Supreme Court hears challenge to Texas Sodomy Ban

Great Debates
341

A question, Hamlet. I don’t believe I have disputed any of the points in your last post. (If I have, I hereby concede them - my recent string of posts were disputing Jimmy1’s attempt to argue that the logical structure of the Texas sodomy statute is different from that of Virginia’s anti-miscegenation statute.) Is it the case that laws are subjected to higher levels of scrutiny whenever they make use of suspect classifications such as gender? Or are they subject to heightened scrutiny only when they are found to be discriminating against (as opposed to on the basis of, a distinction you’re still failing to make) a gender, race, or the like. That is, would laws regulating public bathrooms be subject to heightened scrutiny, and pass, or would they not be subjected to the scrutiny in the first place?

The reason I ask is that I’m not sure your conclusion follows from the premises if it’s the case that the Texas statute’s use of gender classifications will subject it to higher scrutiny, given that the state will have a much harder time presenting a compelling interest to discriminate against homosexuals than it would presenting a compelling interest to keep men out of women’s bathrooms. That is, even if it’s not illegal to discriminate against homosexuals, if Texas has to prove it has a compelling interest to do so, they may well fail.

Or am I failing to understand something here? I have far more expertise with logic than with the law.

342

Gorsnak what level of scrutiny is to be applied depends on if the law burdens a fundamental right or targets a suspect class. Romer v. Evans. Regents of the University of California v. Bakke noting: Racial and ethnic classifications are subject to stringent examination…Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.

If the law does either, then strict scrutiny is automatic. Even if the statute is facially neutral but as applied has a disparate impact upon a fundamental right or suspect class, in other words burdens a fundamental right or suspect class and a discriminatory intent can be demonstrated to burden a suspect class or fundamental right, then strict scrutiny is applied. Yick Wo v. Hopkins. Church of the Lukumi Babalu Aye Inc. v. City of Hialeah.

It must be noted that on the basis of discrimination and discrimination against are not always mutually exclusive but at times overlap.

An example of this can be found in Strauder v. West Virginia. Here the Court framed the issue to be one of in the composition or selection of jurors all persons of the defendant’s race, defendant is black, may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury. In this instance the discrimination was on the basis of race and nothing more. In this same instance the object of the discrimination was The very fact colored people are singled out…denied by a statute all right to participate…as jurors, becuase of their color…is practically a brand upn them…an assertion of their inferiority.

The statute in Loving v. Virginia was discrimination against and on the basis of type of statute. The statute was designed to demonstrate the inferiority of colored people and declare the Supremacy of the White race a goal similar to the statute in Strauder. The entire basis for the discrimination was the color of one’s skin/race or their racial classification.

There are some instances, however, where discrimination on the basis of color/race has been permitted when there is absent an intent to target another race. The most well known examples are those of affirmative action. Affirmative action discriminates on the basis of one’s race but does not have as its objective the oppression of a particular race. Hence, these affirmative action schemes are not considered to be in violation of the Equal Protection Clause of the Fourteenth Amendment. Regents of the University of California v. Bakke

In Regents v. Bakke the Court made light of the fact the special admissions program is undeniably a classification based on race and ethnic background. The line was drawn on the basis of race and ethnic status. Racial and ethnic classifications are subject to stringent examination…Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination. The Court of course went on to state the constitutional permissibility in certain and particular affirmative action programs.

343

No, I don’t believe they have authority to do so.

344

Gorsnak I would have to say no at least not in this instance. Why? Because the gender classification in this instance does not constitute as a suspect class. As I have noted time and time again this is not the type of gender discrimination the Court is likely to apply strict scrutiny to because it is not the type where a suspect class is being targeted. Homosexuals, lesbians, and bisexuals do not constitute as suspect classes. Hence, while you may want to call it a “gender classification” this does not automatically trigger strict scrutiny. It is not the type of gender classification scheme where the superiority of males over females is demonstrated where females solely are the target of the legislation and burdened. As I have tried to explain to you time and again this is not an instance where males are allowed to do something females are excluded from doing. The target is not a suspect class and consequently, no strict scrutiny.

This is where my points about the differences between the Texas and Virginia statute come into play. The proscribed conduct in the Virginia statute was not “marriage” but specifically white people marrying colored people for no other reason than targeting a suspect class and based off of nothing more than race while burdening a fundamental right to marry. The Texas statute does not target a suspect class, it is not targeting specifically males to the mutual exclusion of females or vice versa, nor is a fundamental right burdened, and finally the sole and only purpose for the scheme is not simply “gender” but sexual orientation. The statute does not really need to spell out in bold type they are targeting “sexual orientation” to understand the Texas statute’s scheme is built upon “sexual orientation”. If it is excluding from regulation those acts committed between heterosexuals but condemning these same acts from being commmitted by same sex couples then quite obviously the statute is based upon sexual orientation as well as gender. Any argument to the contrary is not a logical one.

According to Scalia the use of gender classifications, and I think he would dispute this is an instance of “gender classification” most likely for some of the reasons I have previously mentioned, in this instance is permissible because of Bowers v. Hardwick and he would deny the use of strict scrutiny. Most members of the U.S. Supreme Court would deny a strict scrutiny analysis and I am assuming they are of course still adhering to Bowers v. Hardwick.

In Romer v. Evans the Court did not apply strict scrutiny to a Colorado amendment, known as Amendment 2 where the amendment stipulated, "No protected status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado…its agencies…political subdivision, or school districts shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships shall constitute or otherwise be the basis of or entitle any person or persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. In this case did not even apply intermediary scrutiny in this case. They applied the lowest level of scrutiny and in the words of Justice Kennedy, “If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Why wasn’t strict scrutiny applied? Because no suspect class was targeted nor was any fundamental right burdened.

So the use of the terms “gender classification” is misleading in this instance because it is not really a “gender classification” of the type the U.S. Supreme Court looks for. In all honesty use the the phrase “gender classification” is nothing more than a dysphemism. It is nothing more than a term used because of the possible negative connotations associated with it designed to reach an outcome based on these connotations and the assumption nobody would associate with such negative and awful terms or conduct. Gender classification can also be considered a red herring in this instance because the state is really focusing on sexual orientation. It is sexual orientation that is the target of the Texas statute and is the basis for the regulatoin in the Texas statute and it was sexual orientation as the basis for the amendment in Romer v. Evans.

As a result, under these circumstances the use of gender classifications, more correctly sexual orientation, might be permissible relying on Bowers v. Hardwick.

345

Look, repeating this over and over again doesn’t make it true. Males are allowed to sodomize women. Women are excluded from doing the same. Unless somehow sodomizing women isn’t something, this is indeed an instance where males are allowed to do something females are excluded from doing. You need to stick with the part of your argument where you point out the differences in intent between Virginia and Texas, as this part where you try to say that the laws are structured differently is just plain wrong.

I have no quarrel with the rest of your post, aside from thinking that you might be surprised about the Court’s intentions with regards to Bowers v. Hardwick.

346

Gorsnak I think you know exactly what I mean. Finding an example that does not repudiate what I am intending is pointless. You have read enough of my posts and read enough examples to know exactly what I am getting at and this is not it. This is not the type of mutual exclusivity I am talking about and you know it.

In what way?

347

And the 1964 Civil Rights Act…?

348

Is (theoretically) connected to interstate commerce. IMHO, the Commerce Clause has been really abused since FDR. That Act should have been done as a constitutional amendment, or left to the states. Just because something’s a good idea doesn’t mean Congress ought to do it, there’s that little thing called federalism and enumerated federal powers. The federal Violence Against Women Act may have advanced worthy goals, but it was rightly tossed out as unconstitutional. Some things simply have to be left to the states, that’s the way our Constitution was written.

The example Blalron was replying to, that of firearms regulation around schools, has absolutely no justification to be undertaken as a federal act. The federal government has no power as regards schools, it can’t operate them, and it can only get local schools to conform to standards by bribing them into it with federal subsidies. Other than constitutional issues (such as what constitutes an illegal search or seizure by school officials) the federal government just has no business in that area.

349

The Commerce Clause does not extend to the ability to regulate posession of guns within school zones, since it can in no way be considered an economic activity nor does it have any effect to speak of on interstate commerce.

350

RexDart: I understand all of that. I brought up the examples I did because I thought they would be close to Blalron’s political sensitivities. One thing I’ve noticed in these types of discussions is that fealty to federalism often depends on whose ox is being gored.

It boils down to this: if you believe the “affects test” is the appropriate measure for whether a given act falls within the scope of commerce clause, then you’ve pretty much got to accept virtually every bit of congressional legislation premised on the commerce clause. If you reject the “affects test,” then you’re rejecting a lot of federal legislation passed from the New Deal onward, including shibboleths like the Civil Rights Act.

So the ultimate question for Blalron on this topic is, “is the affects test appropriate?” And if it is not, what alternative does he suggest?

(An aside: rejection of the “affects test” would also mean reversing a lot of precedents – far more than a reversal of the substantive due process decisions. Folks who criticize my views of SDP on stare decisis grounds but want to reverse the expansive view of the commerce clause have a disquieting inconsistency in their position.)

PS: IIRC the Lopez decision invalidating the Gun-Free School Zones Act was essentially premised on the lack of congressional findings of a commerce impact, and that the act was re-passed with such findings after the decision was handed down, and so is arguably good law today.

351

US v. Lopez.

Read Breyer’s dissent and tell me again there is no effect on on interstate commerce. And tell me that that effect is lesser than the effect of racial discrimination at some podunk lunch counter in the middle of Nowheresville, Mississippi.

If the effects test is appropriate, then Congress’ authority is very broad, because everything has some impact on interstate commerce. Under that test, the power to regulate commerce is the power to regulate everything. If you’ve got a better test, I’d love to hear it.

(N.B.: I’m a staunch federalist, and I also decry the expansion of federal power under the commerce clause. I just think the blame is properly laid at the feet of Congress, and that the courts simply can’t articulate a principled test that would appropriately reign in that expansion. Which is why I think the courts should get out of the commerce clause business entirely – instead of giving the high court’s “seal of approval” on such legislation, it would be far better for Congress to have to explain why it thinks a given act impacts commerce – as it stands, Congress just punts that question to the courts by default).

352

Congress can come up with any ridiculous explanation they want and say that its related to Commerce, and it flies.

The Substantive Due Process protections, however, are much narrower in scope. So if the Supremes stick with their previous limitations on SDP I don’t see too much of a potential for abuse.

353

No Rex, don’t go ragging on the the adroit use of the commerce clause because it impinges on States’ rights, which to me means “Niggers get nothing!”

354

There is one instance where I admire the Court’s judicial restraint so far: The Second Amendment.

If they say that there is an individual right to bear arms, then they have to deal with what specific types of firearms could be banned, and since SCOTUS are not gun experts, I don’t think they want to deal with it.

If they say that it’s a state right and has never been an individual right, they would probably have millions of gun nuts up in arms over their ruling (literally!)

So they rightly decided not to touch the issue with a thirty foot pole. It’s a political matter.

355

Blalron: What the hell? Is this “toss out random constitutional issues” day?

356

Jimmy1

I don’t know about federal or SCOTUS but the Hawaii state supreme court found the failure of the state to issue marriage licenses to same-sex couples to be sex discrimination under the Hawaii constitution’s ERA. Baehr v Lewin. That case was a fairly complicated one, going up and down the ladder at the courts a couple of times, with an intervening amendment to the Hawaii state constitution specifically barring same-sex marriage. This led the court to conclude that the suit demanding that the state be required to issue marriage licenses to same-sex couples was moot. Baehr v Miike.

There was some action in Hawaii seeking the rights of marriage for same-sex couples under the state’s equal protection clause but I have not heard anythng over the last several years as to any progress in that arena.

357

But you were implying that only God can know what is moral.

What do you mean by “objectively correct”? And if no one is capable of determining this, then aren’t you arguing for the complete adbidaction of the right to enforce morality? If someone breaks into my house and starts stealing stuff, should I not stop him because I can’t supply some logical proof that stealing is “objectively” wrong?

358

We can’t ignore the Constitution, ignore the rule of law, just because we think it’s the only way to bring about the result. Would a new civil rights amendment have passed in 1964? Maybe not. Would the southern states have adopted state amendments or statutes granting those rights? Not for years to come perhaps. But just because you can’t get something done in the allowable way doesn’t mean you should ignore the rules and get it done anyways, even if it promotes positive results.

When you begin to ignore the rule of law, ignore the constitution, and expand federal power, it really is a slippery slope, and that’s not just a figment of paranoid minds. Law students today read those opinions which stretched federal power, and see them as the norm, as then become judges who stretch them further. Then a new generation of law students begin the process anew. Look at the increasing degree to which the constitution is being ignored since the FDR administration. Not that it’s only a problem from the left, it’s a common problem.

When the rule of law is ignored, we become increasingly at the mercy of whatever gang is presently in power. When the gang in power promotes your ideology, you’re happy. But if the gang in power changes and starts to tear apart what you’ve built, you’re going to regret having ignored the constraints of the Constitution, because the new gang will be free to do the same. In fact, hasn’t that already sort of happened? I think it’s called the PATRIOT Act…

359

Pretty much. I strayed off topic a bit.

Back to the subject!

360

But what if the law one wants to ignore is the “whoever’s in power gets to do whatever they want” law?