[Dog Gone]

I expected this ruling, but not on these grounds. I thought the law would be ruled unconstitutional under the rationale of equal protection. The Texas law applied only to homosexuals, but heterosexuals could engage in the same acts without it being illegal.

But the fact that the court based the ruling on the "constitutional right to privacy", rather than equal protection is troubling.

It reaffirms that constitutional right that isn't visible in the words that were written by our Founders. If anything, this reaffirms Roe v. Wade, which was based on the same concept.

I'm not nearly as bothered by the ruling than by the legal rational used to get there. This has vast implications, I believe, although I haven't had the opportunity to read the case yet.

[aristeides]

Great quote from the Scalia dissent: "To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is."

Thus the stage has been set for the overturning of Roe.

[Texas Federalist]

The legal rationale shoulod be comforting. If it were based on equal protection, it could be used as a springboard to legalize gay marriage. Since it was based on the right to privacy, it likely cannot.

P.S. - For you textualists out there, read the 9th Amendment. The Constitutional protections we enjoy are not limited to the Bill of Rights. The Founders intended ALL natural rights to be protected. Not abortion rights and the liberal prenumbra rights that were invented. But rights such as the general right to privacy and, most importantly, the right to own property. If more conservatives would take this view instead of the view of a narrow constitutional interpretation, we could render the entire welfare state unconstitutional with one swift opinion.

[ellery]

Agreed, Dog Gone. I see an equal protection argument here, as well...but not a "privacy" one.

[lepton]

I thought the law would be ruled unconstitutional under the rationale of equal protection. The Texas law applied only to homosexuals, but heterosexuals could engage in the same acts without it being illegal.

Though first, by changing from homosexual to heterosexual they become different acts.

Second, an argument could easily be made that the reason for the acts to be not illegal for heterosexuals was a matter of privacy - since the acts were so similar to mating acts that the attempt to discern between them would be too invasive. That would not apply to homosexuals, since there are no acts approximating mating that they can conduct with such a partner.

[DryFly]

Where do you and other posters on this thread get the idea that a right, such as a right to privacy, must be specifically given to us by a provision in the Constitution? The Constitution, and the Bill of Rights, do not GIVE any rights. We don't need the Constitution to assert that we have any particular right. As the Declaration of Independence states, we are born with rights given to us by the Creator, and no act of Congress or of any state legislator can take them away. Just because the Constitution does not GIVE us a right to privacy, does not mean we don't have such a right.

[bvw]

Scalia's dissent reads as if it is Roe v Wade, for all intents.

[Right Wing Professor]

But the fact that the court based the ruling on the "constitutional right to privacy", rather than equal protection is troubling.

On constitutionalist grounds, agreed. On practical grounds, no. Had they found equal protection basis for homosexual sodomy, the next step would be equal protection grounds for gay marriage, adoption, etc.. However, a ruling based on privacy, however nebulous, can't reasonably be applied to marriage or adoption.

I've been sneering all week at conservatives who try to find a silver lining to the AA decision. But there really may be a silver lining to this one.