The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.** It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter**. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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.
bolding mine.
Did Justice Kennedy show his hand when he wrote this opinion? Will he not go so far as to recognize same sex marriage?
Scalia, terrified as he was of the gay bogeyman, sure didn’t think so.
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.
I don’t think it goes so far as to indicate how Kennedy would rule. It was Kennedy’s way to reassure everyone that this decision didn’t go far enough to require gay marriage.
I just got the impression that he lumped it in with Scalia’s parade of horribles and didn’t consider it on the radar. It went like this:
Scalia: If you allow sodomy, then you must allow child pornography, prostitution, adultery, bestiality, fornication, and gay marriage.
Kennedy: Of course not. We hold that homosexual sodomy is protected, but the constitution does not go so far as to disallow state regulation of those other things.
In fact, O’Connor specifically said in her concurrence that a state had a right to limit marriage to heterosexual couples. Does that have any precedential value?
Giles
August 17, 2010, 9:57pm
5
It’s not a precedent, because (1) it was said by just one justice, and (2) the issue of same-sex marriage was not before the court.
It can only give you an idea of how one justice might vote in the future.
I don’t think that sentence is enough to draw a conclusion. My interpretation is to read the sentence literally. All he said was that the present case didn’t deal with that particular issue.
I think what’s happened. It was Kennedy’s way of saying to Scalia, “You’re being hysterical with the slippery slope here.”
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation [emphasis added by me ], adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision
Masturbation legal? Oh, the horror! :rolleyes:
But seriously, did any state, prior to Lawrence, outlaw masturbation? And if so, was anybody anywhere ever imprisoned for it?
“Justice Scalia, did you swear on the Bible to uphold the Constitution, or vice versa?”
Blalron:
But seriously, did any state, prior to Lawrence, outlaw masturbation? And if so, was anybody anywhere ever imprisoned for it?
From 2008:
Just in time for Valentine’s Day, a 2-1 majority of the Fifth U.S. Circuit Court of Appeals has struck down a Texas law that banned sales of vibrators and other sex toys. The court found that the law violated the Fourteenth Amendment “substantive due process” rights of Texans “to engage in private intimate conduct without government intrusion.”
The one dissenter, Circuit Judge Rhesa Hawkins Barksdale, wrote that invalidating the statute was unnecessarily “friction-producing” for state-federal relations. . . .
n the other hand, the neighboring Eleventh U.S. Circuit Court of Appeals upheld Alabama’s law in 2004, even as it related to plaintiffs who had been prescribed such devices by their doctors for health reasons. Tuesday’s ruling therefore creates an arguable conflict among the circuits, at least theoretically teeing up a possible U.S. Supreme Court case.
Heh. Unnecessarily friction producing. That’s cute.
pravnik
August 17, 2010, 10:56pm
11
Blalron:
But seriously, did any state, prior to Lawrence, outlaw masturbation? And if so, was anybody anywhere ever imprisoned for it?
“If masturbation is a crime, I should be on death row!”
Gilbert Godfrey (regarding Pee Wee Herman)
Right. Scalia’s argument was that according to everything the Court said, there was nothing to keep them from mandating same sex marriage. He used the argument that SSM supporters are using in court and all over this message board!
However, when faced with Scalia’s argument (again, using the same set of facts as Plaintiffs use today) Kennedy said hogwash.
Maybe I am reading too much into it, though.
Blalron
August 17, 2010, 11:24pm
13
If I were a betting man, I’d actually put money on Kennedy ruling in favor of gay marriage. Take a look at this other snippet from Lawrence:
The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.
This took me a second. I read it and was trying to figure out why the Constitution would swear to uphold Justice Scalia.
This excerpt is what Scalia was addressing.
IMO, inferences here are not warranted. While I suspect from Kennedy’s jurisprudence regarding gay rights that he will uphold Perry , in Lawrence he was voiding a law that criminalized gay sexual contact under any circumstances. To keep the scope of his ruling as narrow as possible, he itemized four things it did not say:]It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. [ ]It does not involve public conduct or prostitution. [*]It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[/ul][/li]
Kennedy:
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. 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.
In other words, “I’m dealing with the specific circumstances of the case before the court, not everything downhill on the slippery slope that Justice Scalia foresees.”