That’s why I wondered aloud about cases where everyone consents. Yes, one person is hurt unless all agree. Though I think many would say that even if all consent, adultery is an “abuse of an institution the law protects.”
So if we rely on the injury to the non-consenting spouse as a basis for adultery laws, we have to reconcile this justification with the fact that most states do not think that repair of the injury is worth the policy costs.
In finding the statute unconstitutional, the court said:
The court did not mention the part about “absent injury to a person or abuse of an institution the law protects.”
This raises a fundamental question: What is the holding of Lawrence?
Is it that “decisions by married or unmarried persons
regarding their intimate physical relationship are elements of
their personal relationships that are entitled to due process
protection”?
or is it that “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual”?
It depends on what theory of precedential interpretation the next court decides to apply.
The court certainly gives an ample basis for either interpretation.
If we listen to the announced rule, the court says
and
But the next sentence undercuts need for this analysis. The court applied the rational basis test, which applies when the right in question is not a fundamental one and the statute does not discriminate against a suspect class. http://faculty.ncwc.edu/toconnor/325/325lect03.htm In other words, it was not necessary to the result in this case for the court to determine whether a fundamental right existed at all. If that’s the case, and you follow the* ratio decidendi* approach to precendent, then that stuff is all dicta.
How can we tell which theory the Supreme Court will apply?
They’ve said this:
When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound. Cf. Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 613 (1990) (exclusive basis of a judgment is not dicta) (plurality); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) (“As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.”) (Kennedy, J., concurring and dissenting); Sheet Metal Workers v. EEOC, 478 U.S. 421, 490 (1986) (“Although technically dicta, . . . an important part of the Court’s rationale for the result that it reache[s] . . . is entitled to greater weight . . .”) (O’Connor, J., concurring).
So Rehnquist says that the Court follows the ratio decidendi rule.
Of course, there is another way to look at it, as the Supreme Court of Virginia did. The Court looked at the results. The Court decided that the United States Supreme Court had, in fact, applied the rational basis test. By doing so, the Virginia Court reasoned, the Supreme Court had held that there was no good reason for any law regulating consensual sex.
Because the *Lawrence * court necessarily found that the statute did serve a legitimate state interest, this one doesn’t either.
On the other hand, adultery statues might well be rationally related to a legitimate state interest, in which case, the Virginia courts logic will not invalidate those statutes.