# Lawrence & Garner v Texas -- Decision? **URL:** \ **Category:** Great Debates\ **Created:** [June 24, 2003, 6:57pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103 "2003-06-24T18:57:38Z")\ **Posts on this page:** 17\ **Page:** 10
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 28, 2003, 3:09pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/182 "2003-06-28T15:09:28Z")
A clever bit of sophistry, Mr. Bond, but it won’t do. My point remains: by its very nature the Constitution _must_ be subject to some degree of interpretation, if for no other reason that situations must necessarily arise that the Founding Fuckups could not possibly anticipate. To some degree or another, the Supreme Court has evolved to perform that function. The “strict constructionists” are at pains to ensure that such a ghastly error as a “right to privacy” shall not be loosed to undermine a tight-assed, anal retentive Republic. Thier specious reasoning rests on the assertion that no such right is explicitly spelled out, and therefore cannot exist unless the Big C. is amended to include such, with all the attendant difficulty. We on the left, in furtherance of our goal of undermining authoritarianism in all its many repugnant guises, assert that the spirit of the Big C., which is at pains to ensure the maximum acceptable liberty of all citizens, is with us. It is entirely clear to us that forbiding such behavior as consenting adult sex is contrary to that spirit, as well as being damned silly. To turn fundamentalist reasoning against itself, if no other human rights exist save those explicitly spelled out by the Big C., why then does the Big C. not say so? Is there an Article that states “Unless clearly stated herein, or added by amendment, no further rights and liberties are endorsed”? Therefore, Justice **elucidator** sides with the majority, on the grounds that Justice Scalia’s objection is moot and with the prejudice that said Justice Scalia is an uptight moralistic old prune who is haunted by the lingering fear that someone is doing something which he does not approve of, and getting away with it. In addition, his admonition about not believing the other Justices is the kind of snotty rejoinder ill suited to the dignity of the circumstances. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 28, 2003, 3:17pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/183 "2003-06-28T15:17:16Z")
**RexDart:** > [@](#): > > Well, awkward or not, it is the word used in law school to describe such decisions. [nitpick] Some law schools. Not mine. I’ve taken classes on both jurisprudence and constitutional theory and never heard the term. [/nitpick] ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 28, 2003, 4:10pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/184 "2003-06-28T16:10:17Z")
> [@](#): > > \*Originally posted by elucidator \* > \*\*A clever bit of sophistry, Mr. Bond, but it won’t do. \*\* It’s “sophistry” to point out that none of the examples you cite are wholly fallacious?\*\* > [@](#): > > My point remains: by its very nature the Constitution _must_ be subject to some degree of interpretation, if for no other reason that situations must necessarily arise that the Founding Fuckups could not possibly anticipate. To some degree or another, the Supreme Court has evolved to perform that function.\*\* Do you own shares in a straw company? Strict constructionists agree that the Constitution must be interpreted. Indeed, strict constructionism is precisely that, a school of thought on interpretation. \*\* > [@](#): > > To turn fundamentalist reasoning against itself, if no other human rights exist save those explicitly spelled out by the Big C., why then does the Big C. not say so? Is there an Article that states “Unless clearly stated herein, or added by amendment, no further rights and liberties are endorsed”?\*\* For starters, it would be inaccurate, as there are other sources of legally cognizable rights, such as state constitutions and state and federal legislation. \*\* > [@](#): > > Therefore, Justice **elucidator** sides with the majority, on the grounds that Justice Scalia’s objection is moot and with the prejudice that said Justice Scalia is an uptight moralistic old prune who is haunted by the lingering fear that someone is doing something which he does not approve of, and getting away with it. In addition, his admonition about not believing the other Justices is the kind of snotty rejoinder ill suited to the dignity of the circumstances. \*\* None of which addresses the merits of what Scalia is saying. Ad hominem is not a valid argument. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 28, 2003, 4:13pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/185 "2003-06-28T16:13:32Z")
**RexDart** : chalk me up as another person to successfully traverse law school who’s never heard the term “purposivist.” ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [June 28, 2003, 4:21pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/186 "2003-06-28T16:21:15Z")
> [@](#): > > Never bet against crazy shit. Yep. One read through the first famous SC case (Marbury) that every student of the Court must be aware of will show that the Court has been pulling crazy shenanigans since the beginning. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [June 28, 2003, 4:36pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/187 "2003-06-28T16:36:15Z")
**Dewey:** > [@](#): > > Strict constructionists agree that the Constitution must be interpreted. Indeed, strict constructionism is precisely that, a school of thought on interpretation. This isn’t strictly relevant, but I’ve _got_ to share an exchange from the Estrada confirmation on strict constructionism. It’s just so darn amusing. During the hearings themselves, Senator Edwards asked Miguel Estrada whether he considered himself a strict constructionist. Estrada replied: > [@](#): > > I consider myself a fair constructionist. I mean, that is to say I don’t think that it should be the goal of the courts to be strict or lax. . . . Senator Durbin followed up on this in his written questions to Estrada, asking him to distinguish between strict constructionism and fair constructionism. Estrada wrote back that > [@](#): > > I do not believe that a legal text, such as the Constitution, should be construed “strictly” (i.e., grudgingly) or “loosely” (i.e., without careful regard to the text’s language so as to achieve a meaning beyond that which the text will fairly bear). In my view, the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains. Although the phrase “strict construction” is often used to reflect a legal philosophy that simply gives appropriate consideration to the text of the Constitution, the phrase is also sometimes used in a pejorative fashion to describe an approach to interpretation that does not fairly reflect the meaning that the words, history, and background of the text will fairly bear. For that reason, I avoided using that phrase in response to Senator Edwards’ question. Senator Durbin’s next asked Estrada which of the current Supreme Court justices he’d classify as strict constructionist, and which as fair constructionist. Estrada’s response cracks me up: > [@](#): > > Although the current members of the United States Supreme Court sometimes emphasize different interpretive tools—giving, for example, greater or less prominence to text, history, or precedent in a particular case—I believe each of them attempts in good faith to give a fair reading to the Constitutional provisions that come before the Court. For that reason, I would characterize each member of the current Court as a “fair constructionist.” Heh. No offense to Mr. Estrada, but that answer verges from “determinedly nonresponsive” to “meaningless drivel.” According to that definition, who _wouldn’t_ Estrada consider a “fair constructionist”? Talk about terms I’ve never heard in law school… ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 28, 2003, 9:34pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/188 "2003-06-28T21:34:28Z")
I still assert, BTW, that an upholding of the Texas sodomy law would have been a de facto endorsement of anti-gay bigotry\*, as outlined in my previous post. Therefore, any suggestion that this issue should have gone through the legislature, IMO, was made moot the moment the case went before the Supreme Court. After that, the law would have been overturned, or emboldened right-wingers would have kept these laws in place for the forseeable future. Hell, I wouldn’t have been surprised if they’d put them back up where they were previously struck down. One may say this outcome is all right, given our system of justice, or that this wouldn’t have happened, but as I said before, all I can say is that this sort of thing feels **wrong** to me… - Especially if Scalia said the kind of things in any concurrence/opinion that he did in those famous sections of his dissent… Perhaps he was doing the right thing legally, but it’s pretty clear he was doing it for bigoted reasons, which is more the pity for those who agree with him. Thank goodness Thomas at least had the balls to distance himself from that crap… ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [June 30, 2003, 8:45pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/189 "2003-06-30T20:45:35Z")
> [@](#): > > \*Originally posted by BrightNShiny \* > \*\*While it was wending its way through the courts, there was a vigorous debate going on in Texas about the law. > > According to the article, with regards to then Governer Bush… > > > [@](#): > > > > He has promised to veto any attempt to repeal the Texas sodomy law, which he defends as “a symbolic gesture of traditional values.” > > \*\* Said “symbolic gesture” being made by curling one hand into a fist and extending a certain finger, I suppose. 😉 ---
**Author:** ![Esprix](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprix/32/7899_2.png) [@Esprix](https://boards.straightdope.com/u/Esprix)\ **Post date:** [July 1, 2003, 11:04pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/190 "2003-07-01T23:04:59Z")
Now here’s an interesting review of the decision: [http://www.cnn.com/2003/LAW/06/30/findlaw.analysis.colb.bowers/index.html](http://www.cnn.com/2003/LAW/06/30/findlaw.analysis.colb.bowers/index.html) > [@](#): > > The outcome in Lawrence v. Texas could have rested on the Equal Protection Clause of the 14th Amendment. The Texas statute had singled out gay people, by prohibiting same-sex conduct (sodomy) that was permitted to opposite-sex partners… Though “[t]hat is a tenable argument,” the court explained, however, “[w]ere 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.” Implicitly, the court was suggesting that the statute would fail Equal Protection analysis as well. > > The court proceeded on due process grounds, though, because it feared that an Equal Protection decision would not go far enough – either in protecting privacy, or in dismantling anti-gay legislation and the accompanying stigma that attaches to a whole class of individuals. > > The court here spoke out forcefully against the stigma and societal condemnation that gay people have had to endure. Of the statute in question and others like it, the Court said that “[w]hen homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” {emphasis mine} I find this interesting. They rightly _could_ have used equal protection, but they really felt that wouldn’t go far enough to actually _provide_ those equal protections. I’m impressed by that. And I’d forgotten about this bit from the _Bowers v. Hardwick_ case: > [@](#): > > The majority and a concurring opinion by Justice O’Connor both cut through the disingenuous formalism of its defenders’ preposterous claim that a law against homosexual sodomy is actually neutral as to sexual orientation. Did they truly say it was neutral? Yes, they did, on the theory that it prohibits everyone – heterosexual and homosexual alike – from engaging in sexual interactions with a same-sex partner. As **matt\_mcl** is fond of quoting, there are equal laws in place so that neither the poor nor the rich may be allowed to sleep under bridges. Esprix ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [July 2, 2003, 3:49pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/191 "2003-07-02T15:49:56Z")
**Exprix** That CNN analysis piece was pretty crappy. They proceeded on Due Process grounds primarily because they thought it was improper to criminalize sodomy, period. An Equal Protection decision would have allowed criminalization of sodomy, so long as both heterosexual and homosexual sodomy were prohibited. Sua ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 2, 2003, 3:57pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/192 "2003-07-02T15:57:08Z")
In fact, I would argue that the Equal Protection route would have been much more beneficial to gay rights on all kinds of other issues. The majority’s Due Process holding protects nothing but the right to screw ourselves silly–it has no obvious affect on issues like marriage, benefits, discrimination, etc. By contrast, an Equal Protection ruling would have called into question every orientation-based denial of equality under the law. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 2, 2003, 4:01pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/193 "2003-07-02T16:01:09Z")
“effect” And I mention it only because that particular error always drove me nuts when I taught writing. :mad: ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 2, 2003, 4:16pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/194 "2003-07-02T16:16:19Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*In fact, I would argue that the Equal Protection route would have been much more beneficial to gay rights on all kinds of other issues. The majority’s Due Process holding protects nothing but the right to screw ourselves silly–it has no obvious affect on issues like marriage, benefits, discrimination, etc. By contrast, an Equal Protection ruling would have called into question every orientation-based denial of equality under the law. \*\* As noted elsewhere, **minty** , I differ respectfully from this. It’s my firm contention that Justice Kennedy very carefully transmogrified the nebulous Douglasian concept of a “right to privacy” with no clear limits into a carefully defined _right to autonomy in personal conduct_ where an individual’s right to decid with whom he or she will form intimate relationships, with or without sexual contacts, is Constituionally protected. I can see this as precedent for a wide range of cases including marriage, benefits, and discrimination claims. I am aware that traditional analysis sees this as a subset of **Dewey** ’s favorite bogeyman, Substantive Due Process, but I see it as a quite distinct definition of a recognized right. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [July 2, 2003, 4:24pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/195 "2003-07-02T16:24:20Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Mtgman, Tamerlane: I’ve already addressed your points earlier in the thread. Let’s not duplicate effort. \*\* I’ve thought about this for a couple of days now and I’ve read and re-read the thread. I guess I haven’t made my point clear and we’re still talking past each other. Let me see if I can summarize and get us back on the same page. Unlike **Tamerlane** I don’t think our disagreement is one of opinion and isn’t worth debating. You’ve asserted a couple of times now that the _Lawrence_ decision has the effect of negating morals as a basis for laws. A specific quote would be this one > [@](#): > > the Supreme Court has just told us that community views of morality are an insufficient public policy basis with which to restrict private sexual choices I’ve read the decision and I’ve even quoted pieces of it which refer to morality(and searched the entire document for the word “moral” to see if I could find a passage which makes an assertion like yours. So how does this reasoning go? Something like this? P1. One of the major holdings of _Bowers_ was that laws governing sexual conduct can be based on morals. P2. _Lawrence_ reversed _Bowers_. C. So now laws governing sexual conduct can’t be based on morals. Is that a fair description? I’d like to get us back on the same page here. I’m rapidly losing faith in a legal system whose modeling of real life is such that legalizing consensual adult sodomy in private would logically lead to legalizing (consensual?) adult necrophilia in private. I realize the legal system is often it’s own little world and it has it’s own rules and jargon, but it seems to me that a legal system which can’t make this distinction is an inadequate framework to help govern real-world human behavior. Moreover, I don’t see the arguement that if the model of human rights and their interactions used by the legal system would necessitate legalizing necrophilia if sodomy is legalized is a compelling reason to keep sodomy illegal. The arguement runs something like this. Legalizing sodomy leads logically(using legal logic) to legalizing necrophilia! I refuse to be punished by the limitations of your model. If you can’t separate necrophilia from sodomy in your legal system that isn’t my problem. The two are separate in the real world and laws should be able to be made to restrict one without restricting another. Enjoy, Steven ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 2, 2003, 6:30pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/196 "2003-07-02T18:30:18Z")
> [@](#): > > \*Originally posted by Polycarp \* > It’s my firm contention that Justice Kennedy very carefully transmogrified the nebulous Douglasian concept of a “right to privacy” with no clear limits into a carefully defined _right to autonomy in personal conduct_ where an individual’s right to decid with whom he or she will form intimate relationships, with or without sexual contacts, is Constituionally protected. Sorry, but I have to disagree here, Poly. Kennedy’s majority opinion certainly employs some pretty sweeping language, but in the end (see p. 17), it merely adopts Justice Stevens’ dissenting opinion from _Bowers_, and that opinion is indisputably a substantive due process analysis. Kennedy expressly locates the liberty interest at issue within the Due Process clause, saying “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” What’s truly odd about the opinion is where it says right near the end “The Texas statute furthers no **legitimate** state interest which can justify its intrusion into the personal and private life of the individual.” That “legitimate” is crucial, because a “legitimate state interest” is all it takes for a state to regulate a subject under _low-level scrutiny_. All the other right-to-privacy SDP cases–abortion, reproduction, marriage, etc.–have always applied _strict scrutiny_, which requires a “compelling state interest” to justify a regulation. I honestly have no idea whether Kennedy & Co. were applying strict scrutiny or low-level scrutiny or anything in between. All in all, it’s a very, very odd opinion there at the end. > [@](#): > > I can see this as precedent for a wide range of cases including marriage, benefits, and discrimination claims. You are certainly entitled to see it as such. But even assuming that _Lawrence_ creates a “right to autonomy in personal conduct,” those things you’re talking about fit very poorly within that category. _Lawrence_ compels the state to leave gay folk alone in their private conduct. It does not compel the state to confer legal status on their relationships (marriage), nor does it compel private parties to do anything at all that they don’t want to do (benefits, discrimination). Equal Protection would have served those ends much better–which is one reason why I suspect the majority stayed away from O’Connor’s approach. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [July 2, 2003, 6:38pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/197 "2003-07-02T18:38:01Z")
> [@](#): > > \*Originally posted by minty green \* > All the other right-to-privacy SDP cases–abortion, reproduction, marriage, etc.–have always applied _strict scrutiny_, which requires a “compelling state interest” to justify a regulation. Actually, now that I think about it, that’s not completely accurate. When the Court reaffirmed abortion rights in _Planned Parenthood v. Casey_, they applied a wierd test that bypassed the usual “compelling state interest” analysis in favor of determining whether the regulation at issue placed an “undue burden” on the exercise of that right. ---
**Author:** ![LosAdri](https://avatars.discourse-cdn.com/v4/letter/l/ad7895/32.png) [@LosAdri](https://boards.straightdope.com/u/LosAdri)\ **Post date:** [July 3, 2003, 12:47pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/198 "2003-07-03T12:47:18Z")
> [@](#): > > \*Originally posted by Apos \* > \*\*this opinion DOES take sides in a culture war, in a way I’m not sure is the most solid of reasoning (equal protection would have been a far stronger ground here: due process rationale is far more sweeping, but its one of those vague penumbry rights that could be used for anything, good or bad) \*\* Yeah, but other than due process rationales, how often do you get to say penumbra, aka cool word numero uno [Previous page](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103.md?page=9)