Kennedy + Stevens, Souter, Ginsburg, & Breyer
Is intimacy between two consenting adults covered in the constitutional right of privacy? Does it merit "strict scrutiny"?
We've had a series of cases, which expanded the right of privacy fromn strictly between married couples, Griswold vs
CT (1965) through a general right of abortion, Roe vs Wade (1973). Does ANY initimate relation merit
such right that the state must prove a compelling interest to regulate or forbid it?
Yes, it does. Laws against sodomy primarily involved sex between a partner who did NOT consent, could NOT consent,
or was legally immature to consent. Such laws did NOT target consensual adults in private until recently. We are
carving an exception to the rule; otherwise states may prohibit sodomy, as they have for centuries.
What Kennedy did NOT write was that the Court was FOLLOWING public opinion, for six out of ten think that such laws DO
violate a right to privacy, which Scalia and Thomas specifically deny. He limited the question only to consenting adults
in privacy, and noted that such laws have been repealed or blocked continually in eleven of the remaining 25 states that had
such laws in 1986. Only nine specifically target homosexuals in their statutes.
Kennedy also noted that such laws penalize far beyond misdemeanors. Petitioners must register as "sex offenders"
in Texas and in neighboring states. The state MUST prove its compelling interest, and Texas cannot. It does NOT
enforce such laws; they are merely on the books. Thus, the Court in Bowers did not appreciate the right of
privacy involved, and the Court now overrules the precedent.
Sandra Day O Connor concurred in judgment as #6 through the Equal Protection clause. States cannot target a specific
class on sodomy. However, such a stand is problematic, and it invites more cases where the state does not mention orientation,
but it enforces the law only against homosexuals. It was a similar law in Georgia in Bowers, and since repealed
that the Court ignored. In fact, Hardwick was never prosecuted for the incident. It was critical in that Lewis
Powell then joined the four to uphold the law. Later Powell admitted he'd made a mistake and should have joined the
four to invalidate the law.
Scalia + Rehnquist & Thomas
Scalia once again shows his intemperment, after Shrub picked him as a favorite. He insisted that laws against sodomy
were on the books for centuries and, of course, such laws will be unequally enforced, because they target behavior.
Therefore, the states do NOT have to justify them.
Then Scalia goes off the deep end, accusing the majority of joining the "homosexual agenda", whatever that means.
As a man with nine children and no contraception, Scalia certainly can set an example of the "heterosexual agenda": reproduce
like rabbits -- like Pennsylvania Senator Rick Santorum. He also compares Bowers with Roe, two
precedents which go in OPPOSITE directions. He doesn't hide his view that all right of privacy should be overruled.
Thomas provides the comic relief. He states the laws are silly, but it's to the legislature to repeal them.
Had the Supreme Court done the same in Loving vs VA (1967), and the Virginia legislature not repealed its law
against miscegenation, then Uncle Clarence could face arrest the next time he went with his Caucasian wife to Virginia!
Scalia mentions laws against miscegenation as advancing racism, as if laws against sodomy do NOT advance homophobia!