# 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:** 20\ **Page:** 4
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [June 26, 2003, 8:16pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/61 "2003-06-26T20:16:30Z")
I just read the decision. The majority flat-out overrules \Bowers\, and Justice Scalia’s dissent clearly identifies all of the “horrible” consequenses that this may have. His decision (at 4-6) points out that in reliance on \Bowers\, courts have upheld bans on sales of sex toys, the military ban on gays, and sex outside of marriage. He opines that: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are likewise only sustainable in light of \Bowers’\ validation of laws based on moral choices.” While I don’t agree that things like bestiality cannot be prohibited without \Bowers\, Scalia’s dissent certainly gives a road-map to those who wish to decriminialize the more socially accepted items on his list. (Masturbators and fornicators, you have nothing to lose but your chains!) In the majority opinion, Justice Kennedy states that the case before the Court does not involve minors, non-consenting parties, public conduct, prostitution or “whether the government may give formal recognition to any relationship that homosexual persons may wish to enter.” That statement, however, merely defines the limits of the direct holding of this case, and does not give any clear signal as to how the Court would decide in any of those situations. The major issue that I see this case influencing is gays in the military. As I read this case, the military’s rules requiring discharge based on private, consentual homosexual conduct cannot be sustained given reasoning why Texas’s law criminializing private, consentual homosexual conduct was overturned. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [June 26, 2003, 8:39pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/62 "2003-06-26T20:39:52Z")
Also, New York State law still criminalizes [Adultery](http://assembly.state.ny.us/leg/?cl=82&a=64) as a class B misdemeanor. N.Y. Penal Law 255.17 provides: > [@](#): > > A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. ---
**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 26, 2003, 8:47pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/63 "2003-06-26T20:47:50Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*If your construction (which does seem closer to the letter of the ruling) be admitted, then, yeah, the crime of adultery might well be found unconstitutional. But it would remain a tortious act and grounds for divorce as a _civil_ wrong. \*\* I agree 100% with this. I was under the impression that you were saying this ruling wouldn’t decriminalize adultery in those states which make adultery a criminal offense. **Minty** : I’d love to see a cite for the proposition that the reproductive-choice rationale of _Griswold_ and its progeny extends to permitting marital infidelity. I mean, really – wouldn’t that argument also make gigolos legal? (Please do tell, 'cause I’ve been unemployed for awhile, and I may need a new line of work). ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [June 26, 2003, 8:53pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/64 "2003-06-26T20:53:02Z")
> [@](#): > > \*Originally posted by Billdo \* > The major issue that I see this case influencing is gays in the military. As I read this case, the military’s rules requiring discharge based on private, consentual homosexual conduct cannot be sustained given reasoning why Texas’s law criminializing private, consentual homosexual conduct was overturned. I’m not so sure, **Billdo.** Sodomy is a criminal act under the Uniform Code of Military Justice, and I think that, probably, this decision won’t cause that provision of the UCMJ to be held unconstitutional. The military will argue that sodomy is illegal under the UCMJ because it is “detrimental to discipline and good order” in the military ranks, not because of moral disapproval. Given the courts’ deference to the military’s judgment on such matters, I wouldn’t be surprised if the military’s sodomy prohibition survives. I’m sure we will have a case soon, and I’ll be interested to see what happens. If the UMCJ’s ban on sodomy survives, discharge for homosexuality will survive, as the soldier/sailor will have a propensity for “criminal” acts. Sua ---
**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 26, 2003, 8:53pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/65 "2003-06-26T20:53:49Z")
> [@](#): > > \*Originally posted by Mtgman \* > **I’d be happy to discuss what the dire ramifications Dewey hints at regarding prostitution are.** I’m sympathetic to the notion of decriminalizing prostitution, particularly in controlled bordello type situations. I just think that decision is one that ought to be made by the people of a state via their elected representatives, rather than by judicial fiat. \*\* > [@](#): > > Still don’t see a case for necrophilia though.(gonna have to leave that one in the deep freeze for a bit I guess)\*\* It depends on if you see a corpse as something more than a dead hunk o’ meat and thus due a certain amount of respect (e.g., you need consent of some kind), or if you see a corpse as nothing more special than a fist full 'o Vaseline. If the latter, then today’s ruling certainly would appear to extend to necrophilia. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 26, 2003, 9:01pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/66 "2003-06-26T21:01:19Z")
So what if it _does_ decriminalize adultery in some states? Are those laws even enforced anyway? If adultery is decriminalized under this decision then that’s a _good_ thing not a bad thing. Scalia’s laundry list of inferences is rather specious on several counts. He lists several things which are not applicable (polygamy is not a sexual act. Bestiality does not involve consenting adults) or which _should_ be protected anyway (masturbation for instance. Is it actually illegal to beat off in some states? If such a law could actually be enforced then 75% of the population would be criminal recidivists, including 100% of all males). Kudos on the decision, and I’m glad they went the due process route. This should help to solidify the right to privacy. How ironic for the assbag that called the cops on those guys in the first place that his malicious little prank became the impetus for a definitive and long overdue victory for gay rights. ---
**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:** [June 26, 2003, 9:17pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/67 "2003-06-26T21:17:58Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > **Minty** : I’d love to see a cite for the proposition that the reproductive-choice rationale of _Griswold_ and its progeny extends to permitting marital infidelity. [quote] It ain’t expressly about adultery, but here’s the pivotal language from _Eisenstadt v. Baird_: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” ---
**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 26, 2003, 9:19pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/68 "2003-06-26T21:19:44Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*So what if it _does_ decriminalize adultery in some states? Are those laws even enforced anyway? \*\* Just because you think adultery should be non-criminal (and I happen to agree) doesn’t mean others share your worldview. Part of living in a democratic system means accepting that the majority will pass laws in accord with a moral code we do not all share. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 26, 2003, 9:25pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/69 "2003-06-26T21:25:16Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*Just because you think adultery should be non-criminal (and I happen to agree) doesn’t mean others share your worldview. Part of living in a democratic system means accepting that the majority will pass laws in accord with a moral code we do not all share. \*\* Those laws also have to accord with the constitution and the SC has now ruled that private consensual sex is protected by the Constitution. I know that you don’t agree that there is a constitutional right to privacy but that’s an _interpretation_ isn’t it? This SCOTUS has ruled otherwise. ---
**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 26, 2003, 9:26pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/70 "2003-06-26T21:26:04Z")
[QUOTE] \*Originally posted by minty green \* \*\* > [@](#): > > It ain’t expressly about adultery, but here’s the pivotal language from _Eisenstadt v. Baird_: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” \*\* I’m aware of the language creating the bear-or-beget right. I just think it’s spurious to suggest this would be extended to adultery without case that discusses that subject matter (even obliquely). I mean, really? If a woman wants to get preggers, does the above language mean she can call up [Fred Garvin](http://www.dailywav.com/0300/garvin2.wav)? ---
**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 26, 2003, 9:29pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/71 "2003-06-26T21:29:31Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*Those laws also have to accord with the constitution and the SC has now ruled that private consensual sex is protected by the Constitution. I know that you don’t agree that there is a constitutional right to privacy but that’s an _interpretation_ isn’t it? This SCOTUS has ruled otherwise. \*\* Oh, I agree that this ruling paves the way for constitutionally-protected adultery. I just happen to think that is an unintended consequence of this ruling. If you were to ask the justices if they intended to decriminalize adultery, I think they’d deny it to their dying breath. I also think that a lot of people who praise the idea of allowing homosexual sodomy would balk at decriminalizing adultery. Which, of course, is why these things are best left to the legislature. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [June 26, 2003, 9:38pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/72 "2003-06-26T21:38:37Z")
For what ever it might be worth, the State of Iowa (not exactly your hot bed of the sexual revolution or particularly receptive of the “homosexual agenda,” what ever that might be) repealed the criminal statute on both adultery and sodomy (although preserving forcible sodomy as a species of sexual abuse) when the criminal code was revised in 1976, and abrogated any civil cause of action for alienation of the affections of a spouse by court action in 1981. Conservative, stolid and moralistic Iowa got the police out of the bed room some 20 years ago and more. It seems to me that all you have to do is read Scalia’s dissent to get a deep sense of just how reactionary his judicial philosophy is. I read Justice Thomas as eager to give the legislature one last chance to eliminate the criminal sanction for adult, consensual, private sexual behavior. It’s nice to know that Trent Lott now anticipates the end of Western Civilization. ---
**Author:** ![Susma\_Rio\_Sep](https://avatars.discourse-cdn.com/v4/letter/s/35a633/32.png) [@Susma\_Rio\_Sep](https://boards.straightdope.com/u/Susma_Rio_Sep)\ **Post date:** [June 26, 2003, 9:43pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/73 "2003-06-26T21:43:15Z")
For anyone interested, this just in: [http://story.news.yahoo.com/news?tmpl=story&cid=584&ncid=584&e=1&u=/nm/20030626/pl\_nm/court\_sodomy\_dc](http://story.news.yahoo.com/news?tmpl=story&cid=584&ncid=584&e=1&u=/nm/20030626/pl_nm/court_sodomy_dc) Excerpt: > [@](#): > > \*\* WASHINGTON (Reuters) - State sodomy laws that make it a crime for gays to have consensual sex in their own bedrooms violate constitutional privacy rights, the U.S. Supreme Court (news - web sites) ruled on Thursday in a landmark decision. > > The nation’s highest court by a 6-3 vote struck down a Texas sodomy law, a decision applauded by gay rights advocates as a historic ruling that overturned sodomy laws in 13 states. > > By a separate 5-4 vote, the Supreme Court took the rare step of overruling one of its own decisions, one in 1986 that upheld a Georgia sodomy law and declared homosexuals have no constitutional right to engage in sodomy in private. \*\* The news report indicates sodomy as consisting in anal or oral sex; and I always thought that it consisted in anal sex only. Excerpt: > [@](#): > > \*\* The 30-year-old Texas “homosexual conduct” law makes it a crime for same-sex couples to engage in oral and anal sex, even if it is consensual and occurs in the privacy of a person’s bedroom. Violators face a maximum punishment of a $500 fine. \*\* Congratulations to gays and lesbians! Susma Rio Sep ---
**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:** [June 26, 2003, 9:55pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/74 "2003-06-26T21:55:00Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > If a woman wants to get preggers, does the above language mean she can call up Fred Garvin? I have no idea who you’re talking about, and your link doesn’t work, but I believe the above language means the state does not get to poke its head inside that bedroom absent a compelling state state interest. If you’re still referring to prostitution, I believe an argument could be made that the regulation of prostitution is indeed a compelling state interest. Seeing as how no serious attempt has ever been made to apply SDP to prostitution, that’s probably an open question. But of course, you know as well as I do that the Supreme Court is not about to legalize prostitution, nor any of the other items in Justice Scalia’s list of horrors. Well, I’m pretty sure self-love is now constitutionally protected, but the rest of that list is just hysterical posturing. It will be interesting to see what this does with the military’s anti-gay policies. I suspect they’ll be pretty flexible when it comes to the military, but that’s an issue for another day. ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [June 26, 2003, 9:57pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/75 "2003-06-26T21:57:42Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > **I’m sympathetic to the notion of decriminalizing prostitution, particularly in controlled bordello type situations. I just think that decision is one that ought to be made by the people of a state via their elected representatives, rather than by judicial fiat.** I agree. I don’t care for “judicial activisim”, the so-called “legislating from the bench”. I’m not sure the legislatures will broach the subject though because they have to worry about re-election. Even so, you claimed this decision could have ramifications for prostitution laws. Care to elaborate? Does it fall under the type of scenario I mentioned above? If both solicitation and consummation are dealt with in private, then it can’t be criminalized? i.e. no more Heidi Fleiss type prosecutions on grounds of evidence of these transactions unless those transactions took place in public? Because the majority of prostitution, as it is today, takes place in this type of scenario. The “streetwalker” is rarer than the “massage parlor” and “escort service”. Escort services and massage parlors were often “fronts” for prostitution. Is it your contention that this ruling may make it unnecessary to have this pseudo-legitimate “front”? That if a private place of business is established and all the negotiating and consummating happens in private, that(even if documentation of the nature of the business being conducted later surfaced) this setup would be immune to criminal prosecution?\*\* > [@](#): > > It depends on if you see a corpse as something more than a dead hunk o’ meat and thus due a certain amount of respect (e.g., you need consent of some kind), or if you see a corpse as nothing more special than a fist full 'o Vaseline. If the latter, then today’s ruling certainly would appear to extend to necrophilia. \*\* Well, there would seem to be more hurdles to the law than that, even if you take the “hunk of meat” view. Ownership of the corpse would be a tricky deal. Does a widow inherit the physical body to do with as she pleases if her husband passes away? If not then she would certainly be committing misuse of property. After all, it is legal for me to buy vaseline and wank as much as I want, but if I start sneaking vaseline from your cabinet, then I’m in trouble. I guess a husband or wife could claim their newly deceased spouse’s body(assuming the body can be considered property and not simply waste) and have a few last go-rounds before the funeral. I would also see the state as having an interest here. Necrophilia could be criminalized(and probably is) under any number of public-health statutes. Plus the fact that private residences don’t often have the facilities necessary to preserve corpses and prevent the spread of disease. Someone would have to turn their home(probably their bedroom) into a morgue and then sit and wait for their spouse to keel over(and hope it wasn’t in some messy accident that would ruin the body), claim it as property and then do the nasty with it for a pretty short timeperiod before they ran afoul of health statutes that mandate putting it in the ground. Just don’t see this becoming possible, either practically, or legally. Too many barriers and they’re too high. Enjoy, Steven ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [June 26, 2003, 10:00pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/76 "2003-06-26T22:00:22Z")
**Sua Sponte** , rather than hijack this thread onto the issue of the effect of _Lawrence_ on Gays in the Military, I’ve started a new [thread](http://boards.straightdope.com/sdmb/showthread.php?threadid=193678) on the subject and am replying to you there. ---
**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 26, 2003, 10:09pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/77 "2003-06-26T22:09:01Z")
> [@](#): > > \*Originally posted by minty green \* > **I have no idea who you’re talking about, and your link doesn’t work, …** You need to bone up on your original-cast SNL sketches. Next thing you know you won’t be recogizing Monty Python and Simpsons references. And I think that’s a bannable offense. \*\* > [@](#): > > But of course, you know as well as I do that the Supreme Court is not about to legalize prostitution, nor any of the other items in Justice Scalia’s list of horrors. \*\* It doesn’t have to. I think the lower courts will be forced by the very broad language in this opinion to legitimize things well beyond homosexual sodomy. That’s the way it happened with the busing decisions – the more outrageous cases were not the ones decided by the Supremes, but rather the ones decided by the Circuit Courts. ---
**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 26, 2003, 10:19pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/79 "2003-06-26T22:19:08Z")
> [@](#): > > \*Originally posted by Mtgman \* > \*\*Does it fall under the type of scenario I mentioned above? If both solicitation and consummation are dealt with in private, then it can’t be criminalized? i.e. no more Heidi Fleiss type prosecutions on grounds of evidence of these transactions unless those transactions took place in public? \*\* That’s pretty much exactly what I had in mind, and I think that’s a very real possibility. Like I said, it depends on how literally you read that “or.” Re: necrophilia – I agree that it’s highly unlikely. Plausible, yes, but not terribly likely. I do think it’s kind of sad that a state would have to rely on public health concerns and property rights to outlaw necrophilia. It seems to me the primary reason for doing so is not some health or ownership concern, but a palpable moral sense that fucking a corpse is _wrong_. That alone ought to be reason enough for such a ban. ---
**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:** [June 26, 2003, 10:21pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/80 "2003-06-26T22:21:11Z")
Ah, but the Supreme Court had itself _approved_ the concept of busing. The Supreme Court has not approved prostitution, necrophilia, pedohilia, etc., etc., nor will it do so. If a trial court somewhere is stupid enought to declare that _Lawrence_ makes means prostitution is a constitutional right, that court will get squashed like a bug by the appellate courts and, if need be, the U.S. Supreme Court. It defies reality to believe otherwise. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 26, 2003, 10:30pm UTC](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103/81 "2003-06-26T22:30:35Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*I found Thomas’ dissent interesting In other words, it’s a stupid law but stupid laws can be allowed by the Constitution. \*\* You know, I agree with the majority in this case, but god help me- I find Thomas’ argument compelling, too. He makes a good point, and I respect him for that. Scalia is beneath contempt, however. What is the “NIKE” case? [Previous page](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103.md?page=3) [Next page](https://boards.straightdope.com/t/lawrence-garner-v-texas-decision/184103.md?page=5)