# 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:** 8\ **Page:** 20
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [April 25, 2003, 5:09am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/381 "2003-04-25T05:09:34Z")
If I read “Dewey Cheatem Undhow’s” post correctly, there is no gender reference to either oral or anal sex. Both are banned. The “hole” thing seems kind of anal to me. Only in America can police do $500 damage to your door (in error), and then charge you $200 for the indignation of having your privacy invaded. Maybe Canada has the right idea. They could market the “bed and breakfast” concept to lonely Texas Rangers. And in the unfortunate event someone gets AIDS, there is free health care. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [April 27, 2003, 2:36am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/382 "2003-04-27T02:36:12Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > \*\ ***The Ryan** : The “of course not” was in reference to the question “should you be allowed to do so,” i.e., should the law bend to your personal subjective worldview. I think most would agree that it should not. Obviously, in your mind’s eye you would be completely justified; I’m just saying that internal sense of justification ought not be enough to shield you from the law. It was not in response to question of whether I should be allowed to, but whether I would think that I should be allowed to. While I agree that a person’s moral views do not make them above the law, it should be obvious that someone who considers a law to be immoral will not feel morally obligated to follow it. I see no need to choose between “a person must follow the law, even if they believe it is immoral” and “anyone who disagrees with a law has the right to ignore it”. > [@](#): > > And as for moral relativism: in a sense, yeah, it is, just at a societal level rather than an individual level. But I think that’s the way it must be if you aren’t going to reference some extranatural source for morality. I see nothing extranatural about my morality. ---
**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:** [April 27, 2003, 7:14am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/383 "2003-04-27T07:14:54Z")
> [@](#): > > \*Originally posted by Magiver \* > If I read “Dewey Cheatem Undhow’s” post correctly, there is no gender reference to either oral or anal sex. Both are banned. This is simply not true. The Texas sodomy statute criminalizes “deviate sexual intercourse **with another individual of the same sex**.” Tex. Pen. Code § 21.02. “Deviate sexual intercourse” is defined as “(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.” Tex. Pen. Code § 21.01. [Cite](http://www.capitol.state.tx.us/statutes/pe/pe0002100.html#pe002.21.06). ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [April 28, 2003, 6:59pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/384 "2003-04-28T18:59:51Z")
“the penetration of the genitals or the anus of another person with an object.” Um … then how do procologists and gynecologists stay out of jail? ---
**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:** [April 28, 2003, 8:21pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/385 "2003-04-28T20:21:15Z")
**tracer** : Good question. I assumed that there’d be a definitional carveout for medicial practitioners, but I’ll be damned if I can find it. The closest thing that I can see is [§ 9.22 Necessity](http://www.capitol.state.tx.us/statutes/pe/pe0000900.html#pe008.9.22), but the requirement for “imminent harm” probably knocks that out. I guess all those doctors are criminals! That is some sloppy draftsmanship on the part of the Lege. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [April 28, 2003, 11:23pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/386 "2003-04-28T23:23:33Z")
> [@](#): > > Um … then how do procologists and gynecologists stay out of jail? Especially since they’re getting paid to perform such acts. 🙂 ---
**Author:** ![harrije](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@harrije](https://boards.straightdope.com/u/harrije)\ **Post date:** [May 5, 2003, 1:35am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/387 "2003-05-05T01:35:29Z")
Someone wondered whether the sodomy statute involved gender descrimination. That is exactly what Lawrence and Garner are claiming, at least in part. Consider: 1. Alice, Bob, and Christie, who are all over the legal age of consent, are in a room. Bob asks Alice if he may orally please her. She consents. Bob and Alice proceed to engage in acts of sodomy. Bob them leaves the room. 2. Christie asks Alice if she [C] may orally please her [A]. Alice consents. Christie and Alice proceed to engage in acts of sodomy. They are then both arrested and charged with committing same-sex sodomy in violation of Texas’s law. The _only_ reason (2) is illegal and (1) is not is because Christie is not a man. Had Christie been a man (and named the more masculine Chris), the act would have been equivalent to (1) and thus legal under the statute. So there is a basis here for claiming gender discrimination. ===== Setting aside the merits for a moment and playing the numbers game: _Bowers v. Hardwick (1986)_ was a 5-4 decision. Of the current Justices, Rehnquist and O’Conner were in the majority, while Stevens was in the minority. This particular controversy is a new one for the remaining seven Justices. The majority upheld a Georgia statute which forbade all acts of sodomy, but which was stipulated in Court to have only been applied to homosexuals (and only rarely, at that). The Court refused to address the issue of the statute’s constitutionality with regards to heterosexual sodomy, which, in context, suggested that they didn’t see anything wrong with the discrimination. Ten years later, \*Romer v. Evans (1996) \* was decided, this time in a 6-3 decision in which all of the current Justices participated. O’Conner switched sides, as it were, and joined with Souter, Breyer, Ginsberg, and Stevens in supporting Kennedy’s opinion. Scalia dissented and was joined by Rehnquist and Thomas. The majority decision struck down Colorado’s “anti-non-discrimination” ammendment which had made it illegal for state or local governments to provide legal protection to homosexuals. Social mores with regards to homosexuality have changed a lot in the past 15 years. Whether one thinks it is good or bad, that does have a big part to play in Supreme Court decisions. _Brown v. Board_ was decided as the civil rights movement was gaining steam. _Roe v. Wade_ was decided at the same time the ERA was being sent around to states for ratification. The Court often makes its decision to hear a case not just on legal or constitutional grounds, but on the “ripeness” or relevance of an issue to the prevailing social structure. Given the changing social awareness of homosexuality and some of the language in _Romer_, I am inclined to think that the statute will be found unconstitutional, and possibly by the same majority that decided _Romer_. However, I am very eager to find out on what grounds the Court makes that determination. If the Court finds the Equal Protection argument compelling, it could be a major (positive) shift in the application of non-discrimination laws to homosexuals. If the Court finds the privacy provisions more compelling, it could merely remove the government from policing the bedroom (which wouldn’t be a bad thing, but it wouldn’t be as far-reaching as some would like). ---
**Author:** ![harrije](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@harrije](https://boards.straightdope.com/u/harrije)\ **Post date:** [May 5, 2003, 2:33am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/388 "2003-05-05T02:33:41Z")
My kingdom for a working edit button… Remaining six Justices. The ones not named in the preceding sentence. [Previous page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=19)