Wow, Scalia really hates Roe v. Wade, doesn’t he? His opinion is as much about that as it is about Bowers. He does appear to make some good points about the majority’s analysis, however, particularly that they’re doing some sort of low-level SDP scrutiny, not the high-level scrutiny you would expect if private, consensual gay sex were afforded the same constitutional protection as heterosexual sex, childrearing, etc. I’ll have to figure out what’s going on with that later.
This sentance is significant: it could easily be used to suggest that what happened in Canada re: marriage cannot happen here: it must be done legislatively, not judicially.
AND FEAR THEY SHALL!!! 
Sua
Decision in text format, for those who hate PDF’s.
Dewey, with reference to your “fears” comments, I’d draw your attention to point #4. If I were to undertake an exclusivity contract with someone (I manufacture a product they have the exclusive right to sell; I will agree, for good and valuable consideration, to give you the option to buy my lands for sale for the next 30 days, and refuse all other offers during that time period, etc.), then there is a contractual obligation not to act in contravention of that exclusive right. Marriage as defined in American jurisprudence is a contract in which the parties establish a relationship characterized, among other things, by an exclusivity in sexual relations. Ergo, challenges to adultery laws cannot touch on this as precedent, because a legally recognized contract – the marriage vows – obtains.
Worth noting, however, is the point in #3 about public contact. The stereotypical image of the cop arresting two men in a park will still be valid in those states where sodomy has been criminalized – because it’s public conduct.
To me one of the most important points in the Kennedy (majority) opinion is on page six – in which the court gives judicial recognition to the idea that it is not merely a question of sexual conduct but the decision of whether to engage in an intimate relationship (which will likely include sexual relations) that is beyond the law’s power to regulate. And having done this, the court carefully distinguishes between sexual relations between consenting adults and predation on minors, noting that typical 19th Century statutes focused on the latter (pp. 8-9).
Comment to SCotUS watchers: I especially liked Kennedy’s fillip on pp. 16-17 “covering” O’Connor by basing his overturning of Bowers in part on her comments in Casey regarding when stare decisis should and should not be applied.
And, Dewey, it’s critical (in view of our past discussions) to note Kennedy’s recasting of that nebulous “right to privacy” that we’ve disagreed on as a “right to autonomy in personal private decisions” protected by the Fourteenth Amendment – with a shopping list of the types of such decisions that are protected against government prohibition. I think this, as much as the validation of gay civil rights, is an important step forward in jurisprudence.
This scraps the Common Law rationale pretty thoroughly. It’s a great day for consensual sex!
Please do something to erase that image from my brain, and pronto, per favore. And preferably not by replacing it with a more repulsive one.
Actually, such a sentence is common - and not significant. It’s the judicial form of “ignore the man behind the curtain!” Kennedy was trying to assert, in nonbinding dicta, that this decision had no bearing on the issue of gay marriage.
The very fact he felt compelled to add the sentence is evidence that he knows that this decision will have a huge impact on the legalization of gay marriages, and pushes that cause forward greatly.
Yee and Haw.
Sua
As Polycarp noted, the majority of the time the marriage contract includes a monogamy clause. The right to have consensual, adult, private sexual contact protected here would drop a single item from the list of charges against an adulterer. It would not make adultery legal.
I don’t see an arguement about prostitution either(although I support legalizing prostitution and I’m happy if there is one). The opinion specifically states that prostitution is not a member of the class of sexual relations held to be an individual right. Insomuch as prostitution is often a two-part act(the solicitation and the consummation) I can vaguely see an arguement that as long as the both the solicitation and consummation take place in a private setting, then it would be protected. Solicitation in public is still clearly not considered a right, nor is consummation(:eek:**). Still, if the entire act takes place in private then this seems to be a simple recognition that the law can’t prosecute what it can’t prove. This makes no practical difference as far as I can determine.
Enjoy,
Steven
So Reno and Albright are right out, then?
Seriously, I’m glad the decision went the way it did, even though I don’t really have a dog in this fight.
Suffice it to say I think that is an overly generous reading of a sentence that Kennedy pretty clearly intended to mean “and we’re not talking about gay marriage, dammit.”
Again, I disagree. The consensual, adult, private sexual contact is the only charge against the adulterer. And Poly’s reading of that sentence is simply overly generous. Creative, yes, but overly generous. **
Well, like I said, it depends on how literally you take that “or.”
It’s inclusion with “public conduct” raises in my mind the image of streetcorner solicitation. I suspect this ruling could be used to argue that a Heidi Fleiss-type service is constitutionally protected.
Sua, I fail to see how that a) is not significant and b) what your post adds in the way of contradicting or adding to mine, despite being phrased as doing thus.
Dewey, I won’t beat a dead horse. Adultery is not merely private consensual adult sexual conduct, but private consensual adult sexual contact in violation of a previous contract not to engage in it. 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. And that’s where the majority of adultery claims in the courts are normally dealt with, anyway. Anyone have a clue on what the statistics might be in re: persons convicted of the crime of adultery vs. divorces granted on the grounds of adultery?
If adultery is merely a breach of contract then (a) it would not be a crime but a civil mattr and (b) only the wronged spouse (and not the state) could sue. Yes?
Why argue the adultery point, Mtgman and Poly? As far as I could ever tell, adultery (like pre-marital fornicatin’) was already constitutionally protected, part of the SDP right to procreate yourself silly. Today’s decision almost certainly strengthens that conclusion.
I’ve done some poking around and I can’t find a section of the Texas penal code which criminalizes adultery(I used Texas because that’s what I’m familiar with. I would guess it varies from state to state). There is a section in the Family law chapters that adultery may be used as a justification for divorce, but I don’t see adultery listed as an actual crime. This would seem, to me, to indicate that the state doesn’t have a compelling interest in adulterous relationships. The state hasn’t been harmed by adultery, so even if this decision “protects” it from being prosecuted by the state, well, it wasn’t going to be prosecuted anyway! The aggrieved spouse still retains the ability to sue for divorce on grounds of adultery.
So, what, exactly, did this decision change about how adultery is viewed in the eyes of the law? Texas, at least, doesn’t seem to care about it at all in a criminal sense. Will it prevent a aggieved spouse from filing a divorce suit on grounds of adultery? Is exercising a protected right in violation of a contractual agreement not to exercise that right grounds for restricting the other participants in the contract from seeking a remedy for the damage caused by breaking the contract? Or does it invalidate that part of the marriage contract entirely and make it unenforcable?
Some elucidation if you would please. Any state’s laws would be fine as long as you link to them. I’ve had a hard enough time figuring out the IT infrastructure of one state, digging through oher state’s legal databases is a real PITA.
Enjoy,
Steven
It is not significant, first of all, because it is dicta. Dicta is language that is not germane to the ruling in the case, added as means of explanation of exposition. It is not precedent.
Second of all, it is not significant due to history. Time and again, judges have tried in dicta to limit the import of their holding, trying to discourage the logical extensions of their reasoning. It rarely works.
And this decision does legal logically to same-sex marriage. Kennedy addressed the issue not in terms of the right to engage in the conduct (sodomy), but in terms of the right to order our personal lives and enter into intimate relationships. The ban on same-sex marriages infringes on those rights.
BTW, O’Connor tried the same thing in dicta in her concurrence: “Unlike the moral disapproval of same-sex relations - the asserted state interest in this case - other reasons exist to promote the institution of marriage beyond the mere moral disapproval of an excluded group [thereby creating a valid state interest].”
But those same state interests are also served by same-sex marriages.
Sua
minty, the adultery point needed to be addressed because it was part of the “look what this would legalize!”. I guess I fell for it because I was under the impression that there were actual legal penalties, in a criminal sense, for adultery. After looking at the Texas statutes, and your mention of protection of adultery already, I’ve realized this seems more like a boogeyman than a real concern.
I’d be happy to discuss what the dire ramifications Dewey hints at regarding prostitution are. Still don’t see a case for necrophilia though.(gonna have to leave that one in the deep freeze for a bit I guess)
Enjoy,
Steven
Some states do, or did, criminalize adultery. I think it’s still on the laws in New York – it was in 1997 when I left. I merely tried to address Dewey’s point regarding precedents that this case sets.
Frankly, I remain amazed that Kennedy went for the broader grounds, and even made a point of rejecting the narrower grounds as justifiable, instead of incorporating them as a second bulwark to his argument.
And I would very much like to see the lawyers of the board address the “right to autonomy in personal decisions” that Kennedy spelled out. It sounds very much to me like he’s tackling the “right to privacy” question, admitting that such a right does exist, and trying to put some limits on it – and rechristening it in token of that redefinition. Is that in fact how you read it?