Should Bowers VS Hardwick be reversed?
It should never have happened in the first place. I don’t think there’s much controversy over that.
Yeah, I can’t see much to debate here. Should we continue to oppress an entire class of people for no good reason whatsoever? Umm… let me see… how evil are we again? Not that evil. Next!
Damn right it should be reversed. If it’s not, I say the Texas courts can shove it up their collective ass. 
No. There is no federal constitutional right to sodomy.
The remedy for such state laws is repeal at the legislature.
But listening to NPR, the reporter noted that Texas doesn’t ban sodomy among consenting heterosexual adults. Only homosexual. So that seems clearly discriminatory, and probably worthy of being reviewed by the SCOTUS.
However - IANA Lawyer, even remotely 
Bricker, you’re right. The consititution doesn’t explicitly enumerate a right to anal sex. Can you explain why consensual sex between adults doesn’t fall under Amendment IX?
Also, can you go into detail as to why “The remedy for such state laws is repeal at the legislature”? And then explain why this hasn’t happened so far? And then tell me why the Supreme Court isn’t responsible for making sure that the states treat individuals fairly in their justice systems, in accordance with the Constitution of the United States? Please make sure to look over RICHARD PERRY LOVING et ux., Appellants, v.VIRGINIA, and then tell me whether the Supreme Court was right in their decision to rule that laws against interracial marriages violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. You can reference the decision here.
Damn! How could the Founding Fathers forget to include sodomy in the Bill of Rights?
The law is silly and of course it should be reversed. However, I am not a lawyer and have no idea if the Supreme Court actually has the power to reverse this state law.
Extremely valid point. The Texas statute should be overturned. My ‘no’ was in response to whether or not Bowers should be reversed.
- Rick
Just for your reference:
Unless the court is planning on reversing itself and elevating sexual orientation to a “suspect classification” on par with race, alienage and national origin, or unless they reverse and say sodomy is a “fundamental right” on par with free speech, etc., the Texas law won’t get overturned. In Romer, the Colorado law preventing gays from seeking government protections was overturned on the grounds that it failed the “rational basis” test, the minimal level of scrutiny applied to non-suspect classifications and cases not involving a fundamental right. That in itself is a very unusual result – the rational basis test is a hard one to fail – and to have it happen again would be a little like lightning striking twice.
OTOH, the Court might be willing to take either of those two courses of action, so who knows?
Bricker, there’s no specific constitional right tro eat bananas either, or to jerk off, or to sleep on your back. Do stae have the right to ban those activities?
Because to so find would be tantamount to giving the judiciary the power to amend the Constitution outright. Why bother, say, passing the 19th amendment when you can just have the judiciary give women the franchise via the ninth amendment?
The better view of amendment IX is that it guarantees that other sources of rights, such as state constitutions, are valid. I’ll avoid further hijack, but if you’re interested, minty and I have been engaged in a long, rambling discussion that includes this topic over here.
Bricker, I believe these are the questions presented to the Supreme Court in this case, if that helps.
Question:
[ol][li]Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law - which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples - violate the Fourteenth Amendment guarantee of equal protection of the laws? [/li][li]Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? [/li][li]Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled? [/ol][/li]The site also contains the briefs filed by both sides and amicus briefs.
The SCotUS can only say that Texas has to make its laws apply fairly to all citizens. As Bricker noted, they can not say Texas can’t make sodomy illegal. They can strike down the portion of the law that makes it apply only to homosexuals, but that still leaves the Texas Legislature with the choice of outright banning sodomy(as some states have done) for all citizens of Texas or making it legal for all(as some states have done).
Enjoy,
Steven
On Preview: MrVisible the analogy between a ban on sodomy and a ban on interracial marriage doesn’t hold up. A state could outlaw marriage for ANY of its citizens(well, in a hypothetical world at least, since marriage is not a constitutionally protected right) and not fall afoul of the Equal Protection and Due Process clauses of the 14th ammendment. What got the state of Virginia in trouble was that they didn’t outlaw it to all of their citizens, just some of them. This is the same trouble Texas is in now, but it still doesn’t mean that sodomy, as an act in and of itself, regardless of who performs it upon whom, can not be made illegal.
On Second Preview: Aiee!! you guys are going too fast. I’ll submit while the submittin’s good
Well, the short answer is because the Court has already found it doesn’t.
I agree that the Texas law invidiously discriminates on the basis of sexual orientation, by making the same act legal as between heterosexuals and illegal as between homosexuals. For this reason, it should be overturned on Equal Protection Grounds.
On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution. I assume it hasn’t happened so far because the will of the residents of Texas, as expressed through their legislature, is to prohibit sodomy.
The Supreme Court was right in Loving, because the Virginia law at issue invidiously discriminated based on race, an impermissible criteria under the Fourteenth Amendment.
- Rick
Yes. They also have the right to be booted out of office for passing such stupid laws.
First off, reversal of Bowers v Hardwick is only a long-odds best case scenario, not expected from SCOTUS as presently composed. But this case is being brought on equal protection grounds – it is illegal to commit with someone of your own sex precisely the same acts that it is legal to commit with someone of the opposite sex, in Texas and three other states. And that puts gay men and women at a legal disadvantage that specifically targets them (as well as persons of effective bisexuality who might engage in same-sex acts under the purview of the law).
Counsel for the appellants are attempting to get the Texas law thrown out as a violation of the Fourteenth Amendment guarantee of equal protection – because the law clearly targets those who wish to engage in “alternative sex acts” with same-sex partners, to the exclusion of those who would engage in the same acts with opposite-sex partners.
And, Bricker, the background on Bowers indicates that it was a 5-4 decision with the late Justice Powell as the “swing justice” and that he later said that he made the wrong decision. In addition to which, the Bowers case was argued totally wrong from my perspective – it was clearly a case of invasion of privacy (read the facts behind the case) in which, unfortunately, an attempt to overturn the sodomy law was substituted for the very real and intentional police harassment and violation of Fourth Amendment rights that unquestionably did occur.
Would people please drop the Ninth Amendment stuff? Seriously, it seems like people are invoking it left and right in the last month or two, but it is nothing but a truism, folks. It merely says that the government can’t deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.
Now, with that out of the way, I just want to say that the Court need not, and almost certainly will not, reverse Bowers to reach the result of striking down Texas’ sodomy statute. Bowers was decided on the basis of Due Process; that is, there ain’t no Due Process right not to go to jail for engaging in a little consensual sodomy.
This case asks a different question: Does the Equal Protection clause prevent a state from drawing a gender-based distinction as to who can go to jail for engaging in a little consensual sodomy. That is, Texas law permits couples of opposite sex to put their hoohas and dingles wherever they want with each other, but says that you can’t do that if you’re the wrong gender. This, according the the defendants, violates the 14th Amendment’s guarantee of equal protection of the laws.
(Opposite sex couples already cannot be charged with sodomy in ordinary circumstances, even where state sodomy law applies to both heterosexual and homosexual conduct, because the courts have recognized a Due Process right to procreate yourselves silly without the interference of the state.)
Because this is not primarily a Due Process case, the likely result is that the Texas sodomy law will be (as held by Bowers okay under Due Process, but in violation of Equal Protection.
Either way, they wouldn’t have taken the case if there wasn’t some serious disenchantment on the part of the Court with the result in Bowers. I predict good things come about June.
Argh! Another piece I left out. It is possible, as Dewey noted, for the court to uphold the Texas statute on grounds that it is “homosexual” is not a protected class. i.e. that discrimination on basis of sexual orientation is not the same as discrimination on basis of Race/Gender/Age/etc. Personally I think they wouldn’t have taken the case if they don’t intend to strike it down, since the Texas Court of Criminal Appeals(State SC) refused to strike it down, if they wanted it to stand they simply could have left it alone.
Enjoy,
Steven
No, actually, you and I have been discussing the 14th Amendment in that thread. I believe that we agree on the 9th Amendment.