Yee-haw! Sodomy!

In My Humble Opinion
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The US Supreme Court heard Garner v Texas yesterday, a challenge to the constitutionality of that state’s sodomy laws. Legal scholars, interested persons and others, how do you think the Court will rule?

Here’s a link to an entertaining synopsis of the oral argument.

I see three solid votes in favor of striking down sodomy laws. Breyer, Ginsburg and Stephens (the last dissenter from the Court’s last foray into sodomy, Bowers v Hardwick) will vote to strike.

On the other side I see three solid votes in favor of upholding the law. Rehnquist, Thomas and Scalia will vote to uphold. I have this fantasy where Scalia, having said in his dissent to Romer v Evans (striking down Colorado’s anti-gay Amendment 2), that Romer overturned Bowers, actually believes that it did and will vote to strike. Hey, I can dream, right?

This leaves O’Connor, Souter and Kennedy. O’Connor voted with the majority on Bowers, but she also voted with the majority on Romer. The current case is being argued under the same theory as Bowers (right to privacy and fundamental rights) but equal protection is also in the mix because Texas doesn’t criminalize mixed-sex sodomy. Souter and Kennedy also voted with the majority on Romer and Kennedy wrote the majority opinion. My feeling is that it’s possible all three will find themselves voting to strike down, with O’Connor, having previously voted to uphold in Bowers, being the weakest possibility.

Summing up, I predict the Court will strike down the law on either a 6-3 or 5-4 vote, with the majority consisting of Kennedy, Breyer, Ginsburg, Stephens and Souter (plus maybe O’Connor) with Rehnquist, Scalia and Thomas (and maybe O’Connor) dissenting. Because of her vote in Bowers and because she’s probably the swingiest of any swing voters, whichever side ends up with O’Connor will assign her to write the opinion to solidify her vote. If she and Scalia end up on opposite sides, Scalia, if not assigned to write the dissent, will write a dissent anyway which will focus on attacking O’Connor in an attempt to bully her into joining his side.

Please note that this is deliberately not located in GD. Comments on the appropriateness of sodomy laws, your personal opinion on homosexuality and the like are not appropriate to this thread. If you want a debate on those issues, take it to GD yourself. I’m interested in how you think the Court will rule in this case, not how you would.

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No real insight into the case (I haven’t read the statutes involved, nor the arguments of either side) but I just have to say that the thought of O’Connor swinging that your OP brought to mind is terrifying!

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My prediction is that it’s 6-3 to strike down the law. I think that striking down the law is the only reason they granted cert, with the four voting to grant cert probably Souter, Ginsberg, Stevens, and Breyer. I think that the interesting question here is not whether they’ll strike down the law, but how. While they do so on due process grounds or on equal protection grounds? If they do so on due process grounds, they’ll be holding that the right to privacy encompasses consensual sodomy, and overrule Bowers v Hardwicke. If they do so on equal protection grounds, they’ll be holding that since the law only criminalizes homosexual sodomy, it denies homosexuals the equal protection of the laws.

One might favor the equal protection grounds for striking down the law, thinking of this as a simple extension of Romer, which struck down a state constitutional amendment in Colorado that barred municipal antidiscrimination ordinances protecting homosexuals. But I don’t think that’ll happen. First, there’s a difficulty in defining the class. The law punishes not homosexuality, but the act of engaging in homosexual sodomy. So even if you call homosexuals a quasi suspect class (even though the Romer court disclaimed any pretentions that homosexuals were such a class), the class the law punishes is not coextensive with homosexuals. Plus, of course, there’s the whole discreteness/insularity problem. You can’t tell people who engage in consensual homosexual sodomy just by looking at them (as opposed to African-Americans). Though there’s a history of prejudice against homosexuals, homosexuals have been able to protect themselves politically (and I’m sure Scalia’s clerks could put together one heck of a footnote compiling all the politically active homosexual groups). Since the court hasn’t recognized any new suspect classes, I don’t think they’ll do so for this case. Plus, even if they do recognize people who engage in homosexual sodomy as a quasi-suspect class (or apply super-duper rational basis scrutiny like in Plyler v Doe and Cleburne), then the justices will face the inevitable slippery slope to having to recognize gay marriage on equal protection grounds. I think the justices will want to shy away from all that.

Overruling Bowers is where it’s at. Bowers rested largely on the fact that the justices found no basis in tradition for protecting consensual homosexual sodomy. A bunch of historians have submitted an amicus brief to the Court rebutting the historical claims made by White’s opinion in Bowers, essentially callling today’s antisodomy laws a relative newcomer. Justice Powell famously remarked that voting for Bowers was the worst decision he ever made. Bowers is something of an anti-precedent in today’s law schools, with law professors using it as a foil in somewhat the same sense they do Plessy and Lochner. Plus, the antisodomy law in Texas probably just sounds meanspirited and outdated to the squishy side of the justices. So overruling Bowers is my call.

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If it’s stricken down on equal protection, anyone want to bet that Texas and Arkansas criminalize hetero sodomy? W better be careful with Laura when he’s down at the ranch (and Jenna and Barbie are going to have to lay off the frat boys…)

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Whatever the result, I’m predicting an angry dissent from whoever is in the minority.

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Ah, but then the privacy argument will lead to the hetero sodomy ban being stricken (see Griswold) Since the Court has recognized the right of heterosexuals to engage in non-procreative sex (by allowing the sale and distribution of contraceptives and contraceptive information) it would be hard-pressed to uphold a hetero sodomy ban. It would be legally untenable to claim that equal protection would bar a same-sex sodomy ban but not a hetero sodomy ban.

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Not in Arkansas. The Arkansas Supreme Court recently ruled that gay-only anti-sodomy laws violate the State Consititution and there’s been no rush to reinstate the ban across the board.

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Thanks pal, now pass the brain soap. I have to wash out mine!

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The last ruling on this (from Georgia*) supported the law. One of the key arguments made was that such laws were needed to control the spread of disease. And the SCOTUS supported this argument! (Of course, no one cited a disease that can be spread by gay sex that can’t be spread by hetero sex.)

The court hasn’t changed significantly since then. Many, many recent opinions have been similarly illogical. I don’t expect a reversal.

*Georgia’s fornication and sodomy laws have been since struck down by the state Supreme Court.

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That would be the Bowers decision you’re referencing. The main reason given by the majority in that case was that the laws were deeply rooted in tradition or some such nonsense. The disease argument, while it may have been raised, wasn’t a factor in the final opinion.

The court’s composition has changed markedly since Bowers was decided. IIRC there have been five new justices appointed since the ruling was handed down.

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6-3, with the Three Horsemen dissenting (Scalia writing for them.)

O’Connor with the majority, assigned to write, and writing a very narrow decision on equal protection grounds. Concurrences from the four liberals saying that sodomy laws are unconstitutional.

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It’s a pretty dark subject, but I’m glad they’ve been plugging away at it.

I’d hate to think of someone getting shafted because of an unconstitutional law…

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Ummm…just for the record, Texas does outlaw heterosexual sodomy as well. Sodomy of any sort is deemed “immoral,” even that between a consenting husband and wife in the privacy of their own home. It’s all included in the same package, so with that, plus the fact that the majority of the country still finds homosexuality “icky,” I seriously doubt the Courts going to find in favor of these two men.

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Cite?

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Incorrect, El Elvis Rojo.

http://www.capitol.state.tx.us/statutes/pe/pe0002100.html

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Apologies in advance for this tasteless joke:

So, in order to stop these guys from committing sodomy, they’re going to what… send them to jail? That’ll work.

(One ticket to hell, please… thanks…)

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Just to play devils advocate. I was told this law was put in place to help with rape convictions. I am also told this is about states rights. Prostitution could become legal it texas if it is concidered a right to privacy or even poligamy or gay marrige and many other things that come under personal rights. However, I feel if you can take it up the rear you are more of a man than me.

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6-3, O’Conner writing the opinion. The majority opinion will overturn Bowers but may not say it. O’Conner will say it violates equal protection because it targets homosexuals, but, of course, any statute targetting heterosexual relationships violates the right to privacy, so in effect kills Bowers. However, O’Conner may, contrary to her history, broaden her opinion and also say there is a right to privacy in sexual relations, which would specifically overrule Bowers.

Scalia will write a scathing dissent saying that the right to privacy and Substantive Due Process are not to be found anywhere in the Constitution and have been made up by the court (which is probably true).

As in Romer, law professors will say O’Conner (it was Kennedy in Romer) captured their hearts, but Scalia captured their minds. The majority’s emotional pleas held, but so did Scalia’s logic.

Renquist will write an opinion dealing with history.

If O’Conner narrowly constrains her opinion to Equal Protection, then the Liberal 4, in an opinion by either Ginsburg or Souter will say it also should violate due process right to privacy.

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Doh… I meant “O’Conner may broaden her opinion and say there is a right to privacy in HOMOSEXUAL sexual relations”.

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Meanwhile, back at the ranch…