Lawrence & Garner v Texas -- Decision?

Great Debates
102

Fascinating. Here’s how this affects my little corner of Greater America.

As I mentioned in another thread, our Senate just approved (last Sunday) a general revision of our Penal Code (a brand new Penal Code, if we want to be truthful) wherein consented adult sodomy was struck from the crime books. The House could not have possibly passed it by Wednesday, the last day for bill passage in this term, so they’ll save it for the Fall term.

Boy was that a ^%$# freight-train-wreck of a passage. Everyone was in CYA mode and of course all our preachers were spewing forth prophecies of God smiting the Senate, the House, the intellectuals, the legal community, the Commonwealth, the people at large, and our little dogs too. Hardly anything in the debate made real sense, as everyone was trying to be able to claim they meant two different things at once.

With this SCOTUS decision, the House breathes a giant sigh of relief, at not having to deal with the specific issue. Still, the preachers are already demanding that we re-insert the sodomy statute, in an extraconstitutional act, just to make the statement that we’re against “the homosexual agenda”. Small problem, though: urs was a general sodomy statute, not a gay-specific one. And I’m willing to bet good money that over half the people in the street had no idea that this meant that it was a felony, getting you 10 years, to perform cunnilingus on your wife :rolleyes: But the thing is, in order to communicate that to THIS public, you would have to use the vulgar term “mamar chocha” (eating pussy), or else they will never understand.

Also, maybe now the House can deal with evaluating and passing the OTHER 311 articles of the new penal code on the crimefighting merit of the amendments (some of which are IMO quite half-arsed), rather than focus on this one thing.

One probable unexpected consequence of this, that I have already heard spoken, is that there may be a rush to raise our (until now only hetero) age-of-consent (currently 14). After centuries of finding it perfectly OK for teenage boys to seek out teenage girls who put out, and even for teenage girls to have sugardaddies, suddenly when it’s possibly same-sex couples, nobody is mature enough to make the decision.

One ironic bit about this here in PR is that many of our louder “social liberals” tend to be highly nationalistic decriers of “American Cultural Imperialism” and advocates of having PR pick and choose which aspects of being in US orbit it pleases us to observe ; while many of our louder Christian Fundamentalists tend to be highly pro-American and even pro-Statehood. And now it’s the United States Constitution as interpreted by SCOTUS that resolved the issue.
There is also a parallel thing going, a revision of our Civil Law Code (Yep, like Louisiana, we go the Roman way). Wherein “affective bonds” are being introduced into the definitions of what does a family make. Y’all can see where some people “fear” that leads. That one may not get passed before the next general election.

103

Heck, who uses “grounds” for divorce these days anyway? The no-fault divorce laws have turned that notion into little more than a quaint little subchapter in “history of the law” books.

104

Yeah, but you miss the point. Why is it against public policy? Because it’s considered immoral. And 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 think on that ground our taxidermist will find himself with a new client.

More’s the pity, because while there may arguably be a public health rationale for laws against necrophilia, I have a difficult time believing that such laws are driven by public health choices. No, those laws reflect a moral choice, a general belief that sex with a corpse is simply wrong. Today’s ruling forces those who favor proscriptions on necrophilia to dishonestly claim that such laws exist for some reason other than the reason that actually caused their passage.

Yes, they’ve told us exactly what they are protecting: “private sexual conduct,” subject only to the four caveats mentioned at the front of the paragraph. That is incredibly broad language. It is foolish to pretend otherwise.

105

“Can privacy be used to strike down taxes or business regulation?”

The State and Federal governments are explicitly empowered to tax and to regulate commerce in their respective Constitutions (and the municipalities, being creatures of the State, are empowered by their parent jurisdiction). Generally so in many cases, specifically so in others, as an inherent power of the government in yet others. The Income Tax, heck, that was explicitly written into the Constitution a hundred years ago.
IANAL, but if it is explicitly in the Constitution (and not overridden by later amendment), how could it be unconstitutional?

People Of America: You have to pay taxes. Deal with it.

106

OK. But I ain’t fucking any dead people. Even if Scalia says I can. I’m still not going to. Doesn’t matter whether they’re dead guys or dead gals. This is not a gender issue. Maybe it could be a privacy issue, I’m not a lawyer, so I’m not sure…

Hey, Dewey! If I’m alone with a corpse, I’m still alone, right?

107

elucidator: Just be sure that Haley Joel Osment kid isn’t around. He sees dead people.

108

As long as he doesn’t “know” them… :wink:

109

What I find fascinating is Thomas’s separate dissent. From what I can tell (and please correct me if I’m wrong), separate concurrences and dissents are generally used when the “general” opinion doesn’t cover everything you want to say, or when you want to disagree with particular parts (O’Conner comes into mind twice; she had a separate concurrence in the recent sex discrimination case, which was unanimous, partly because she herself was quoted by the side the court ruled against, and she had one in this case to discuss the grounds she would have liked the majority to rule on).

Thomas’s does two things: first, it brings up his opinion that the Court lacks the authority to force the law out of the books. That’s all well and good, but could have been put into, or covered, in the main dissent. What I find infinitely more interesting is the other thing his dissent did: put on record his personal opposition to the law in question.

I wonder if he found Scalia’s dissent to smack of bigotry, so he felt he had to distance himself from that…?

110

He joined in Scalia’s dissent. That means he agrees with it. He merely had something else to add–something else that reflects well on him and his judgment as a person, if not his judgment as a judge.

111

And, I’ve been given to understand, unusual for Thomas – it’s been my impression that he tends to join in opinions by Scalia and Rehnquist, whether majority or dissent, and to a lesser extent those by O’Connor and Kennedy, and rarely writes anything “voluntarily” (as opposed to his fair share of majority opinions).

112

minty: I know that. I was merely theorizing that he might have felt moved to add on what he did in order to distance himself from Scalia’s venom EVEN IF he agreed with him and Rehnquist on the legalities. He wins both ways: he shows his distaste for the law while still being able to express his belief in its Constitutionality - and even better, NOT necessarily for the rather wild-eyed reasons Scalia gave.

Another possibly interesting tidbit: the (admittedly non-scientific) polls on CNN and FoxNews are both about this development. CNN’s poll is about 70/30 in favor of the Supreme Court decision, possibly supporting the accusations of liberalness towards the channel. On Fox, the majority is opposed to the decision (not surprisingly), but the margin is much smaller; about 44/54. One possible clue is in how the options are worded: either yes, you agree with the decision because “the government should stay out of the bedroom,” or disagree because “it’s deviant behavior.”

I wonder if this issue is dividing conservatives based on two of their strongest tenets: Christian values vs. a belief in smaller, less intrusive government (plus the fear that the next law could be aimed at THEM).

And I also wonder what O’Reilly will say about all this (not that I care enough, or have the stomach to, watch his show)…

113

About 7/8th of Scalia’s dissent is reasonably thought out, persuasive, and raises some really interesting points about the manner in which the majority is written (for example, is this a liberty interest or not, and what exactly is the level of scrutiny being applied), then he throws in the whole “homosexual agenda” thing which really does make it look like he is biased in exactly the way he accuses Kennedy of being. I think Thomas threw in his dissent to distance himself from that part, to make clear that what the real objection is in the dissent is that the decision does create a new privacy right through completely undemocratic means, and that’s not the proper thing for 9 unelected and unfireable judges to do.

I suspect that gay marriage will be an issue that will come up within the next 5 years. If you take Loving and Lawrence together, it is really hard to see that a state prohibition against gay marriage survives constitutional challenge.

If O’Connor announces retirement during Bush’s term (as is the rumor), you are going to see one of the nastiest battles in the history of the U.S. Congress. It will make the Clinton impeachment and trial look like a tea party. Because Bush is going to nominate someone like William Pryor as a thumb in the eye to the current court.

114

I never mentioned the Federal income tax. But is repeal of state or local taxes really that much of a stretch?

Powers not delegated to the Federal Gov’t by the Constitution are reserved to the States. In this most recent decision, the Supreme Court felt empowered to override a State sodomy statute in the name of privacy. What’s to stop them from using this precedent to override State tax laws that are just as, if not more intrusive & invasive?

FTR: I’m glad sodomy statutes have been eliminated…but I’m not sure the ends are justified by the means. Alot of posters in this thread are happy with the end result but aren’t weighing the ramifications of such judicial activism. I, for one, am a little uncomfortable with 9 unelected attorneys with lifetime appointments legislating from the bench…even when I politically agree with the outcome.

You’ve probably never been audited, but it’s an embarassing violation of privacy and almost as ugly as the mental picture I got just imagining what the Texas Rangers saw upon bursting into Garner & Lawrence’s bedroom.

115

It was totally worth it for him to write a separate opinion, just to read him calling the law “uncommonly silly”. ROFL. Made my day. I love it when Justices give us absolute candor like that. In fact, this paragraph here is exactly the attitude I wish our Supreme Court justices would take:

Imagine, letting the rule of law guide your decisions, rather than your allegiance to one or the other side of a social agenda. And taking Kennedy’s wordy pseudo-intellectual phrase (that last quoted sentence) out of context makes it look quite silly. Anyone who can put together a sentence like that should be writing technobabble for Star Trek episodes. All in all, probably the best two paragraph dissent I’ve ever read.

116

You know, I wonder: if the Supreme Court decision had gone the other way, purely on the basis of, say, Thomas’ dissent, or the less vitrolic parts of Scalia’s - in other words, on actual legal principles. Conservative groups, and individual conservatives, would undoubtedly have been hailing it as a victory for “traditional values” in America, strongly implying, if not outright stating, that the Supreme Court had advanced the cause of proclaiming sodomy as an abomination before God and putting those dirty, dirty faggots in their place. Obviously, this would not have been the case, but who would’ve stopped them? Who would’ve set the record straight? No one, that’s who, certainly no conservative.

My question is, what effect would this have had on public opinion in general, and the advance of gay rights? Would gay lobbying groups have had any CHANCE to advance their cause when everyone believes that the Supreme Court just proclaimed gays to be bad? Would they have had any opportunity at all to work through the legislative system with that kind of burden?

I realize some will say that’s fine, that majority rules, and that’s the way it should be. Or that it’s not the Court’s fault, and that this probable scenario doesn’t change the rightness or wrongness of the Court’s decision. And those statements probably have merit. It just feels wrong, but God only knows how that sort of thing can be fixed or prevented. Maybe it can’t. Maybe this properly belongs in the “fighting ignorance” thread.

Since this is a little stream of consciousness, I apologize in advance for missing anything…

117

Well, Leaper, presumably Scalia would have written the opinion in that case. Nothing would have stopped Thomas from mentioning his disapproval of the law in a concurrence, just as he actually did in his dissent, to prevent the wrong idea from being sent to the public. Of course, calling something “uncommonly silly” is the sort of language more traditionally used in a dissenting opinion, but then again Thomas was bothered enough to write that dissent so you never know.

In any case, it isn’t the SCOTUS’ job to play the politics of appearances. Their concern wouldn’t be whether the public misinterpreted the decision, or went beyond it’s true scope, their concern would be only with how lower courts read the decision. Judges being legally trained, they would be able to read out any dicta about homosexual agendas and narrow this hypothetical holding to what it really said.

118

RexDart: Thanks for the response. I think I’ve crystallized in my mind a little of what was bothering me, that I touch on in my previous post a bit: that an upholding of the law would’ve sent such a strong message on the moral rectitude of gay-specific sodomy laws (especially considering what Scalia wrote in the foam-mouthed sections of his dissent) that it would’ve been much more difficult, if not near-impossible, to take the legislative tack that those like yourself, who believe the Court didn’t follow the law as it stands, suggest should be taken instead. IOW, I think an upholding would have been a de facto endorsement by the highest court in the land of anti-gay bias.

Perhaps I’m mistaken. Maybe it wouldn’t have turned out that way. Or maybe that’s simply the consquences of having our current “majority rules” democratic government and judicial system, and should simply be chalked up to part of the bad that we have to take with the good. But I think that’s one of the things that contributed to my feeling of wrongness.

119

Imagine having the breadth of mind to understand that coming to a different conclusion about the scope and meaning of “due process” is something other than naked social engineering.

120

Thomas’ dissent is interesting, true, but one has to wonder at his “strict constructionist” implication: he is not empowered to deliver the just result because no “right to privacy” is explicitly spelled out in the Constitution.

One has to wonder where he found the explicit text that empowered the SCUSA to thrust itself into the 2000 election on grounds that are somewhere between speculative and imaginary.

I am reminded of Goldwater’s claim that he felt compelled to vote against the Voting Rights Act because of his “state’s rights” convictions, even though he personally felt the cause was just and needful.

To my mind, this is one of the crucial flaws in conservative thinking: the tendency to put the letter of the law above the purpose of the law, i.e., justice.

Either that, or he is pointing out what a dandy Chief Justice he would make, what with his impeccable “strict constructionist” credentials, and all.

121

Sure, IF a given state or local tax or trade-regulatory statute IS as intrusive and invasive as a consenting-adult sodomy statute. That would need to be proved in court. And it would not result in the abolition of state, local or federal taxes, but in changing rates and procedures. Heck, they could say that from now audits come under the 4th Amendment and require a court warrant – that’s not that hard to get.