or Connect
Mothering › Mothering Forums › Archives › Miscellaneous › Activism Archives › court strikes down sodomy law!
New Posts  All Forums:Forum Nav:

court strikes down sodomy law!

post #1 of 22
Thread Starter 
http://www.cnn.com/2003/LAW/06/26/sc...omy/index.html


Quote:
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, according to a report from The Associated Press.
post #2 of 22
It's about time it was overturned IMO.
post #3 of 22
From the Court's summary of the decision:

Quote:
Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life.
http://caselaw.lp.findlaw.com/script...friend=nytimes

"Bowers" is Bowers v. Hardwick, a 1986 case in which the Supreme Court refused to strike down as unconstitutional a Georgia law criminalizing sodomy between consenting, adult partners.

Really, I should think that conservatives who want the government out of people's private lives should be thrilled by the Court's decision. Reactions to cases such as this are fascinating, in that they frequently reveal a double-standard between conservatives' rhetoric and practice.
post #4 of 22
Thread Starter 
Quote:
Originally posted by Marlena

Really, I should think that conservatives who want the government out of people's private lives should be thrilled by the Court's decision. Reactions to cases such as this are fascinating, in that they frequently reveal a double-standard between conservatives' rhetoric and practice.
I was thinking the same thing. It will be interesting to hear what people have to say.

I just can't believe it's taken so long to get to this point. But then again women have only had the right to vote for 80plus years.
post #5 of 22


The irony regularly floors me ... folks who want the government out of their private lives, are seemingly perfectly satisfied to have the government in their most private places ... the bedroom and their gynocologist's office.

post #6 of 22
Totally and completely T

Amy, you changed your name.

I saw 'merpk' on the list of posters and thought "Oh, Amy's dh must be posting"

~Deirdre
post #7 of 22
Quote:
I saw 'merpk' on the list of posters and thought "Oh, Amy's dh must me posting"
Yeah me too!

I am glad to see it's overturned but have a hard time understanding the dissenting side from the 3 justices Scalia, Kennedy & Thomas. Maybe Marlena can enlighten us.
post #8 of 22
Actually, Justice Anthony Kennedy wrote the majoirty opinion:
http://caselaw.lp.findlaw.com/script...0&invol=02-102

Justice O'Connor wrote a concurence:
http://caselaw.lp.findlaw.com/script...2#concurrence1

Justice Scalia, with whom Chief Justice Renquest and Justice Thomas join, wrote the main dissenting opinion:
http://caselaw.lp.findlaw.com/script...2-102#dissent1

Thomas also wrote a dissenting opinion:
http://caselaw.lp.findlaw.com/script...2-102#dissent2
post #9 of 22
I think this sums up the opposing position, taken from:

http://story.news.yahoo.com/news?tmp...otus_sodomy_20

Thomas wrote separately to say that while he considered the Texas law at issue "uncommonly silly," he could not agree to strike it down because he found no general right to privacy in the Constitution.

Thomas calls himself a strict adherent to the actual words of the Constitution as opposed to modern-day interpretations. If he were a Texas legislator and not a judge, Thomas said, he would vote to repeal the law.

"Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources," he wrote.

HTH

Wendy
post #10 of 22
This is totally off the cuff, but here goes: Scalia appears to have made two primary points: (1) the principle of stare decisis, or respecting rulings made in the past and overturning them only after careful consideration and when genuinely warranted due to some significant change, was offended in overturning Bowers v. Hardwick, which was decided "a mere 17 years ago."

Scalia really got his knickers in a twist about this - check it out (and this is just one of many possible examples):

Quote:
I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

" Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,' " Casey, supra, at 855.

Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 15; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 16. The problem is that Roe itself--which today's majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as Bowers.
He indignantly goes on at some length following the preceding quote further drawing alleged connections between the status of Bowers, as he claims it was described by the majority, and the status of Roe v. Wade.

And he concludes that section:
Quote:
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.
Take that!

Scalia's multiple invocations of Roe v. Wade indicate, to me, that he may fear that Lawrence may bolster defenses against overturning a woman's right to an abortion. Alternatively - or perhaps additionally - he's hoping that his dissent will eventually provide a framework for overturning Roe (what remains of it, that is).

Scalia also believes the Court wrongly decided that the TX law in question constituted an unconstitutional proscription on individual liberties. He wrote:

Quote:
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 13 (" ' These matters ... are central to the liberty protected by the Fourteenth Amendment' "); ante, at 17 ("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 Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:

"No state shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).
***
Quote:
having failed to establish that the right to homosexual sodomy is " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 18.
He believes that the Court's holding that "the Texas statute ... furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" effectively strikes down any attempt at legislating morality, and as such is absolutely contrary to a time-honored tradition of jurisprudence in this country (and elsewhere). He claims it'll undermine any attempt to legislate against, say, heroin use, prostitution and the like (a bogus claim, for the most part), as it effectively eliminated a state's ability to legislate morality in criminalizing victimless acts such as sex between consenting partners, smoking pot and the like without violating the Constitution in doing so.

Gotta go again. SummerLover, you must have some thoughts on all this - have you had much chance to read the opinion, concurrence and dissents? I've been working on something else all day and haven't had a chance to do any reasonable sort of analysis.
post #11 of 22
"Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources," he wrote.


ITA! I think this is an issue that should never have been law in the first place, 2 consenting adults can do as they please in their bedrooms, without interference from the government.
post #12 of 22
Even more T ...

Changed my name because ... ... I made the huge mistake of making my user name one that was apparently, well, trackable.



I'm thoroughly weirded out, so figured changing the user name was the first step. And the new one is not so far off, just a little more "me-centric."






And on-topic, it is fascinating how this known-as-conservative court is making these seen-as-liberal decisions ...
post #13 of 22
Quote:
it is fascinating how this known-as-conservative court is making these seen-as-liberal decisions ...
Exactly what I was going to say!
post #14 of 22
Ah, but again, this OUGHT to be what many conservatives think is right. Ought not, according to many conservatives, the government butt out of our lives? What right should the government have to legislate how we raise and school our children and otherwise go about our lives? None at all, according to most conservatives of whose views on the matter I'm aware. At the same time, though, they often think it's fine to enact "morality" laws barring certain conduct they find "immoral." As long as it doesn't apply to them, that double standard is fine, I suppose. :
post #15 of 22
Alan Keyes. He's about as conservative as they come and he also feels that laws such as these should not be made, and I am pretty conservative myself and also agree that there is no place for laws like this, so let's not assume most conservatives want these laws.
post #16 of 22
How many self-described conservatives are there in the U.S.? You've just identified two individuals who are self-described conservatives and who are not in favor of sodomy laws. Understand that two people out of millions is statistically insignificant. I will agree with you that there must be more. Justice Kennedy himself mentioned, for example, Richard Posner. That makes three. Once more than 50% (by extrapolation through a poll, for example) of the millions of self-identified conservatives in this country come out against sodomy laws and other laws criminalizing "victimless" acts, then I'll stand down from my statement.
post #17 of 22
Marlena, I was not intending to make you feel attacked or something, I just think there are more than you may realize, that's all I'm getting at. I realize that 3 of us, won't convince you, it's just in my experience, where most of my family is conservative and I read and listen to a lot of conservatives, most I know/know of are against these laws.

Anyway, I posted here to agree, not to argue, so off I go. It seems like even when I agree, or other conservatives do, it won't be enough.
post #18 of 22
Another conservative piping up to say I agree with SCOTUS's decision. In this case the fundamental right to privacy superceded the state's claim. (And I am a big proponent of states rights with limited federal oversight.)

I think you'd also see that if this had actually be put to a 'vote' among the people of Texas, the ban would probably have been voted down. It's outdated, and the lege did not want to touch the issue it seems. (I'm not a fan of the lege these days.)
post #19 of 22
I wasn't trying to jump on you, jess7396. Rather, I was trying to point out that merely because one, or some, of some group or other believes that X, it does not therefore ential that [b]most] of that group believe that X. If I'd said that _no_ conservative believes blah blah blah, then your point would have been well-taken.

ITA, Delta, re the TX legislature. At least their attempt to prohibit gays and lesbians from adopting children didn't pass this session (though they did again try).
post #20 of 22
I'm a lawyer too (although I haven't practiced in YEARS). I haven't had a chance to read the whole opinion, even though I finally found the Supremes web page.

I did read Scalia's dissent, though. And I think that his legal arguments are very well stated. I don't know what the majority says, though, so I can't say whether their arguments are equally sound.

I do think that you're right, Marlena, in saying that Scalia probably has hopes that this same kind of reasoning could be used to overrule Roe. Or be used to prevent laws which might not be as "disagreeable" to most. I guess I need to read the whole opinion before I make any more comments.

It does make for interesting conversation, though, doesn't it?
New Posts  All Forums:Forum Nav:
  Return Home
  Back to Forum: Activism Archives
Mothering › Mothering Forums › Archives › Miscellaneous › Activism Archives › court strikes down sodomy law!