It says in the decision the right of the police to be in there was apparently not in dispute. The police believed a crime was happening at that moment in the house, which excuses them from the Exclusionary Rule.
Yes, and they should change by the ordinarly legislative process. If a majority of Texans have no moral objection to homosexual sodomy, then it should be no problem to repeal the law.
I think this decision clearly indicates that moral objections are an insufficient basis with which to regulate sexual conduct. Which followed through to its logical conclusion takes us to some fairly nasty places.
I just wanted to note that I largely agree with Hamlet’s analysis above. In fact, I twice attempted to post the nearly same thing last night. (Damn hamsters.) Scalia is largely correct that the majority omitted all the usual considerations for a substantive due process analysis–compelling state interest, fundamental right, ordered concepts of liberty, etc. Nearly all the analysis is devoted to explaining why the Court got it wrong in Bowers, with only a couple of paragraphs on why it’s getting it right this time.
It’s actually impossible to tell whether this is a strict scrutiny analysis, or low-level scrutiny, or what. That is, I’m sure, quite intentional. The majority was certain that the sodomy laws had to go, but also very cognizant that the wrong opinion could open Pandora’s box. It’s somewhat like Bush v. Gore and Brown v. Board in that respect–resolving the specific issue before the Court, but avoiding the appearance of settling anything else. That is, it’s very easy to cite Lawrence for the proposition that sodomy laws are unconstitutional, but very difficult to apply it to anything else with any kind of certainty.
Hamlet:
Reference representation reinforcement, above, for a reason that some laws by their unfairness might be unconstitutional.
As Justice Kennedy said, the liberty interests at stake are far broader than merely the right to a particular sexual act. To ask whether there is a right for homosexuals to “commit” sodomy is as demeaning as asking whether couples have a “fundamental right” to commit sexual intercourse. It’s more than controlling sex, it’s controlling an intimate relationship.
Exigent circumstances exception, I think. A neighbor with a grudge faked a call and said that someone in Lawrence’s aparment had a weapon and was “going crazy.” In any event the legality of the police entry wasn’t questioned.
As Hamlet points out, their duty is to overturn unconstitutional laws. Which reminds me of my favorite anecdote about Justice Oliver Wendall Holmes, Jr.:
After having lunch with Judge Learned Hand, Holmes entered his carriage to be driven away. As he left, Judge Hand exclaimed: “Do justice, sir, do justice.”
Holmes ordered the carriage stopped. “That is not my job,” Holmes replied. “It is my job to apply the law.”
John Lawrence sure didn’t consent to be “governed” in his love life by the State of Texas
Just a nitpick, but wouldn’t it be better (and more representative of changing morality of a society) if this were done in the Legislature rather than the Courthouse? Not to say I don’t agree with the decision (the reasoning I have some problems with).
It is my understanding that the Huston police went gang busting into the Lawrence or Garner (or both) apartment in response to a report of a brawl going on in there which featured a gun. I don’t know but I suspect that the report was that shots had been fired. I would think that the bust in could be justified, warrant or no warrant, under the exigent circumstances/ public safety/ emergency situation carve outs from the search and seizure privilege. While it is apparent that the police may not have had a warrant basis for entry, they may have had probable cause to conclude that there was an ongoing offense and that entry was necessary to protect people who were in there. I’m not offended by the police entry. I would like to know more about the informant who made the “domestic dispute with a gun” call to the police.
As far as Justice Thomas’s “Uncommonly silly” comment goes, some might think that the fact that a statute is uncommonly silly goes a long way in establishing that a rational legislator could not see the statute as bearing a reasonable relationship to a legitimate governmental interest.
I’m going with Gadarene here. I think it would have been better if this had been handled legislatively, but in the face of apathy from the public(which is not at all the same as public support for the law. Many Texans didn’t even know the law existed) and inertia on the part of the legislature, I’ll support the Judiciary dragging Texas into the 21st century.
If it had this effect, then it inherited this effect from the Planned Parenthood v. Casey decision.
I still don’t see it. I saw it more as an acknowledgement that morality changes and laws based on morality should be subject to review when such shifts occcur. From the decision
Enjoy,
Steven
Like where?
I’m willing to be convinced that morality is necessary in the enactment of laws to regulate sexual conduct, but I’m leaning pretty strongly against the idea.
Pedophilia and bestiality it seems to me, can be ruled illegal without recourse to moral issues ( lack of informed consent for example and potential for harm, both physical and psychological ). Of the other possible issues necrophilia probably comes closest to crossing the line. Then again having sex with somebody elses dead relative is, I’m sure, a violation of some property right or another and having sex with your dead wife, while disgusting as all get out, is probably harming no one ( possible public health issues aside, which might be adequate to make it illegal ). Meanwhile I can’t for the life of me think why the government, any government, should have the right to regulate the sexual conduct of two ( or more ) consenting adults. Adult incest, adultery - Pretty nasty IMO. But harming no one except possibly those that voluntarily consent to it.
I quite frankly don’t think I trust community standards to be the judge. In cases like these I believe I would prefer to err on the side of protecting the minority from the caprices of majority opinion.
So convince me otherwise :).
- Tamerlane
Upon actually having time to read the decision, I find myself having numerous thoughts, and a few questions.
First, I think the majority opinion is dead on with the observation that the Bowers decision exhibited a “failure to appreciate the extent of the liberty at stake,” in essence saying that the court in Bowers was asking the wrong question, and therefore the answer it got wasn’t applicable to the real matter at issue. If I recall correctly, Blackmun made a somewhat similar point in the dissent to Bowers. I also note that Scalia’s complaint in the dissent that the majority nowhere affirms a “fundamental right” to engage in homosexual sodomy completely disregards this extremely prominent line of reasoning.
Second, I find myself agreeing with Scalia on one point (this shocks me more than any of you, I can tell you) - namely, that this ruling is entirely likely to lay groundwork for challenges to laws restricting marriage to opposite-sex couples. Of course, unlike Scalia, I see this as a point in its favour.
Third, while I am sympathetic to worries about legislating from the bench, I respond that Polycarp’s most recent and eloquent post in this thread concerning liberty expresses my own thoughts. Courts erring on the side of protecting personal liberties is much to be preferred to the alternative.
Fourth, I find myself rather baffled by the hand-wringing both in Scalia’s dissent and by some posters in this thread concerning the dubious status this places legislation imposing sexual “morality”. I mean seriously - if there is actually any harm being done by a practice, the state will be readily able to provide a compelling interest in restricting it, and if no harm is being done, mind your own bloody business already. That the state will now no longer be able to outlaw masturbation is a good thing! Remember, when masturbation is outlawed, only outlaws…oh, never mind. 
Fifth, I found rather amusing the repeated phrase “does not seem to have been questioned” with regards to the right of police to enter in both the Lawrence and Hardwick cases. Unlike Blalron, I take this not to be indicating that the police did have grounds to enter, but a veiled reference that in both cases it was obvious that they did not, but that the defendents had ignored that fact in order to challenge the constitutionality of the statutes in question, rather than merely win their own individual cases on Fourth Amendment grounds.
Finally, some questions:
How binding is the reasoning in O’Connor’s concurring opinion? My guess is not very. But I guess the real question is, do the precedents she cites support the equal protection argument as solidly as she suggests? Scalia denigrates her opinion rather vehemently, but given that he also thought Romer v. Evans was the Seventh Sign of the Apocalypse, it seems like in his heart he believes that it is the relevant precedent in that regards, even if he hates that it is.
Is it normal for a dissenting opinion to whine on and on about abortion when the petitioners in the case at hand are gay men, and hence unlikely in the extreme to be wanting an abortion?
A typical Blalron retort: bitchy, short, and entirely bereft of any substance whatsoever.
Mtgman, Tamerlane: I’ve already addressed your points earlier in the thread. Let’s not duplicate effort.
Not really to my satisfaction, however. Which I’m sure is entirely on me. It may well be that this is simply a worldview issue that is undebatable and you’ve already expressed yourself as succinctly as you can.
Right. I just have hard time fathoming why they weren’t before.
Herein lies my problem - I do not accept that majority rule should have anything to do with the private behavior of two consenting adults, that does not cause physical harm to others. This is apparently where we part ways and may be what is undebateable. In this type of situation, it is a “tyranny of the majority” problem which I don’t think should be tolerated.
I disagree. The slippery slope is too steep ( to homosexuality, to oral sex, to whateverr ) here for me to agree. If it causes no harm, it should be legal. Period. No matter how icky people may find it.
Just clarifying my own position and not trying to run down yours :).
- Tamerlane
Scalia was not linking gay sex and abortion in any real-world sense; he was linking them in teh legalistic sense that both rights depend on substantive due process, which he deplores. You’re quite right, however, that his incessant whining about abortion is quite unseemly. It really detracts from what could hav been a fine dissenting opinion, especially since so many of the substantive deficiencies he identifies in the majority opinion are completely accurate. As it is, it leaves this reader with the distinct impression that he cares less about the constitutional principles he purports to be defending than he cares about his own personal social agenda.
By the way, Spavined Gelding, that’s a very astute observation about Thomas’ dissent. I’m not at all sure that the low-level scrutiny test you describe there isn’t exactly what the majority thought it was doing, or at least what they didn’t rule out as to what they were doing.
Well, of course, that question was rather tongue-in-cheek. I do realize the connection between this issue and abortion with regards to substantive due process and the right to privacy. However, Scalia’s ranting on about it struck me as being very odd, partly just because it was, well, a whiny tantrum, and I would have thought that a Supreme Court Justice, even one as vehemently opinionated as Scalia, would be more circumspect in how he expresses himself. But in addition, his line of reasoning seemed rather bizarre to me. The general thrust of his comments regarding Roe v. Wade seemed to be that if Bowers is overturnable, then so is Roe, so there! Take that you liberal scum! But while this may be, strictly speaking, true, is it not the case that the reasoning in the majority decision in this case strengthens the grounds for Roe, and hence makes overturning it less likely, rather than more likely? I dunno, somehow that whole portion of his dissent just seemed surreal to me.
The problem with this line of reasoning is that the palpable moral sense of the community is not sufficient grounds for regulating the private affairs of the individual. Imagine a community whre the majority hold the moral standards of any of the following: John Wayne Gacy, Fred Phelps, Donald Wildman, Wildest Bill, or even Sen. Santorum. Suppose a law requiring evryone to attend the church of their choice every Sunday, carefully crafted to meet Justice O’Connor’s “neutrality” standard. North Carolina still has a law on the books outlawing “fornication” – any sexual relations between unmarried people. Your imagination could come up with numerous examples of similar laws meeting the “palpable moral standards” of the group that troubles you most, I’m sure.
(Not to single you out or say I’m disagreeing with you, I just pulled your quote to make my point)
What we have here is not even a “tyranny of the majority” problem, it’s a “tyranny of the minority” problem, which is much worse.
http://www.gallup.com/subscription/?m=f&c_id=13472
and…
http://uk.gay.com/headlines/4261
If the Texas legislature is going to let a small, vocal minority hijack the basic rights of another minority in complete opposition to the wishes of a majority of the people, than what recourse does the opressed minority have?
I’m not a lawyer, so I can’t comment on the reprocussions of the legal reasonings used. However, the idea that people should use the legislative process for this type of thing doesn’t make a lot of sense to me, when the legislators themselves decide they are going to duck their head in the sand and not deal with the issue.