An email exchange between me and the guy,
Me:I just got done reading the majority opinion, written by Justice Kennedy. In it, he does conclude that the State laws about homosexuality could be shot down. He spends a significant amount of time attacking
Bowers, that their reasoning was flawed. In Bowers, they basically said that there is a rich history of Western laws which prohibited homosexual acts. But Kennedy says that laws targetted solely at private, consenting acts among homosexuals did not happen until post 1950s. Instead, the laws were targetted against all non-procreative acts, heterosexual or homosexual, and that only cases in which abuse or sex with a minor occured, were the sodomy laws used. He ends by saying Bowers was overruled, which was the precedent before this case, and the reason why the Texas court upheld the conviction. This is what Justice Kennedy concluded, emphasis mine
"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives.
The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. [/i]Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "
I haven't got to Justice O'Connor's statement yet, but this was the majority opinion. Sure, the swing vote matters, but shouldn't the majority opinion take precedence? How can you say that the Court didn't strike down sodomy laws?
Him:Amber thanks for your thoughful post.
It is true that Justice Kennedy wrote the decision and O'Connor wrote a "concurring" opinon.
Concurring opinions are typically written when two or more Justices reach the same conclusion for different reasons and/or two Justices disagree about the broadness of the precedent ths case should set. In this case, Kennedy went so far as to claim the court overturned an earlier case, Bowers v. Hardwick (
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=478&invol=186 ), O'Connors' opinoon claims that the current ruling does not overturn Bowers.
The first words of Kennedy's instructions (the writ of certori to the court of appeals) are:
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18. (emphasis obviously mine). Thus even Kennedy's certori makes it clear that this ruling does not declare all sodomy laws unconstituional, but insead applies only to those which deal differently with same-sex and opposite-sex sodomy.
As for the opinon section, right from the outset Kennedy frames the case this way:
"The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct." (emphasis obviously mine again). For a secoind time Justice Kennedy makes it claer that this case pertains only to a law which treats people differently based on the gender or the gender of their lover.
Still, it is easy to infer from the rest of Kennedy's opinion that he would willing declare all private acts "protected."
Justice O'Connor, the deciding vote apparently took issue with something in Kennedy's opinion and chose to concur with the result but write here own.
The second sentence of O'Connor's opninion reads as follows:
" . . . I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional."
I could go on, but the point is both majority opinons are replete with references to the fact that the Texas sodomy law treated same-sex and oppsite sex partners differently.
Me:So what are States going to do, with Kennedy and O'Connor contradicting themselves over if this case overturns Bowers or not? What will lower courts have to go by? They are going to have to go with the majority opinion. The fact is -- Lawrence over-ruled Bowers.
Sure, Kennedy makes reference to the fact that the Texas law applied only to homosexuals, while the Georgia anti sodomy law (in Bowers), held for both heterosexuals and homosexuals. But that's all it was - a fact. Kennedy did not say that he opposed the law just because it referred only to same sex sodomy. He only mentioned that that was what the court was reviewing - and it was. Only O'Connor used the discrimination argument, out of all the justices.
>As for the opinon section, right from the outset Kennedy frames the case >this way: >"The question before the Court is the validity of a Texas statute making >it a crime for two persons of the same sex to engage in certain intimate >sexual conduct." (emphasis obviously mine again). For a secoind time >Justice Kennedy makes it claer that this case pertains only to a law >which treats people differently based on the gender or the gender of >their lover.
Again, he is referring to the facts of the case - what it was they were evaluating. He makes no judgment calls here. That *is* what they were looking at -- Should gay sex be illegal? That was the Texas law, and that is what they were looking at. I'm not seeing a "homosexual vs. heterosexual discrimination" argument here.
Kennedy, by the way, was appointed by Ronald Reagen. Four out of the six judges who approved of Lawrence were appointed by Republicans. Three of them used privacy reasons, only one - O'Connor (first female appoint by Reagen), used the discrimination argument.
I'm actually glad it was more of a privacy argument than a discrimination argument. If it's a private argument, then it sticks SOLELY to whether or not people can engage in sexual acts. Who cares? You'd have to be of a totalitarian mentality (like Covenor) to put people in jail for having anal sex. As Kennedy pointed out, sodomy laws had not, traditionally, been used to put private consenting adults behding bars. It was only used in cases of abuse or pedophilia. (I never really thought they had anything to bitch about, until this random case of cops entering a man's house and finding 2 men engaged in sodomy).
What I'm worried about is gay marriage. Sure, 6 out of 10 Americans don't support sodomy laws (according to Newsweek), but 6 out of 10 Americans don't support gay marriage (if the California case is of any barometer). A true tribute to the common sense of Americans. Anyway, if there was a discrimination argument ... then this would
pave the way for gay marriage[/i]. If you can't "discriminate" between hetersosexual and homosexual acts in the eyes of the law, then you can't discriminate between them when they go to obtain a marriage license.
This (gay marriage) is next on their radar screen, and I hope the moral leadership of this country steps up to stop it. God, I do NOT want us to turn into Europe!
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This will teach me to take other people's word for it. :roll: