Supreme Court hears challenge to Texas Sodomy Ban

[Blalron]

WASHINGTON, March 26 (UPI) -- The Supreme Court, in a case that reaches to the core of American values, heard argument Wednesday on whether Texas or any other state can ban private homosexual conduct between consenting adults.

Link

Should Bowers VS Hardwick be reversed?

[Priam]

It should never have happened in the first place. I don't think there's much controversy over that.

[MrVisible]

Yeah, I can't see much to debate here. Should we continue to oppress an entire class of people for no good reason whatsoever? Umm... let me see... how evil are we again? Not that evil. Next!

[photopat]

Damn right it should be reversed. If it's not, I say the Texas courts can shove it up their collective ass.

[Bricker]

No. There is no federal constitutional right to sodomy.

The remedy for such state laws is repeal at the legislature.

[rexnervous]

Originally posted by Bricker
No. There is no federal constitutional right to sodomy.

The remedy for such state laws is repeal at the legislature.

But listening to NPR, the reporter noted that Texas doesn't ban sodomy among consenting heterosexual adults. Only homosexual. So that seems clearly discriminatory, and probably worthy of being reviewed by the SCOTUS.

However - IANA Lawyer, even remotely

[MrVisible]

Bricker, you're right. The consititution doesn't explicitly enumerate a right to anal sex. Can you explain why consensual sex between adults doesn't fall under Amendment IX?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Also, can you go into detail as to why "The remedy for such state laws is repeal at the legislature"? And then explain why this hasn't happened so far? And then tell me why the Supreme Court isn't responsible for making sure that the states treat individuals fairly in their justice systems, in accordance with the Constitution of the United States? Please make sure to look over RICHARD PERRY LOVING et ux., Appellants, v.VIRGINIA, and then tell me whether the Supreme Court was right in their decision to rule that laws against interracial marriages violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. You can reference the decision here.

[In Conceivable]

Originally posted by Bricker
There is no federal constitutional right to sodomy.

Damn! How could the Founding Fathers forget to include sodomy in the Bill of Rights?

The law is silly and of course it should be reversed. However, I am not a lawyer and have no idea if the Supreme Court actually has the power to reverse this state law.

[Bricker]

Originally posted by rexnervous
But listening to NPR, the reporter noted that Texas doesn't ban sodomy among consenting heterosexual adults. Only homosexual. So that seems clearly discriminatory, and probably worthy of being reviewed by the SCOTUS.

However - IANA Lawyer, even remotely

Extremely valid point. The Texas statute should be overturned. My 'no' was in response to whether or not Bowers should be reversed.

- Rick

[Dewey Cheatem Undhow]

Just for your reference:

Romer v. Evans

Bowers v. Hardwick

Unless the court is planning on reversing itself and elevating sexual orientation to a "suspect classification" on par with race, alienage and national origin, or unless they reverse and say sodomy is a "fundamental right" on par with free speech, etc., the Texas law won't get overturned. In Romer, the Colorado law preventing gays from seeking government protections was overturned on the grounds that it failed the "rational basis" test, the minimal level of scrutiny applied to non-suspect classifications and cases not involving a fundamental right. That in itself is a very unusual result -- the rational basis test is a hard one to fail -- and to have it happen again would be a little like lightning striking twice.

OTOH, the Court might be willing to take either of those two courses of action, so who knows?

[Diogenes the Cynic]

Bricker, there's no specific constitional right tro eat bananas either, or to jerk off, or to sleep on your back. Do stae have the right to ban those activities?

[Dewey Cheatem Undhow]

Originally posted by MrVisible
The consititution doesn't explicitly enumerate a right to anal sex. Can you explain why consensual sex between adults doesn't fall under Amendment IX?

Because to so find would be tantamount to giving the judiciary the power to amend the Constitution outright. Why bother, say, passing the 19th amendment when you can just have the judiciary give women the franchise via the ninth amendment?

The better view of amendment IX is that it guarantees that other sources of rights, such as state constitutions, are valid. I'll avoid further hijack, but if you're interested, minty and I have been engaged in a long, rambling discussion that includes this topic over here.

[Robb]

Bricker, I believe these are the questions presented to the Supreme Court in this case, if that helps.
Question:

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 the 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?

The site also contains the briefs filed by both sides and amicus briefs.

[Mtgman]

The SCotUS can only say that Texas has to make its laws apply fairly to all citizens. As Bricker noted, they can not say Texas can't make sodomy illegal. They can strike down the portion of the law that makes it apply only to homosexuals, but that still leaves the Texas Legislature with the choice of outright banning sodomy(as some states have done) for all citizens of Texas or making it legal for all(as some states have done).

Enjoy,
Steven

On Preview: MrVisible the analogy between a ban on sodomy and a ban on interracial marriage doesn't hold up. A state could outlaw marriage for ANY of its citizens(well, in a hypothetical world at least, since marriage is not a constitutionally protected right) and not fall afoul of the Equal Protection and Due Process clauses of the 14th ammendment. What got the state of Virginia in trouble was that they didn't outlaw it to all of their citizens, just some of them. This is the same trouble Texas is in now, but it still doesn't mean that sodomy, as an act in and of itself, regardless of who performs it upon whom, can not be made illegal.

On Second Preview: Aiee!! you guys are going too fast. I'll submit while the submittin's good

[Bricker]

Originally posted by MrVisible
Bricker, you're right. The consititution doesn't explicitly enumerate a right to anal sex. Can you explain why consensual sex between adults doesn't fall under Amendment IX?

Well, the short answer is because the Court has already found it doesn't.

Also, can you go into detail as to why "The remedy for such state laws is repeal at the legislature"? And then explain why this hasn't happened so far? And then tell me why the Supreme Court isn't responsible for making sure that the states treat individuals fairly in their justice systems, in accordance with the Constitution of the United States?

I agree that the Texas law invidiously discriminates on the basis of sexual orientation, by making the same act legal as between heterosexuals and illegal as between homosexuals. For this reason, it should be overturned on Equal Protection Grounds.

On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution. I assume it hasn't happened so far because the will of the residents of Texas, as expressed through their legislature, is to prohibit sodomy.

Please make sure to look over RICHARD PERRY LOVING et ux., Appellants, v.VIRGINIA, and then tell me whether the Supreme Court was right in their decision to rule that laws against interracial marriages violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. You can reference the decision here.

The Supreme Court was right in Loving, because the Virginia law at issue invidiously discriminated based on race, an impermissible criteria under the Fourteenth Amendment.

- Rick

[Dewey Cheatem Undhow]

Originally posted by Diogenes the Cynic
Bricker, there's no specific constitional right tro eat bananas either, or to jerk off, or to sleep on your back. Do stae have the right to ban those activities?

Yes. They also have the right to be booted out of office for passing such stupid laws.

[Polycarp]

First off, reversal of Bowers v Hardwick is only a long-odds best case scenario, not expected from SCOTUS as presently composed. But this case is being brought on equal protection grounds -- it is illegal to commit with someone of your own sex precisely the same acts that it is legal to commit with someone of the opposite sex, in Texas and three other states. And that puts gay men and women at a legal disadvantage that specifically targets them (as well as persons of effective bisexuality who might engage in same-sex acts under the purview of the law).

Counsel for the appellants are attempting to get the Texas law thrown out as a violation of the Fourteenth Amendment guarantee of equal protection -- because the law clearly targets those who wish to engage in "alternative sex acts" with same-sex partners, to the exclusion of those who would engage in the same acts with opposite-sex partners.

And, Bricker, the background on Bowers indicates that it was a 5-4 decision with the late Justice Powell as the "swing justice" and that he later said that he made the wrong decision. In addition to which, the Bowers case was argued totally wrong from my perspective -- it was clearly a case of invasion of privacy (read the facts behind the case) in which, unfortunately, an attempt to overturn the sodomy law was substituted for the very real and intentional police harassment and violation of Fourth Amendment rights that unquestionably did occur.

[minty green]

Would people please drop the Ninth Amendment stuff? Seriously, it seems like people are invoking it left and right in the last month or two, but it is nothing but a truism, folks. It merely says that the government can't deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.

Now, with that out of the way, I just want to say that the Court need not, and almost certainly will not, reverse Bowers to reach the result of striking down Texas' sodomy statute. Bowers was decided on the basis of Due Process; that is, there ain't no Due Process right not to go to jail for engaging in a little consensual sodomy.

This case asks a different question: Does the Equal Protection clause prevent a state from drawing a gender-based distinction as to who can go to jail for engaging in a little consensual sodomy. That is, Texas law permits couples of opposite sex to put their hoohas and dingles wherever they want with each other, but says that you can't do that if you're the wrong gender. This, according the the defendants, violates the 14th Amendment's guarantee of equal protection of the laws.

(Opposite sex couples already cannot be charged with sodomy in ordinary circumstances, even where state sodomy law applies to both heterosexual and homosexual conduct, because the courts have recognized a Due Process right to procreate yourselves silly without the interference of the state.)

Because this is not primarily a Due Process case, the likely result is that the Texas sodomy law will be (as held by Bowers okay under Due Process, but in violation of Equal Protection.

Either way, they wouldn't have taken the case if there wasn't some serious disenchantment on the part of the Court with the result in Bowers. I predict good things come about June.

[Mtgman]

Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is "homosexual" is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn't have taken the case if they don't intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.

Enjoy,
Steven

[minty green]

Originally posted by Dewey Cheatem Undhow
The better view of amendment IX is that it guarantees that other sources of rights, such as state constitutions, are valid. I'll avoid further hijack, but if you're interested, minty and I have been engaged in a long, rambling discussion that includes this topic over here.

No, actually, you and I have been discussing the 14th Amendment in that thread. I believe that we agree on the 9th Amendment.

[Dewey Cheatem Undhow]

minty: That thread covers a lot of ground. We ("we" meaning me and other thread participants) did indeed discuss the ninth amendment. You may not have entered the discussion until later on (in which case, mea culpa), but the discussion does "include that topic."

[Mtgman]

Originally posted by Diogenes the Cynic
Bricker, there's no specific constitutional(sic) right to(sic) eat bananas either, or to jerk off, or to sleep on your back. Do states(sic) have the right to ban those activities?

Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class].

Enjoy,
Steven

[Bricker]

Originally posted by Diogenes the Cynic
Bricker, there's no specific constitional right tro eat bananas either, or to jerk off, or to sleep on your back. Do stae have the right to ban those activities?

As has already been answered by others, the answer is yes.

Although much of the historical support for the banning of sodomy, which was discussed at length in Bowers, would not apply to any of the activities you list here.

[Priam]

I am of the belief that the Supreme Court will simply insist Texas modify its law to cover everyone or remove it from the books. Equal Protection is probably the clearest point in this whole case.

However, what would be even more interesting is attempting to get a ruling about Equal Protection based, not upon wording, but upon application. Most of the states which ban sodomy and oral sex for all have only really enforced the law when the couple was same-sex. Thus, would that be considered violation of Equal Protection regardless of the law's technical wording?

[Diogenes the Cynic]

Originally posted by Mtgman
Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is "homosexual" is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn't have taken the case if they don't intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.

Enjoy,
Steven

IANAL, but let me ask the ones who are, would it be possible to assert gender as a class in this case, rather than orientation. IOW, the law discriminates against men because it prohibits an act for them, that is permitted for women. Can it be argued that I have the same right to suck on a penis as a woman does?

[Polycarp]

Originally posted by Mtgman
Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is "homosexual" is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn't have taken the case if they don't intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.

Enjoy,
Steven

Steven, I think you have the wrong angle on the question here. I will concede that there are various categories invoking various degrees of scrutiny in the standard tests for whether a law violates due process, but this appeal is being brought on an equal protection issue. The state would have to show a very strong argument that the health and welfare of Texans depend on making the distinction the challenged law makes. Perhaps one of the lawyers will address this.

And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism. I am quite well aware that SCOTUS will jump through hoops with their robes on fire to find another justification for their decisions than recognizing a Ninth Amendment right, even if it involves "emanations and penumbras." But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights -- i.e., as a de facto statement about the current status of the law.

"Five votes can do anything." - the Hon. Wm. Brennan

[Gorsnak]

I too think that the classification of interest here is gender, not orientation. The Texas law doesn't forbid a lesbian from fellating a gay man, ergo, it's not about the orientation of those committing sodomy. It's about their gender, and gender is a fairly heavily protected classification.

[minty green]

Originally posted by Mtgman
Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class]

No, because such a law would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid.

[Okay, actually I have no idea whether such laws would withstand judicial scrutiny under the Due Process clause. But I do want to point out that their constitutional validity would be eminently questionable.]

[Dewey Cheatem Undhow]

Originally posted by Diogenes the Cynic
IANAL, but let me ask the ones who are, would it be possible to assert gender as a class in this case, rather than orientation. IOW, the law discriminates against men because it prohibits an act for them, that is permitted for women. Can it be argued that I have the same right to suck on a penis as a woman does?

I'm not sure this would fly. The law isn't defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex.

Here is the relevant statutory language from the Texas Penal Code:

§ 21.01. Definitions

In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

(2) "Sexual contact" means, except as provided by Section 21.11 [re: Indecency With A Child], any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.

(3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.

§ 21.06. Homosexual Conduct

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C misdemeanor.

So to make the gender argument, you're stuck with saying it's discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused -- the law itself applies equally to men and women.

Besides, gender is a "quasi-suspect" class, so it doesn't get the same strict scrutiny other protected classes do. Still, it's more than rational basis scrutiny, and that's something.

[Dewey Cheatem Undhow]

Originally posted by minty green
...to borrow a phrase certain to send somebody or other into a fit...

Now who could that be...?

[minty green]

Originally posted by Polycarp
And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism.

Ah, it does my heart good to prove Polycarp wrong. It's like killing the Buddha with an RPG or something.

Anyway, allow me to introduce you to United States v. Darby, 312 U.S. 100, 124-25 (1941):

Our conclusion is unaffected by the Tenth Amendment which provides: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, secs. 1907, 1908.

From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. Martin v. Hunter's Lessee, 1 Wheat. 304, 324, 325; McCulloch v. Maryland, supra, 4 Wheat. 405, 406; Gordon v. United States, 117 U.S. Appendix, 697, 705; Lottery Case, supra; Northern Securities Co. v. United States, supra, 193 U.S. 344, 345 , 24 S.Ct. 459, 460; Everard's Breweries v. Day, supra, 265 U.S. 558 , 44 S.Ct. 631; United States v. Sprague, 282 U.S. 716, 733 , 51 S.Ct. 220, 222, 71 A.L.R. 1381; see United States v. The Brigantine William, 28 Fed.Cas. 614, 622, No. 16,700. Whatever doubts may have arisen of the soundness of that conclusion they have been put at rest by the decisions under the Sherman Act and the National Labor Relations Act which we have cited. See, also, Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 330 , 331 S., 56 S.Ct. 466, 475; Wright v. Union Central Ins. Co., 304 U.S. 502, 516 , 58 S.Ct. 1025, 1033.

Hey, when I say "truism," I mean "truism."

[Dewey Cheatem Undhow]

Originally posted by Polycarp
But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights -- i.e., as a de facto statement about the current status of the law.

Apologies for the hijack, and it may be better to address this over in the other thread, but you've mentioned this before and I'm wondering what it is you're referring to? I trotted over to Findlaw to see if their annotations mentioned it, and they said this, which seems to argue against your position re Madison:

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.'' It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. (Emphasis added)

Now I realize the Findlaw annotations are hardly a constitutional treatise, but since your view of what Madison was doing is clearly different, I was wondering if you would mind spelling it out?

[Dewey Cheatem Undhow]

And I see minty beat me to the punch, with better cites to boot.

[mykpart]

They have to do away with the ban on sodomy in Texas. Otherwise, every time Dick Armey shakes hands with Governor Rick Perry, they will be in violation of a law that says a p***k can't get anywhere near an a*****e in Texas! (Thanks for that joke, Molly Ivins!)

[minty green]

Originally posted by Dewey Cheatem Undhow
And I see minty beat me to the punch, with better cites to boot.

May it always be so.

[And given how I currently have three cases that could eventually end up before SCOTUS, and two that could actually be granted review, may it REALLY be so.)

[minty green]

Also I told you we had the same reading of the Ninth.

[Dewey Cheatem Undhow]

Hey, and I believed you.

[minty green]

Kum bah yaaaaaahhh my lord
Kum bah yaaaaah.

[ricksummon]

Um, Minty, if your cite is supposed to prove that the Ninth Amendment is a truism, how come it says:

Our conclusion is unaffected by the Tenth Amendment

[Gorsnak]

Originally posted by Dewey Cheatem Undhow
I'm not sure this would fly. The law isn't defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex.

Here is the relevant statutory language from the Texas Penal Code (text omitted)

So to make the gender argument, you're stuck with saying it's discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused -- the law itself applies equally to men and women.

Besides, gender is a "quasi-suspect" class, so it doesn't get the same strict scrutiny other protected classes do. Still, it's more than rational basis scrutiny, and that's something.

No, to make the gender argument, you are stuck saying that fellatio is a crime if performed by a man, but not if performed by a woman. It has nothing to do with the preferences of the people involved. The people involved could prefer anything whatsoever. It's the gender of the fellater that detemines if a crime has been committed.

[Diogenes the Cynic]

I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another. I'm not really sure I buy that, though. It seem sto me that it's just that the discrimination is situational. Sometimes it goes against men, sometimes against women.

[minty green]

Originally posted by ricksummon
Um, Minty, if your cite is supposed to prove that the Ninth Amendment is a truism, how come it says:

Because sometimes, I'm really just that amazingly stupid. Remind me to tell you about the time I accidentally omitted the word "and."

F***.



_{I would point out, however, that one of the dissents in Griswold v. Connecticut described the 9th as a "truism" along with the 10th. And outside of the superfluous reference to the 9th in Griswold, the Supreme Court has uniformly rejected the 9th as the source of any kind of right whatsoever.}

[minty green]

Originally posted by Gorsnak
No, to make the gender argument, you are stuck saying that fellatio is a crime if performed by a man, but not if performed by a woman.

Originally posted by Diogenes the Cynic
I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another.

That, right there, is the choice in the primary issue presented to the Court. I'm guessing 6-3 in favor of the position described by Gorsnak.

I leave it to the gentle reader to decide who the three losers are.

[Polycarp]

Minty, I see ricksummon beat me to the question I would ask you. Care to clarify? (I concur that the Tenth is effectively a truism -- it makes explicit what the original text implies strongly -- that the Federal Government is one of delegated powers, though supreme within its sphere of power, and that the states retain the powers they didn't delegate, except where the states, through the U.S. Constitution or their own acts, whether of constitutional stature or not, set a power aside as not capable of being exercised by them. For example, the power to pass an ex post facto law is in abeyance; the Constitution provides that neither state nor federal government may do so; it's "retained by the people" in the sense that they have not enabled either tier of government to pass one.

Dewey: Mr. Madison's remark is quite clear to me:

''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

IMHO, the Ninth Amendment attempts (unless balked by the Bork/Scalia school of thought) to make secure the rights which the FF would regard as basic human rights but which they did not see fit to spell out in Amendments I-VIII, including the permutations from them resulting from 214 years of change and growth in America and in world capabilities. Exactly what those rights are must be discovered by some means. (And here is where one's jurisprudential philosophy comes into play -- are there references to rights not specified in the works of the FF? Can one see an evolution of a concept of particular rights as part of the evolving concept of American freedom, e.g., "privacy"? To a textualist, it of course must be a nullity or a guarantor of statutory and state-level rights, since it says that some rights exist but not what they are.) But I would have no problem in a judge founding the right to marry or the right to travel in the Ninth's guarantee -- they are spelled out in various decisions, but I would hesitate to get particularly thrilled by the formularies used by the justices to arrive at them. Far better to say of them, "This is something that Americans have always concurred is a legitimate right which all people have, subject to the standard protection-of-minors provisions which nearly all laws are construed as taking into account, and it must be among the unenumerated rights which the Ninth Amendment guarantees."

But I think Madison's comment makes clear that he explicitly did not consider the original Constitution's provisions and the first eight amendments as a summary of all rights which the FF agreed were inalienable, and that the Ninth served to protect those others which were not enumerated in the previous text.

[Blalron]

I leave it to the gentle reader to decide who the three losers are.

Scalia, Thomas, and Rehnquist of course!

[minty green]

I shall praise thee for thine prescience come this June, Blarlron.

[Gorsnak]

Originally posted by Diogenes the Cynic
I think Dewey was saying that it also forbids some acts for lesbians, so it doesn't really discriminate against one gender more than another. I'm not really sure I buy that, though. It seem sto me that it's just that the discrimination is situational. Sometimes it goes against men, sometimes against women.

Well, yes, he mentioned lesbians and strap-ons, but I don't see how that's different from fellatio.

A man can legally penetrate a woman's anus with a strap-on dildo. A woman can't. A man can legally allow a woman to penetrate his anus with a strap-on dildo, but a woman can't.

The claim of gender discrimination isn't made on the basis that there are fewer things men can do than women, or vice versa. It's based on the fact that for any given sexual act performed on any given person, you cannot determine whether it runs afoul of the law unless you know the gender of the person performing the sexual act.

Perhaps Dewey could clarify his point, because somehow I don't think I'm understanding it.

I would appreciate it if someone with greater legal acumen than myself (that is to say, anyone with any legal acumen at all) would comment on Priam's point about the possibility of a ruling based on lack of equality in the enforcement of non-specific sodomy laws ( though not in this case, obviously). My own guess is that the ruling in this case will strike down the Texas statute on equal protection grounds, but won't rule sodomy laws to be unconstitutional, leaving it open for states to pass general laws, and then continue to use them to persecute gays and lesbians. Sadly, I don't know that forcing the state of Texas to be more circumspect in how it persecutes gays and lesbians is any appreciable victory.

[Diogenes the Cynic]

Gorsnak, I was just sort of guessing as to what Dewey meant, and he doesn't need me to speak for him, so I'll let him make his own clarification, but JFTR, I agree with you on the gender class angle. At least it seems right on an intuitive level to me, but, then, I would have also thought that consenting adults had a civil right to engage in whatever private sexual activity they wanted. I couldn't believe it when Bricker explained the constitutionality of sodomy laws in a thread on this case a few months ago.

I just hope the SCOTUS finds a sound way overturn this, if not on due process then on equal protection grounds.

Does anyone know if there's any movement in the Texas legislature to repeal this law?

[Gorsnak]

Diogenes, I had already gathered that you pretty much agreed with me on the gender thing, yours was just the convenient post to quote to make my point. Dewey seems to be trying to suggest that the discrimination is somehow on the basis of the preferences of the participants, in spite of the fact that preferences are nowhere mentioned in the statute, and moreover seem to be irrelevant in determining whether the statute has been violated. I think the argument is supposed to be that they're not discriminating based on the gender of any given participant, but on the combination of genders between the participants, but for my money this is strictly semantic smokescreening, as I believe the phrasing in my posts above makes clear.

Blah. This whole topic ticks me off. It's one of those things that makes me glad to live in Canada. Trudeau might have been a pompous ass, but he was right on the money when he said "The state has no business in the bedrooms of the nation."

[Apos]

---It merely says that the government can't deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.---

So, the purpose of this amendment is to prevent the government from using a particular basis to deny an asserted right... seeing as it can deny it with no basis at all? That doesn't seem to make a lot of sense.

While I concur that the ninth is by no means a sound place to found anything at all, the above interpretation of the ninth seems a little hard to believe.