never been there

But even with the Constitution at play the court ought to be considering Justice. Isn't that how you address them?

Jayjay

I'm somewhat confused as to what the verdict really was... are the Texas sodomy laws unconstitutional because they discriminate based on sexual orientation, or because they violate people's privacy, or both? Are sodomy laws that apply equally to heterosexuals still okay?

Stephen Maturin

Of the six justices who voted to find the statute unconstitutional, five of them (a clear majority of the Court) opted for the broader substantive due process/privacy rationale. From the majority opinion:

Justice O'Connor agreed that the law was unconstitutional, but would have gotten there using the narrower equal protection rationale.

Those laws are dead, too. Take Alabama's "deviant sexual intercourse" statute, for example. As this article describes it, the Alabama law prohibits oral or anal sex between unmarried persons, homosexual and heterosexual alike. Even Bill Pryor, Alabama's religious nutburger of an Attorney General and a nominee to the Eleventh Circuit Court of Appeals, admits in the article that Lawrence renders the Alabama statute unenforceable.

Toto

The court based its decision on the "liberty interests" protected by "due process", which is how the Supreme Court has protected privacy when it decides to protect privacy.

From the decision:

O'Connor concurred, but based her opinion on Equal Protection.

The distinction of course, is that a "liberty" interest in the privacy of your bedroom cannot be easily extended to a right to have a marriage certificate. If a law criminalizing sex between homosexuals can be struck down on equal protection grounds, the next logical step is to require equal rights to marriage.

Toto

Ha - O'Connor said


What does that say about Alabama??

Bill Snedden

I'm not so sure.

It's indeed one thing to argue that the Ninth Amendment covers a "right to privacy" and that the Fifth guarantees that such a right cannot be abridged without substantive due process. It's another thing entirely to argue that the "right to privacy" includes marriage, which, it seems to me, is a public act. Not to mention that it can still be argued that the State may be seen to have certain legitimate reasons for restricting or regulating the circumstances of legal marriage.

While it certainly does provide some additional support to argue that the State has no such legitimate rights, it's far from "the next logical step."

That said, it reminded me of a line from Scalia's dissent:

Scalia is holding forth on his objection to the decision to overrule Bowers (which was part of the Lawrence decision), but even a cursory reading of the paragraph above should be sufficient to reveal that he makes what seems to me as the same error.

While he is correct in noting that laws are based on morals, he is certainly incorrect in arguing that it is impossible to distinguish "...homosexuality from other traditional 'morals' offenses..." Indeed, there are many "morals" offenses that have been criminalized over the years and that are now no longer such. Why should homosexuality be any different? Over time our understanding of human behavior changes. To suggest that the law should not change as well is simply foolish.

Essentially, Scalia assumes without argument that homosexuality is identical to "...bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity..." and that because he can't see any relevant differences that no one else should. And then criticizes the majority for not agreeing with his mediaeval outlook...

Regards,

Bill Snedden

dangin

So when Renquist retires, is there any chance Bush will appoint Bill? What say Bill, how would you do at the confirmation hearings?

Bill Snedden

Yeah, I'd say there's a chance.....a snowball's chance in hell!

It's kind of ironic; I actually consider myself a constructionist, like Scalia (only, a "loose" one, rather than a "strict" one, like Scalia). Only I try to look at the intent of the Founders in creating the constitution itself. IMO, Scalia (and Rehnquist, and Thomas, et al) err when they attempt to interpret what the Founders intended by a particular statement rather than trying to look at the bigger picture of the relationship between the government and the governed that the Founders intended to create...

I don't think I'd do well at all at confirmation hearings...I don't suffer fools very gladly at all...

Regards,

Bill Snedden

Jewel

From the twisted mind of Pat Buchanan

Full story here

I think I have to go shower after reading that steaming pile of garbage.

Toto

The Supreme Court's actions in this case have inspired Pat Roberton to lauch Operation Supreme Court Freedom. Luckily for us, ol' Pat is relying on prayer and fasting to ask for God's intervention, to convince the liberals on the Supreme Court to retire and make way for more Scalia clones.

You can Pledge to Pray here, and order Pat's age-defying protein pancakes as a bonus!