The Court has clearly lost its mind this week.
Or perhaps it found it again.
Tyron Garner (left) and John Lawrence
(Photo Credit: REUTERS/Richard Carson)
Case 1: Lawrence v. Texas (short title)
Court overturns Texas sodomy law (MSNBC, Thursday, June 26, 2003): In a major victory for gay rights advocates, the U.S. Supreme Court on Thursday struck down a Texas statute that bans gay couples — but not heterosexuals — from engaging in sodomy, ruling that the law was an unconstitutional violation of privacy. THE 6-3 RULING reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. The case is a major re-examination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state’s ability to makes crimes of what goes on behind the closed bedroom doors of consenting adults.
I'm ... stunned, frankly. I wasn't at all sure which way this case would go. Even assuming that the court had decided to overturn the Texas law -- which seemed indicated by the fact that they took this case at all -- it was far more likely that they would overturn it on the more specific grounds of equal protection violations rather than due process violations, which produce a much broader result.
JOHN GEDDES LAWRENCE AND TYRON GARNER, PETITIONERS v. TEXAS (PDF file at scotus.ap.org; web version at Findlaw): Justice Kennedy delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. [...] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
"1. Whether Petitioners’ criminal convictions under the Texas "Homosexual Conduct" law--which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples--violate the Fourteenth Amendment guarantee of equal protection of laws?
"2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?
"3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?” Pet. for Cert. i.
..... We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. [...] At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. [...] It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. [...] Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
.... The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
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.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
It's interesting that elsewhere in his opinion, Kennedy notes, "... we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." It's very clear that he intends for this decision to cover not only laws aimed at homosexual consensual private conduct, but any private consensual sexual conduct. It's also interesting that he specifically and separately points out the national and international precedents that have specifically declined to follow the course of the original Bowers v. Hardwick decision. One might think that they were perhaps laying the ground for someone to challenge a law on eighth amendment grounds -- cruel and unusual punishment -- which is the type of case that specifically takes note of similar decisions as precedent (vide Atkins).
It's also interesting to note that this is a very broad decision indeed. Nothing seems to have been distinguished. Just to pull something from the air ... the ability of the government to make separate conduct rules for the military is nowhere mentioned. To be sure, it was not directly at issue for this case. Nonetheless, someone with a sexual conduct discharge in process will almost certainly now bring suit to retain their position, under these very grounds.
Scalia in his dissent (PDF file at scotus.ap.org) objects to many things in this decision. He dislikes that the Court did not "declare that sodomy is a 'fundamental right' under the Due Process clause", but it did not need to; the Court declared that private consensual sexual conduct is a fundamental right under the Due Process Clause, whether homosexual or heterosexual. He objects that the Court should not have been so ready to overrule Bowers, which is but 17 years old. He manages to get snarky about Roe v Wade, which is used as partial support for the Court's decision. He gets truly remarkably arch when he notes, "I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage." (Well, either he's being arch, or there's a great wide world out there that he somehow managed to miss hearing about entirely.) Nonetheless, despite some rather epic fulmination of a sort that you really don't expect to see in a judicial opinion, he does make some rather interesting points.
To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. [...] The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p.A25. At the end of its opinion--after having laid waste the
foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
You know what? He's exactly right on that count. If the due process clause requires all laws that distinguish between consensual homosexual and heterosexual conduct to fall, because the distinction itself is a violation of due process, then there is no rational ground for upholding any of the Defense of Marriage Acts. Neither logic nor the plain language of the majority opinion itself would allow that distinction. It's worth noting that the majority decision itself only notes, The present case ... does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In other words, although this decision may lay the groundwork for future challenges to defense of marriage acts, this decision says nothing directly about them. (Except, you know, that it kind of does, really.)
I note, purely for completion's sake, that I find the language of Thomas' dissent ... surprising, really. He actually calls the law under discussion "uncommonly silly" (or rather, quotes the Griswold v Connecticut decision to do so).
There will be some interesting results from this decision, although perhaps not immediate:
1) Varied and many challenges to the various state and the federal defense of marriage acts; this decision may also put some teeth into the various Full Faith and Credit clause challenges that will be made by all those people who have been trooping into Windsor, Ontario, to get married (I wonder if they realize that getting divorced is a rather more difficult thing in Canada);
2) Challenges by servicemembers to "don't ask, don't tell (except that we don't really mean that)" discharges
3) Perhaps a few challenges to heterosexual sodomy laws, just to make the Court get all nice and explicit about what it meant (although, with a bit of luck, none of the heterosexual sodomy challenges would actually get that far -- in any event, I'd think that it would be very difficult indeed to find someone with standing these days)
4) The Federal Marriage Amendment process will kick into high gear because, as noted, the decision really would seem to allow homosexual marriage, if taken to its logical conclusion. And, assuming no defects in the ratification process, if it passed (and I suspect it would, although I'm not absolutely certain), there would be nothing the Court could do about it.
Purely a side note: since Kansas' same-sex-only sodomy law is now invalid (one would assume, in any event), one would also expect a challenge to the differential punishment for heterosexual and homosexual statutory rape, as mentioned in a previous entry. The specific precedent for that law has been now overturned, and due process would seem to indicate tha the state may no longer treat what is essentially the same crime differently due to the gender of the participants.
(Interesting sidenote: Findlaw released an article -- today, if you will -- predicting that the court would strike down the sodomy laws under the equal protection clause, and fretting that the court's equal protection reasoning seems to be falling down on the job these days. He was correct that the Court would use the "rational basis" test, but wrong about how they would apply it ... probably for the very reasons he identifies. Clearly, the Court absolutely positively did NOT want to identify homosexuals as a "discrete and insular minority" ... partly because, in many ways, they're not. You can have homosexuals in any racial group, any ethnic group, men or women. The Court would prefer its discrete and insular minorities to be visibly identifiable, when possible. (Religious discrimination is a somewhat different issue ... although peculiarly similar to homosexuality, in that most people may be of any religion or sexuality, but have no visible sign of either.) (I bet I get hate mail over that one.) The Court has tried, with indifferent logic and spectacular effort, to keep from equating homosexuals with any of its previously identified discrete minorities. Assuming that this decision survives -- and Congress would have a difficult time overruling it in any way that would stick, aside from an actual Constitutional amendment -- they may have found a way to keep from having to do so.
Until the next discrimination case comes around, of course.
In the meantime ... Party Tonight! Pretty much everywhere in the country, it seems. And this weekend's Gay Pride celebrations will be especially gay (in every sense of the word).
Case 2: The Court also reversed and remanded an "ineffective counsel" challenge (PDF) from Maryland. Rather surprising, that, especially the 7-2 vote. This court has not been much given to allowing that type of argument, unless the conduct was especially egregious (vide Texas -- yes, AGAIN -- and its problem with sleeping lawyers).
Case 3:
Supreme Court kills law that revives old sex crime prosecutions: The Supreme Court ruled Thursday that the government cannot retroactively erase statutes of limitations, a defeat for prosecutors trying to pursue priests accused of long-ago sex abuse.
On a 5-4 vote, the justices struck down a California law that allowed prosecutions for old sex crimes. It was challenged by a 72-year-old man accused of molesting his daughters when they were children. The case was closely watched because of sex abuse problems in the Roman Catholic church, but it also has implications for terrorism and other crimes. Justice Stephen Breyer, writing for the court, said the Constitution bars states from revising already expired legal deadlines. [...] The Bush administration had argued that a ruling against California would threaten the USA Patriot Act, which retroactively withdrew statutes of limitations in terrorism cases involving hijackings, kidnappings, bombings and biological weapons.
Hmm. Imagine that. A ruling that may actually kick some of the underpinnings out from under the PATRIOT Act. Well, that can't be a bad thing, now can it?
Posted by iain at June 26, 2003 11:04 AMComments
