The topic of the case in which the U.S. Supreme Court will review the constitutionality of Texas’s law making “deviant sexual intercourse” (the legal term) between two persons of the same sex a crime (although between two persons of opposite sexes it is not under that law) has been brought up in several threads lately.
I’m opening this one to get a read from our resident legal eagles on what they sense the decision of SCOTUS will be, and why. Not what it should be, nor what it might be if a different set of justices were in place, but what this particular Court is likely to rule. Obviously a discussion of individual justices’ likely stances is in order.
I suspect it belongs here in GD because there is likely to be some debate on the meaning of various constitutional principles, and perhaps even on different posters’ reading of a justice or justices’ stances to date.
But it’s not my intent to get into “should gays have the right to have sex as they see fit?” but rather “is it probable that they will end up with that right, or at least rights commensurate with straight people, on the basis of this case?”
IANAL, but I suspect that the mere fact that the SCOTUS has agreed to review these case at all is an indication that they are likely to overturn it. I think the equal protection objection is a slam dunk for the defendant.
I believe these are the questions the Supreme Court plans on answering in this case:
[ul]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?
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?
Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled? [/ul]
from findlaw
Mr. Justice Powell, who voted with the majority in Hardwick, later rethought his position and was quoted as saying that he was probably wrong in his position. Powell was the swing vote on the Court during his tenure, and I suspect that there is enough similar sentiment on the present Court to overturn the Texas conviction and invalidate Hardwick.
As an aside, Mr. Justice Powell’s daughter-in-law is one of the most beautiful women I have ever seen in my life. She is stunningly, blindingly beautiful.
I predict that the first question, regarding the Texas law in particular, will be answered by the Court striking down the law on equal protection grounds, 6-3 (Scalia, Rehnquist, and Thomas dissenting. I could write Scalia’s dissent right now, probably.)
The second and third questions are trickier. I honestly don’t know if the Court will decide that a state has no power to forbid consensual sodomy if it does so for everybody. My suspicion is that the Court will do that, if for no other reason that they wouldn’t have agreed to hear the case otherwise, although such an expansion of the federal privacy right would be fairly unusual for this court. They may very well decide that anti-sodomy laws of general application are within the state’s authority.
Mighty Maximino is almost right. They will overturn on equal protection grounds, based on the first question, though I think the vote is more likely to be 7-2.
I predict that they will duck the second and third questions, by saying that it is not necessary to address those issues, as the resolution of the first question is dispositive of the entire case.
This is a time-honored dodge by judges, and actually has some validity in legal theory - that judges, because they are not the legislature, should decide cases as narrowly as possible.