I suspect that the Supreme Court agrees with you, or they could have simply denied cert and let Bowers hang on. Actually, I think everyone in this thread so far has agreed on that point.
The interesting question will be if they will simply invalidate the law insofar as it makes an act criminal between two men or two women only, and give the Texas legislature the option to make oral and anal sex illegal for everybody, or if they’ll strike down the concept of the law entirely. I suspect the latter, but I could very well be wrong.
MTGman, thanks for the rundown on the case. My guess is that that the original nola contendere was entered at the urging of an attorney who was looking for the quickest disposition of the case. I still think that the cops were out of line, as were the county court which quashed the appeal and the 14th circuit which overturned the ruling of unconstitutionality. I think this whole thing smacks of institutional homophobia.
I will withdraw my blanket condemnation of Texans, but I hope that the publicity in this case will inspire public pressure to repeal these kinds of laws
I don’t agree with your characterization of Eisenstadt, whose holding is limited to the distribution of contraception to unmarried individuals. The Court did not consider the statute as having a goal of discouraging premarital sex, and in fact the discussion clearly, if implicitly, recognizes Massachusetts’ right to criminalize fornication.
In the early nineties, there was a bill introduced in our very own North Carolina legislature to legalize oral sex. The bill was crushed in committee by a handful of conservative legislators -somewhere around 10 of them.
So our local free weekly went to the legislature and asked each of these nutjobs a question: have you ever practiced oral sex with your husband or wife?
The responses were hilarious, ranging from, “Yes,” to, “Um, no comment,” to, “Get the hell out of my office!”
Of course, we also had a state legislator who recommended that teens spray their genitals with Lysol after having sex.
That quote you provided is just part of the Court’s search for a compelling state interest, a required part of the due process scrutiny of the state’s anti-contraception statute. (That explanation, of course, is for the benefit of the non-lawyers in the audience.) It’s inconceivable that the fornication statute could withstand due process scrutiny if–as the Court flatly states in Eisenstadt–individuals have a fundamental due process right to bear or beget children, regardless of marital status. And since Eisenstadt also establishes that those individuals have the right to obtain and use contraceptives, there can be no question that there is no requirement that the purpose of the sex must be procreative in purpose.
The Court wasn’t considering the fornication statute, so it’s no surprise that it avoids ruling on its validity. It’s just that the analysis of the contraception statute makes it clear that the fornication law would not survive constitutional challenge.
If we adopt the view you urge, the basic concept of a dual-sovereign system is lost. I grant that we have been slowly moving in that direction, but I don’t agree it’s the correct one. It seems to me that a state ought to be able to prohibit such practices if it chooses. If there is sufficient outrage over the prohibitions, the citizens of the state have an easy recourse.
There is no decisional law that recognizes sodomy as a basic civil right, or as a practice protected by the right of privacy.
It’s for Texans to decide what they want the laws of Texas to be.
It might be interesting to see what the court might do with a couple one of whom is a post-surgery transsexual, since Texas law regards the biological birth gender as immutable. Would they prosecute them for having same-sex genitalia-in-genitalia sex? If so, under what law?
My knowledge of American law is spotty, but I don’t think the issue is states rights versus those of your federal government. Nor is it the idea of sodomy as a civil right – although privacy as a civil right is at issue here. So is equality.
What Texas seems to have is a law applied to homosexuals only. It also violates people’s right to privacy, with no measurable benefit to the public interest.
Mature democracies, whether at the federal, state/provincial, or municipal level, must recognize that certain rights – including privacy and equal treatment under the law – must remain sacrosanct. “Tyranny of the majority” (which, in my experience, is usually tyranny by a vocal minority) fosters an threatening atmosphere where free speech and freedom of expression are impossible and, ironically, make it harder for a democracy to function.
Privacy should only be limited where the public interest is at risk, and I think it is extreme to claim that the public interest is in any way threatened by two men having sex in their home.
I wouldn’t describe that as a settled point of Texas law, Poly. Only one of the 14 courts of appeals have considered the issue, and the Texas Supreme Court denied review. It’s only binding precedent on the courts within that one district (the San Antonio area, as I recall), and the other courts are free to disagree.
Still, that’s an interesting little quirk you point out there. Gotta love the unintended consequences of stupid decisions!
I agree, especially in the light of the fact that both the individuals were in the closet at the time and would have wanted to avoid publicity if possible. **
I’d like to see justification for the quashing of the motion to dismiss as well(the appeals weren’t quashed, just the motion to dismiss, and I haven’t been able to find the grounds the motion was based on). I’ve seen the opinion of the 14th court and I’ve already said I disagree with it but those jerks, being in Houston, are out of my reach. Now if it ever comes before the fifth court and crap like this happens…**
Thank you for the retraction. I also hope for reform, and I suspect the SCotUS does as well or they wouldn’t have taken this case.
Bricker, obviously we disagree. I see this as a clear civil rights issue, and I believe that should trump states’ rights (at least in this case, although I can think of others).
Coming from the UK, where anti-homosexual laws were abolished in the sixties (I think… before my time) and gay rights are regularly at the forefront of the mainstream media (including debates over whether or not gays should be allowed the same adoption, couples’ benefits etc., ) I find the notion that the state can legislate on any consensual activity in private horrifying. I even found it archaic that the homosexual age of consent was only lowered to that of heterosexuals (16), within the last few years, after being 21, then 18.
Even if laws such as this are not regularly enforced, surely that is missing the salient point, that the state has no right to criminalise a consensual sexual activity between adults. It may sound idealistic, but the main purpose of the law of a democracy is to protect its citizens.
Just as a point, the state sodomy law that the Supreme Court upheld in the old Bowers v. Hardwick case was later overturned (in 1999, IIRC) by the Georgia Supreme Court as being violative of individual privacy. The Georgia Supreme Court said that it was permissible for Georgia to give a greater respect to individual privacy than the United States Supreme Court required.
Interesting ruling, especially since the defendant was particularly disgusting: he had an extensive sexual relationship with his teenage stepdaughter.
I’m not even able to wrap my brain around that notion of “states’ rights”. Why should states have rights? Their duty is to protect and preserve PEOPLE’s rights.
THATS DISGUSTING!
Send all the pedophile faggots on their way!
They shouldnt be able to have sex.
especially with the little children they all want to!
The term is convenient shorthand for, “The power of states, as opposed to the federal government, to legislate in a particular area.” Theoretically, the exercise of that legislative power is to protect and preserve people’s individual rights. Of course, reasonable people can disagree about what sort of weight is assigned to each individual right. It’s generally agreed that, for example, a state has the power to criminalize prostitution, even though people may also be said to have an individual right to copulate with whomever they please, and charge for the service if they please.
But among the rationales for criminalizing prostitution is the notion that acceptance of prostitution in a particular area breeds all sorts of undesirable civil ills; thus, the thinking goes, the individual’s right to pay and play, to the extent it exists, is overcome by other individuals’ rights to not have those attendant social ills thrust upon them.
As I say, reasonable people may disagree as to whether these civil ills are truly the result of prostitution, or whether the weights assigned to the two sets of rights are correct, but the fact remains that it is well-recognized that a state may criminalize prostitution.
It’s this, and similar, powers, I refer to when I say there is a “state’s right” to do something.
