a lot into the discussions between the different justices. I thought she did a decent job, if still making it clear whose side she was on in the case.