# Supreme Court hears challenge to Texas Sodomy Ban **URL:** \ **Category:** Great Debates\ **Created:** [March 26, 2003, 9:03pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368 "2003-03-26T21:03:59Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 26, 2003, 11:47pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/21 "2003-03-26T23:47:23Z")
**minty** : That thread covers a lot of ground. We (“we” meaning me and other thread participants) did indeed discuss the ninth amendment. You may not have entered the discussion until later on (in which case, mea culpa), but the discussion does “include that topic.” ---
**Author:** ![Mtgman](https://avatars.discourse-cdn.com/v4/letter/m/b5a626/32.png) [@Mtgman](https://boards.straightdope.com/u/Mtgman)\ **Post date:** [March 26, 2003, 11:54pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/22 "2003-03-26T23:54:35Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*Bricker, there’s no specific constitutional(sic) right to(sic) eat bananas either, or to jerk off, or to sleep on your back. Do states(sic) have the right to ban those activities? \*\* Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class]. Enjoy, Steven ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 27, 2003, 12:15am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/23 "2003-03-27T00:15:56Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\ ***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? \*\* As has already been answered by others, the answer is yes. Although much of the historical support for the banning of sodomy, which was discussed at length in _Bowers_, would not apply to any of the activities you list here. ---
**Author:** ![Priam](https://avatars.discourse-cdn.com/v4/letter/p/77aa72/32.png) [@Priam](https://boards.straightdope.com/u/Priam)\ **Post date:** [March 27, 2003, 12:22am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/24 "2003-03-27T00:22:26Z")
I am of the belief that the Supreme Court will simply insist Texas modify its law to cover everyone or remove it from the books. Equal Protection is probably the clearest point in this whole case. However, what would be even more interesting is attempting to get a ruling about Equal Protection based, not upon wording, but upon application. Most of the states which ban sodomy and oral sex for all have only really enforced the law when the couple was same-sex. Thus, would that be considered violation of Equal Protection regardless of the law’s technical wording? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [March 27, 2003, 12:22am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/25 "2003-03-27T00:22:27Z")
> [@](#): > > \*Originally posted by Mtgman \* > \*\*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 \*\* IANAL, but let me ask the ones who are, would it be possible to assert gender as a class in this case, rather than orientation. IOW, the law discriminates against men because it prohibits an act for them, that is permitted for women. Can it be argued that I have the same right to suck on a penis as a woman does? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [March 27, 2003, 12:39am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/26 "2003-03-27T00:39:08Z")
> [@](#): > > \*Originally posted by Mtgman \* > \*\*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 \*\* Steven, I think you have the wrong angle on the question here. I will concede that there are various categories invoking various degrees of scrutiny in the standard tests for whether a law violates due process, but this appeal is being brought on an equal protection issue. The state would have to show a very strong argument that the health and welfare of Texans depend on making the distinction the challenged law makes. Perhaps one of the lawyers will address this. And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism. I am quite well aware that SCOTUS will jump through hoops with their robes on fire to find another justification for their decisions than recognizing a Ninth Amendment right, even if it involves “emanations and penumbras.” But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights – i.e., as a _de facto_ statement about the current status of the law. “Five votes can do anything.” - the Hon. Wm. Brennan ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [March 27, 2003, 12:41am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/27 "2003-03-27T00:41:15Z")
I too think that the classification of interest here is gender, not orientation. The Texas law doesn’t forbid a lesbian from fellating a gay man, ergo, it’s not about the orientation of those committing sodomy. It’s about their gender, and gender is a fairly heavily protected classification. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 2:38am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/28 "2003-03-27T02:38:43Z")
> [@](#): > > \*Originally posted by Mtgman \* > Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class] No, because such a law would be, to borrow a phrase certain to send somebody or other into a fit, arbitrary, unreasonable, and downright stupid. [Okay, actually I have no idea whether such laws would withstand judicial scrutiny under the Due Process clause. But I do want to point out that their constitutional validity would be eminently questionable.] ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 2:39am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/29 "2003-03-27T02:39:53Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*IANAL, but let me ask the ones who are, would it be possible to assert gender as a class in this case, rather than orientation. IOW, the law discriminates against men because it prohibits an act for them, that is permitted for women. Can it be argued that I have the same right to suck on a penis as a woman does? \*\* I’m not sure this would fly. The law isn’t defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex. Here is the relevant statutory language from the [Texas Penal Code](http://story.news.yahoo.com/news?tmpl=story2&cid=514&e=3&u=/ap/20030326/ap_on_re_us/moynihan_obit): > [@](#): > > **§ 21.01. Definitions** > > In this chapter: > > (1) “Deviate sexual intercourse” means: > > (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or > > (B) the penetration of the genitals or the anus of another person with an object. > > (2) “Sexual contact” means, except as provided by Section 21.11 [re: Indecency With A Child], any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. > > (3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ. > > **§ 21.06. Homosexual Conduct** > > (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. > > (b) An offense under this section is a Class C misdemeanor. So to make the gender argument, you’re stuck with saying it’s discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused – the law itself applies equally to men and women. Besides, gender is a “quasi-suspect” class, so it doesn’t get the same strict scrutiny other protected classes do. Still, it’s more than rational basis scrutiny, and that’s something. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 2:41am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/30 "2003-03-27T02:41:24Z")
> [@](#): > > \*Originally posted by minty green \* > **…to borrow a phrase certain to send somebody or other into a fit…** Now who could that be…? 😃 ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 2:48am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/31 "2003-03-27T02:48:59Z")
> [@](#): > > \*Originally posted by Polycarp \* > And, gentlemen of the Bar, I do feel that you have been Borked over. I am unaware of any definitive ruling that says that the Ninth Amendment is merely a truism. Ah, it does my heart good to prove **Polycarp** wrong. It’s like killing the Buddha with an RPG or something. 🙂 Anyway, allow me to introduce you to _United States v. Darby_, 312 U.S. 100, 124-25 (1941): > [@](#): > > Our conclusion is unaffected by the Tenth Amendment which provides: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. **The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.** _See e.g.,_ II Elliot’s Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, secs. 1907, 1908. > > From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end. _Martin v. Hunter’s Lessee_, 1 Wheat. 304, 324, 325; _McCulloch v. Maryland_, _supra_, 4 Wheat. 405, 406; _Gordon v. United States_, 117 U.S. Appendix, 697, 705; _Lottery Case_, _supra_; _Northern Securities Co. v. United States_, _supra_, 193 U.S. 344, 345 , 24 S.Ct. 459, 460; _Everard’s Breweries v. Day, supra_, 265 U.S. 558 , 44 S.Ct. 631; _United States v. Sprague_, 282 U.S. 716, 733 , 51 S.Ct. 220, 222, 71 A.L.R. 1381; _see United States v. The Brigantine William_, 28 Fed.Cas. 614, 622, No. 16,700. Whatever doubts may have arisen of the soundness of that conclusion they have been put at rest by the decisions under the Sherman Act and the National Labor Relations Act which we have cited. _See, also, Ashwander v. Tennessee Valley Authority_, 297 U.S. 288, 330 , 331 S., 56 S.Ct. 466, 475; _Wright v. Union Central Ins. Co._, 304 U.S. 502, 516 , 58 S.Ct. 1025, 1033. Hey, when I say “truism,” I mean “truism.” 😛 ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 2:53am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/32 "2003-03-27T02:53:07Z")
> [@](#): > > \*Originally posted by Polycarp \* > **But the assertion that the Ninth merely says that other rights may be recognized (by statutes, state constitutions, etc.) flies in the face of what Mr. Madison had to say about it and has validity only in the sense that nobody has ever written a majority opinion finding a right as among the unenumerated Ninth Amendment rights – i.e., as a _de facto_ statement about the current status of the law.** Apologies for the hijack, and it may be better to address this over in the other thread, but you’ve mentioned this before and I’m wondering what it is you’re referring to? I trotted over to Findlaw to see if their [annotations](http://caselaw.lp.findlaw.com/data/constitution/amendment09/) mentioned it, and they said this, which seems to argue against your position re Madison: > [@](#): > > Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. ‘‘It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.’’ It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement. (Emphasis added) Now I realize the Findlaw annotations are hardly a constitutional treatise, but since your view of what Madison was doing is clearly different, I was wondering if you would mind spelling it out? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 2:57am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/33 "2003-03-27T02:57:33Z")
And I see **minty** beat me to the punch, with better cites to boot. ---
**Author:** ![mykpart](https://avatars.discourse-cdn.com/v4/letter/m/258eb7/32.png) [@mykpart](https://boards.straightdope.com/u/mykpart)\ **Post date:** [March 27, 2003, 3:00am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/34 "2003-03-27T03:00:42Z")
They have to do away with the ban on sodomy in Texas. Otherwise, every time Dick Armey shakes hands with Governor Rick Perry, they will be in violation of a law that says a p_ **k can’t get anywhere near an a** _\*\*e in Texas! (Thanks for that joke, Molly Ivins!) ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 3:04am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/35 "2003-03-27T03:04:51Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > And I see **minty** beat me to the punch, with better cites to boot. May it always be so. 😃 [And given how I currently have three cases that could eventually end up before SCOTUS, and two that could actually be granted review, may it REALLY be so.) ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 3:06am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/36 "2003-03-27T03:06:23Z")
Also I **told** you we had the same reading of the Ninth. 🆒 ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [March 27, 2003, 3:09am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/37 "2003-03-27T03:09:42Z")
Hey, and I believed you. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [March 27, 2003, 3:13am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/38 "2003-03-27T03:13:02Z")
Kum bah yaaaaaahhh my lord Kum bah yaaaaah. ---
**Author:** ![ricksummon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ricksummon/32/3333_2.png) [@ricksummon](https://boards.straightdope.com/u/ricksummon)\ **Post date:** [March 27, 2003, 3:44am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/39 "2003-03-27T03:44:05Z")
Um, Minty, if your cite is supposed to prove that the **Ninth** Amendment is a truism, how come it says: > [@](#): > > Our conclusion is unaffected by the **Tenth Amendment** ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [March 27, 2003, 4:32am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/40 "2003-03-27T04:32:17Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\*I’m not sure this would fly. The law isn’t defined in gender terms; it appears to apply to lesbians using strap-ons just as much as plain 'ol gay sex. > > Here is the relevant statutory language from the [Texas Penal Code](http://story.news.yahoo.com/news?tmpl=story2&cid=514&e=3&u=/ap/20030326/ap_on_re_us/moynihan_obit) (text omitted) > > So to make the gender argument, you’re stuck with saying it’s discriminatory based on the fact that male-female relations are OK but same sex relations are not. Which is really just the preference of the person accused – the law itself applies equally to men and women. > > Besides, gender is a “quasi-suspect” class, so it doesn’t get the same strict scrutiny other protected classes do. Still, it’s more than rational basis scrutiny, and that’s something. \*\* No, to make the gender argument, you are stuck saying that fellatio is a crime if performed by a man, but not if performed by a woman. It has nothing to do with the preferences of the people involved. The people involved could prefer anything whatsoever. It’s the gender of the fellater that detemines if a crime has been committed. [Previous page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=1) [Next page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=3)