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.”
Yes. As long as the ban is across the board and not just directed at [race|gender|age group|other protected class].
Enjoy,
Steven
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.
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?
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?
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
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.
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.]
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:
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.
Now who could that be…? 
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):
Hey, when I say “truism,” I mean “truism.” 
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 mentioned it, and they said this, which seems to argue against your position re Madison:
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?
And I see minty beat me to the punch, with better cites to boot.
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 pk can’t get anywhere near an a**e in Texas! (Thanks for that joke, Molly Ivins!)
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.)
Also I told you we had the same reading of the Ninth. 
Hey, and I believed you.
Kum bah yaaaaaahhh my lord
Kum bah yaaaaah.
Um, Minty, if your cite is supposed to prove that the Ninth Amendment is a truism, how come it says:
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.