YES
Bricker. I think we agree in principle, however, I think that SCOTUS will find that sexual contact is included in the amorphous “right to privacy” in the Constitution. There is solid precedent in Gideon, Eisenstadt, and even Loving that SCOTUS could find to make such a ruling. Maybe it’s just wishful thinking, but I think, in a 5-4 majority, that SCOTUS will strike down the law under both Equal Protection and Substantive Due Process, and, while they are at it, overrule Bowers. And I think that would be a good thing.
DIOGENES said;
You would think you would know better.
You could say that you like to breathe, and someone would argue with you.
NO.
The founding fathers rationale in creating the Constitution was, in part, to still allow the States a vast majority of the law making power. Issues such as cavier consumption and the like are best handled in the State Legislatures rather than by Congress or SCOTUS. That is, in theory, where the elected officials are most accountable to the people.
Regardless of what Mantegout says or how he wants it to be, the fact is that the way our country was established was that the authority to make laws was granted to the government, but they specifically enumerated rights that the federal government could not infringe upon. Decisions regarding what other rights State’s wanted to have was left up to the individual State’s in their Constitutions and legislatures.
And people do have the ability to have sex in whatever way they want unless there is a specific law against it. In Texas, and other States, it is illegal.
But don’t those rights exist as defined by what individuals or the state are not permitted to do, so there might be a law that says someone shouldn’t assault you with an offensive weapon, rather than a law that says you have the right to not be assaulted?
It’s not the easiest of distinctions, I suppose. Am I making sense?
That crystal ball of yours may be right on track, I admit… or it may be a little muddy.
The Bowers court was 5-4, with Rehnquist, White, Burger, Powell, and O’Connor on one side and Brennan, Blackmun, Marshall, and Stevens on the dissent.
Today’s bench is a bit different. I can’t see Rehnquist or O’Connor changing their votes today. I think Scalia would vote in favor of stare decisis, if not the merits.
Stevens likely wouldn’t change his vote. I see Breyer and Souter on this side, too, and ceratinly Ginsburg.
So that leaves Thomas and Kennedy as potential swing votes. I see both of them leaning towards the status quo.
But convince me - how do you see the votes falling out?
- Rick
This may seem wishy washy. I think were all on the same page here but our books are written in different languages. I think we agree in principle how the system should work, but were not in agreement of the verbage used to describe the process.
Bricker - I cant answer that as well as you would like. Except its been O`Conner who is typically the swing vote.
I fully support the idea that people should have the right to hold whatever views they like, however bizarre (freedom of thought), but the problem is that it goes further than thought in this case; they want to impose their views on unwilling parties; there might be a case for this if it could be demonstrated that in doing so, some greater ill would be averted. I’ve yet to see anything happen in that direction.
I should mention (although it’s probably pretty obvious by now) that I am not a citizen of the USA.
Bricker. In all honesty, it’s more wishful thinking than solid evidence. Bowers pretty much answered the question regarding whether there is a Constitutional right to have same-sex sex, but, IMHO, it was a poorly written, poorly thought out opinion.
My head tells me the majority opinion ((Stevens, Breyer, Souter, Ginsberg, and hopefully Kennedy) will strike the statute as written as violating Equal Protection (a challenge the Court refused to entertain in Bowers). Ginsberg, Breyer, Stevens and Souter will then write an additional opinion striking it as violating Substantive Due Process. Rhenquist, Scalia, and Thomas will dissent and say the statute is fine. O’Connor will write her own opinion where she finds a violation of Equal Protection, but not Sub. Due Process, with Kennedy possibly along for the ride.
Just a WAG, though. I’m sure I’ve been wrong before, I just can’t remember when.
There are many policies in this country that seem to be unfair to the general population. Depending on what party gets their way, the other thinks they were cheated. Some laws fall prey to this game too. It`s unfortunate, but that is the way this country is run.
A strong lobby effort can create legislation that benefits few and may not benefit many, in some cases benefits few and harms many.
I for one, did not realize you were not a citizen of the US. Doesn`t matter to me.
I don’t really like to labour the point, but I’m struggling to see how anyone at all benefits from this law (except perhaps in that it panders to the absurd psychological needs of the people who would insist on it)
True
Is there a constitutional right to commit sodomy? (Sorry, folks, but that’s the legal term in most states for oral-genital and genital-anal sex considered as a criminal act, whether or not that state criminalizes it). Under current law, no.
Is there a constitutional right to be able to engage in the same conduct as another may legally engage in, without reference to whether you qualify on the grounds of race, religion, or sex? So that Texas’s law is invalid as a violation of the equal protection clause of the Fourteenth Amendment? Absolutely.
Is there a constitutional right to privacy, so that such behavior might be acceptable in private while illegal when conducted in public (as New York State’s law presently states, AFAIK)? Maybe. This is something I’d like to see Bricker and our other jurisconsults comment on.