{"id":3397,"date":"2002-12-03T06:38:16","date_gmt":"2002-12-03T11:38:16","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/wp\/?p=3397"},"modified":"2002-12-03T06:38:16","modified_gmt":"2002-12-03T11:38:16","slug":"prying_eyes","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2002\/12\/03\/prying_eyes.html","title":{"rendered":"Prying eyes"},"content":{"rendered":"

The US Supreme Court has agreed to review <\/a>its 1986 decision (Bowers v. Hardwick<\/i>, 478 US 186) that upheld the right of states to pass laws against homosexual acts, generally classified as oral or anal sex.<\/p>\n

Bully for them.<\/p>\n

I really scratch my head over this sort of law, in the face of the Fourteenth Amendment diktat <\/i>for Equal Protection under the law (not to mention more nebulous privacy rights). It seems to me, to support such laws, you have to take one of the following positions:<\/p>\n

1. These laws treat everyone equally<\/i>. The problem is, they don’t, either on the face of it (laws in states that specify same-sex acts), or in practice (laws in states that outlaw anal or oral sex, but, when actually enforced, are only enforced on homosexuals). The assertion that laws in states that make illegal same-sex acts provide Equal Protection” because they apply to homosexuals, bisexuals, and heterosexuals who might think about “experimenting” doesn’t pass the horse laugh test.<\/p>\n

2. There is a qualitative difference <\/i>in oral or anal sex depending on the genders of one or another (or both) of the individuals involved. In other words, Equal Protection doesn’t apply because these are not equal cases. This point has at least some ground for argument, since I can think of at least one other significant instance in US law where qualities of the participants in a sex act are considered in its legality: age. <\/p>\n

But that quality is not a relatively arbitrary one, but is founded in a body of law regarding consent and minors. There is no question in this case, or in these laws, of consent, or of the ability of the participants to consent. <\/p>\n

Further, if you can argue that there is some societally-significant quality (other than aesthetics) that makes oral sex on a women legally different depending on whether it’s a man or a woman on the giving end, then you can also make the same argument about the race of the participants, or the nationality, or the religion, or the social class. Such arguments have been made in the past, but are generally considered abhorrent by the majority of citizens in the nation at this time. I think the principle applies here, too.<\/p>\n

Ah, but what about morality? The DA in the Texas case, defending their law, says, “Morality is a fluid concept and public opinion regarding moral issues may change over time, but what has not changed is the understanding that government may require adherence to certain widely accepted moral standards and sanction deviations from those standards.” <\/p>\n

Actually, arguing the constitutionality of a law on just moral principles is (and should be) a difficult line to take. That’s because, as the DA notes, it’s a fluid concept, and tends to run into First Amendment barriers as well, which is why the law is more often based on questions of preventing\/punishing objective harm, or, slightly more nebulously, the related cause of preserving public order. If we’re talking about consensual acts conducted in private, neither fears of objective harm nor public disorder seem to pertain. <\/p>\n

Given the Court’s recent history on privacy cases, and its willingness to rehear its 86 decision, I’ve got a moderate level of confidence that the Texas law (et al.) will be struck down. Most people I know, even those who have moral qualms about homosexuality, tend to take the line of the British actress, Mrs. Patrick Campbell, who said, “My dear, I don’t care what<\/i> they do, so long as they don’t do it in the street and scare the horses.” I think the Supremes will agree.<\/p>\n

UPDATE<\/u>: Via FindLaw, the request to the Supremes to hear the case and overturn the conviction can be found here<\/a>. The argument against can be found here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The US Supreme Court has agreed to review its 1986 decision (Bowers v. 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Texas yesterday. The original case had the sheriffs going into an apartment (on a bogus claim by a neighbor that someone...","rel":"","context":"In "Politics & Law"","block_context":{"text":"Politics & Law","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5360,"url":"https:\/\/hill-kleerup.org\/blog\/2004\/04\/01\/failure_to_comm.html","url_meta":{"origin":3397,"position":1},"title":"Failure to communicate","author":"***Dave","date":"Thu 1-Apr-04 6:45am","format":false,"excerpt":"Word just in that the Old South continues to function like ... well, the Old South, as a woman faces a \"crime against nature\" felony for receiving oral sex. A...","rel":"","context":"In "LGBTQ &c"","block_context":{"text":"LGBTQ &c","link":"https:\/\/hill-kleerup.org\/blog\/category\/gay-stuff"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":131529,"url":"https:\/\/hill-kleerup.org\/blog\/2016\/09\/13\/marriage-in-name-only.html","url_meta":{"origin":3397,"position":2},"title":"Marriage in Name Only","author":"***Dave","date":"Tue 13-Sep-16 10:44pm","format":false,"excerpt":"After the Supreme Court ruled in Obergefell that blocking gay couples from marrying was unconstitutional, the initial reaction from lawmakers in conservatives states was defiance. 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