So the Republicans say they want to re-criminalize sodomy but SCOTUS already overturned their previous anti-sodomy law (Lawrence v Texas). Can they really just pass another? Can they just keep re-creating the same law over and over every time it gets overturned? And if they can, what’s the point of Supreme Court decisions then?
Sure, the legislature can pass it, the governor can sign it, and they can put the resulting statute on the books.
But if anyone is arrested and charged under it, any judge who doesn’t like being reversed on appeal will simply dismiss the case.
They can pass it, but they can’t enforce it.
Ah, Texas! They love doing something that is against the law when there is nothing the law can do something about it. Sex is so much naughtier in Texas as a result.
But, in theory at least, they could enforce it. It would be appealed, I’m sure, and eventually overturned again. However in the mean time, the police could use the law to harass people. And once it’s overturned by SCOTUS again, Texas could just pass another ad infinitum… is this how our laws are supposed to work??
IANAL, but I believe if this were to happen judges could issue an injunction immediately after the law’s passage which would render it powerless pending review. IANAL, though.
Under our system of jurisprudence, judges need a “case or controversy” brought before them by a party having standing in order to render any decision, incuding an injunction. But that is easy enough to do: any Texan who has any interest in pursuing any outlawed practice could ask the court for an injunction barring the state, its local govenments, prosecutors and police, from enforcing a law that flies in the face of his constitutional right, citing Lawrence, and voila!
It might be worth noting that Lawrence did not declare all homoexual activity protected, only that done in private between consenting adults. Statutory sodomy (similar to statutory rape) of a minor or otherwise legally incapacitated individual, publicly visible sexual acts, forcible anal rape, etc., can legitimately be outlawed without going against Lawrence.
The PDF of the State Republican Platform – worth a read in itself for reasons more suited to GD than GQ – indicates that what the GOP wants is for Congress to remove the jurisdiction of the Federal courts in cases of sodomy. That’s rather more than just re-passing the state law.
The larger point is that the law is a process, not an ideal. There is no overriding capital L Law that mitigates against legislatures (or prosecutors or police forces) being corrupt, stupid, venal, vindicative, or clueless. Nothing can prevent a bad law from passing. Time can and usually does stop the worst abuses, but that happens haphazardly and often agonizingly slowly.
But what’s the alternative? There is no higher being watching over the world to keep whatever you consider to be wrong from occurring. Bad things happen; good people have to work to overturn them. This has always been true and always will be. Why would you think otherwise?
There wouldn’t be any need for Texas to pass a “new” sodomy law at any rate - the law invalidated by Lawrence v. Texas, Texas Penal Code Sec. 21.06 titled “Homosexual Conduct,” is still on the books. Lawrence v. Texas simply made it unconstitutional and unenforceable. Passing and enforcing an identical “new” statute would be exactly the same as enforcing the current one.
What is the legal basis for Congress having the ability to restrict the jurisdiction of Federal courts in such a way?
Federal courts have read it that way for a while - Congress creates the lower federal courts and can make exceptions to the appellate jurisdiction of the Supreme Court, so it can theoretically control and limit what cases the federal courts hear. The reasoning goes back to Justice John Marshall in Cary v. Curtis:
‘’[T]he judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court), dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.’’
Must … not … bitch … more … about … Texas … Must … not … bitch … more … about … Texas …
Here’s a timely example. A federal court said Mr Obama’s blanket prohibition against deep sea drilling for oil was arbitrary and ruled it invalid.
Granted this isn’t a law but it’s similar enough.
Did you see the point, the judge didn’t like it because it’s ARBITRARY.
Now Mr Obama could either fight this decision or he could issue another order that isn’t so arbitrary. Maybe this time the judge would agree with him.
It’s similar for laws. When a court rejects a law, it almost always gives REASONS why the law is unconstitutional. A state or federal government, or agency even, isn’t going to waste time just repassing the same law.
Why? Because you have to remember, judges are all, in a way, colleagues. If a judge were to say a law is unconstitutional and the legislature were to repass the law, another judge would likely rule the same. Why? Because to say otherwise would not only say that the law is wrong but one of his colleagues was incorrect too. It would be a slam against the whole law profession.
Now obviously this does happen, judical decisions are reveresed, but it takes a lot of thought before one judge will call another judge wrong. 'Cause what it means is that one judge is saying that the other judge didn’t think it out correctly and wasn’t trained properly to do so.
Whether this is so or not, isn’t the point, that’s how it appears.
So when a law is unconstitutional the legislatures or governmental agency will examine the reason why it is not constitutional and change the bill enough so a second judge may uphold it without having to correct his peer.
Also remember this is for the USA. As another poster pointed out in the USA you have to have standing and reason to sue. US courts don’t issue advisory opinions. If an unconstitutional law is passed and no one sues to overturn it, it’s enforced. Even if it’s wrong, until someone sues it’s law. Standing in law, means you have the right to sue. For instance let’s say there is a law that says Nuns can’t wear black. I’m not a nun so if I wanted to sue to overturn that law, I’d have to convince the court I have an interest in seeing that law is overturned.
Note in other countries, courts do issue advisory opinions
My guess is that they see an opening that will give the court a chance to reverse their earlier ruling. This court appears to see nothing wrong with such reversals. Note that Brown v. Board of Education also explicitly reversed an earlier ruling (and was roundly criticized for it at the time) so it is not merely a liberal v. conservative question.
I fully expect the court to overturn the medicare bill. In fact, they could even outlaw social security at the same time, although I predict they won’t.
Just a quick tweak to Marxxx’s otherwise-excellent post:
Americans often use “law” as synonymous with “statute”, but this is not how courts, lawyers, and others involved employ the term. Yes, Mr. Obama’s blanket ban was not a statute – Congress would need to pass one of them. But presuming Congress has statutory standards in place for drilling for oil, and I’m sure they do, Mr. Obama was within his constitutional rights to issue an Executive Order suspending all deep-water drilling. Notice I emphasized “constitutional” there. (Granted the statute law may specify the EPA – Mr. Obama is in charge of the EPA, because it is part of the Executive Branch which he heads.)
What’s wrong with that Executive Order is that the courts found it to be unnecessarily arbitrary. If, for example, it had halted all drilling until it was determined for each site that all necessary safeguards were in place, and provided for resumption of drilling at that point, it would not have been improper. As it stands, it is probably a violation of the “takings” clause, making all oil-company investment in deepwater drilling sites worthless. But the courts didn’t need to find that, and presumably didn’t – it simply was “arbitrary and capricious” to do a blanket ban. If Amerada Hess (to pick a company at random) has a deepwater rig that is in full compliance with industry safeguards, they’re shut down simply because of public concern over BP bypassing those safeguards and the disaster that ensued. It’s not a constitutional question, it’s a matter of ensuring that an otherwise legal government order conforms to the expectations for such an order – that it does not unnecessarily trammell the rights of law-abiding persons going about their business in conformance with any applicable law.
Given the way Lawrence was decided, it is possible (though I think unlikely) that Texas can write an anti-sodomy law that passes constitutional muster. The law would have to equally apply to heterosexuals and homosexuals.
The Texas law struck was against homosexual conduct. 5 justices ruled it violated due process. The sixth in the majority found it violated equal protection. It is conceivable that a Texas law criminalizing anal and oral sex could pass muster, then. I’d think it unlikely, because the impact on gay individuals of such a law is significantly greater than on straights.
I’m not certain, but it seems that if the state (or a few over-zealous police officers or prosecutors) kept trying to enforce an unconstitutional statute, and its unconstitutionality has been made abundantly clear to them by numerous courts, the individuals responsible might be criminally liable for deprivation of civil rights under the color of law, under 18, U.S.C. § 242
Similarly, Texas may argue that a new law could be crafted to remove whatever constitutional infirmity plagued the old law. (I’m not sure how, but perhaps they are…)
Or at least - someone can sue for malicious prosecution, if you continue to charge them after the court has said such a statute is unconstitutional…
Courts don’t worry about niceties or feelings when overturning judgements. It’s a pyramid.
-If someone at the base level court rules on something, that’s a precedent. It can be used by other courts to guide their decisions.
-If the courts below you in the appeal ladder rules something, then it is appealed to your level, that is an opportunity to correct any errors in the judgement you may see.
-if an appeal court above you makes a ruling, that precedent is binding, meaning if you don’t follow it it’s pretty good grounds for appeal and you will be overturned.
-obviously, the Supreme Court ruling is the precedent for the whole country.
-it is not unusual for different circuits to end up with contradictory rulings on an issue - since precedents in a different circuit are not binding; in this case, an issue on some appeal is very likely going to be accepted by the high court to resolve the contradictions.
-A court can reverse itself (but not precendents from a higher court) if it feels the decision needs “modification”. It waits for a similar appeal to reach it, then issues a new decision. Newer precedents supercede old.
-the judges general avoid broad pronouncements, being lawyers. The more specific, the less they restrict the future decisions they have to make. It’s easier, for example to say “a sodomy law that only applies to men is unconstitutional”.
That really does not say what the state can or cannot ban, other than the law must apply to both men and women. If Texas prohibits sodomy by either sex to either, then they may look at the situation again (in 5 years when another appeal reaches them). This minimizes the amount of “activism” the court has to do. The ball is back in the Texas state legislature court. Do they want to look like a bunch of homophobe-obsessed hicks, or just forget about it? Why is it important? If Texas never gets around to passing a new law, then the court does not have to consider if sodomy is a protected right, or how far privacy rights protect some things.
The state cannot pass a law that violates constitutional rights.