Texas Sodomy Law Challenge in Supreme Court

Reuters ^ | Dec 2, 2002 | staff

[polemikos]

WASHINGTON (Reuters) - The U.S. Supreme Court said on Monday it would decide a challenge to a Texas law that makes it a crime for gays and lesbians to have consensual sex in their own homes, agreeing to consider overruling its 1986 decision that upheld state sodomy laws.

The high court said it would hear an appeal by two men convicted of engaging in "homosexual conduct." They argued the law violates constitutional privacy and equal protection rights, subjecting gays to criminal penalties while allowing different-sex couples to engage in the same conduct.

The justices also said they would consider overturning their 5-4 ruling in 1986 that handed gay rights advocates a defeat by declaring that homosexuals have no constitutional right to engage in sodomy.

[weegee]

Change the nature of the case under consideration. What if the men had been smoking marijuana instead of having sex together? Would the police be able to arrest them on this charge or disregard the evidence before them since they were not at liberty to learn of the action?

They were permitted entry (A) because of an emergency call claiming that an assault was in progress and (A 1/2) they entered easily because the door was unlocked.

There have been other cases as to what law enforcement may do inside a dwelling. The nature of the original call (which was a hoax designed to get the officers in there) proved to be empty. The local courts should have proscuted the men as charged, with the state supreme court examining the nature by which the charge was filed.

I fail to see how this case sets a condition to overturn the law that they were violating.

[steve-b]

Now, someone please try to say the cops were wrong

Easy. The police had no mandate to search for anything other than the alleged intruder. Thus, they cannot possibly have had justification to closely observe (and determining that two people are engaged in sexual congress rather than in mere close proximity requires very close observation indeed) the parties in this case. QED.

[breakem]

333 is it your argument to deny rights so people aren't "mainstreamed."

[B-Chan]

Whatever. At least I posted some evidence to back up my claims, unlike you, my friend.

[AntiGuv]

I will continue to defend that tradition of moral thought no matter how much "mopping up" occurs or how many people disagree.

Sooner or later you'll die - that's the ultimate 'mop up'....

[Jorge]

Face it: all law is legislated morality. The only question is which morality we will have as the basis of our laws. I choose traditional Judeo-Christian morality, which always and everywhere condemns same-sex intercourse as intrinsically disordered (i.e. immoral).

So then you also would support out-lawing adultery which according to traditional Judeo-Christian morality, is always and everywhere condemned.

Lets throw Rudy Giuliani and half of the heterosexual population in jail. Good idea.

[wcbtinman]

"Are you willing to personally execute a person for having homosexual sex?"

Do you still beat your wife?

[Coronal]

Griswold v. Connecticut.

[ffrancone]

The Fourth Amendment enumerates a right to be secure in one's person, papers, and effects. It represents a broad right to freedom from government intrusion into one's private affairs without just cause. And consensual sex in one's own bedroom is about as private an affair as you can name.

My perspective is that the constitution needs to be interpreted according to the original intent of the founders. If you throw out the fluff from the left since the 1930's (the 'living constitution'), the fourth amendment applies ONLY as against the federal government. The current case is to declare a state law unconstitutional.

Even a passing knowledge of the history of the drafting of the constitution would convince you that the founders had no intention of preventing the states from passing anti-sodomy laws. They would have though you were from Altair 9 had you made the suggestion.

There is a group of libertarians that just do not understand this. The only difference between them and liberals (on judicial interpretation) is that libertarians want a 'living constitution' where they can make up and add new stuff whenever a libertarian judge wants to instead of going thru the process of amending the constution. Their position in this regard is as unprincipled as the left's.

I am not going to keep making the same point I have made in previous posts. If you think sodomy may be a constitutional right, go study the history of the passage of the constitution. It will change your mind, even if you are from Altair 9 :)

[weegee]

If you've been following this story (I recall when it originally even hit the news down here as a local story) then you would know that it was a setup conspired by the 3 men (the caller and the 2 sexual participants).

I don't know but that the officers were even in on it. Who knows what sex acts are and aren't legal in their community? This wasn't the vice squad.

[southern rock]

Now, if the majority of a STATE voted to keep sodomy, witchcraft, or drugs illegal, it would not seem that it would be a right retained by the people of that state, would it?

Nope. 51% of any population do not get to tell 49% of the same population what they can and cannot peacefully do. That would be democracy. Democracy is NOT an American form of government at any level.

[steve-b]

Here's how it is. Each man was made for a woman, and each woman for a man.

God told me that you, yourself, were made for Janet Reno. Get down to Floriduh and do your duty.

[AntiGuv]

Any speculation on why it might legitimize gay "marriage"?

If the Equal Protection Clause is judged to overturn anti-sodomy statutes, then it may similarly overturn DOMA (and related) statutes under the same legal rationale. In short, if you cannot discriminate against gays in criminal statute, you cannot discriminate against them in civil statute either. That's why I expect the Court to overturn on some sort of Freedom of Association or Right to Privacy basis which would prevent such an application. It all comes down to how broad or narrow a ruling the Justices wish to issue (I have no doubt they will overturn - or else they would've simply let the Bowers v Hardwick ruling speak for them).

[Texaggie79]

Democracy is NOT an American form of government at any level.

The state still functions as a representative republic. What do you call it when a state has a vote on marijuana laws? If that is unconstitutional then you can just call me Texlonghorn.

[Hodar]

This is one of the most common mistakes made by libertarians when they argue for a return to our original constititional scheme. That scheme envisioned that the State governments could regulate morals pretty much as they chose.

I believe you misunderstand, Libertarians want the goverment under tight control, like it was in the "original counstitutional scheme". Goverment has little to offer in the way of enjoying life, and a great deal to take away. Libertarians grant that goverment is a necessary evil, and that it is required for defense, highways, education, tax collection and police. However, the goverment has NO business in the bedroom. To lump the two topics together is nonsequitor. A cow is brown, grass is brown therefore cows equal grass. Everyone gets one shot at life. There are no garrantees as to the quality of life I will enjoy, nor the duration. I most strenously object to any person who feels so right in their faith, or emotional baggage as to dictate how I live my life. A libertarian simply believes that they will live life the best way they know how; and neither ask, nor want governmental assistance. We do not inflict our opinions upon others, and resent those who would do so to us. Pretty simple stuff, actually.

[AntiGuv]

I actually haven't followed the story that closely so I stand clarified.. Whatever the case may be, it doesn't alter my view that such statutes should get repealed and/or overturned.

[weegee]

I have a question. Who filed the false police report? Does anyone know?

An "ex"-lover (meaning homosexual, not some bigoted racist homophobe) neighbor placed the call.

Know many homosexuals who would seek enforcement of such a totalitarian law?

[Hodar]

... decision will be another step toward "mainstreaming" homosexuality.

Let's see, they work, they pay taxes, they have lives, and people seem to 'justify' discrimination against these people because of various religeous affiliations. Wasn't too long ago that these same religeous affiliations felt the same way about blacks/jews. No one is forcing you to be gay, no one is forcing you to associate with gay people, no one is saying that public gay sex is permissable. They just want (and deserve) the same rights you enjoy.

[ffrancone]

Breakem:

You are arguing as if the founders had passed the constitution you want. They didn't. If you reject the idea of interpreting the constitution by the original intent of the authors (which you obviounsly do), then you can make the constitution into anyhing you want as long as you have a majority on the supreme court. Then the constitution means NOTHING because when your political opponents take your majority away, the constitution becomes what they say it is today.

This is a pernicious process that eliminates the constitution and the rule of law.

I believe it is your problem to explain why this is a government power and why you are willing to allow your government corntol of you or your neighbor's behavior in this area.

I will try once more. You are arguing as if the constitution were written by Ayn Rand. It wasn't. I'm not going to have a discussion about what an ideal constitution would contain because it is irrelevant to whether Sodomy is a constitutional right under the US CONSTITUTION. Not the constitution you would write. Not the constitution Ayn Rand would write. But the actual constitution. The history of the actual constitution lends absolutely NO support to your argument.

BTW, the state requires you to wear clothes in public. That'll make it hard for libertarians to conceal the guns you want to use to defend your right to dress as you choose :)

[templar]

But there is no respect in which the constitution should be read to include a RIGHT to commit sodomy

Ammendments IV, IX, and X.

The government is , basically, suposed to stay out of peoples private affairs. I'm not pro homo by any means, but I see sodomy laws as unwarranted government intrusion. Regulating public behavior would be a different situation.