The Texas challenge raises two very important constitutional issues, privacy and equal protection. The privacy argument makes the same point my students made: government doesn?t belong in anyone?s bedroom. Sodomy statutes, like statutes against fornication or laws forbidding the use of birth control, are simply not within the proper power of the legislature. If the Justices rule on the basis of privacy, overturning the infamous Bowers v. Hardwick decision, then all sodomy statutes will be invalid.
From all accounts, oral argument in the case challenging Texas’ sodomy law was interesting.
Of course, there was the usual assortment of kooks outside the Supreme Court building—the “Reverend” Fred Phelps with his predictable “God hates Fags” poster, etc. But the crowd was described as largely sympathetic to the challenge, brought by Lambda Legal on behalf of two Texas men who were surprised in their bedroom by police responding to a false report. The men were subsequently jailed for one night and fined under a Texas law that makes sodomy between members of the same sex illegal. While some thirteen states still have sodomy statutes that apply (at least facially) to everyone, Texas is one of only four states with statutes targeting only gay sexual conduct.
When I discussed the case with my undergraduate class, the response was striking. Even students who began their comments with “I don’t approve of homosexuality” nevertheless opined that such laws should not stand. As one student pointed out, laws purporting to regulate private sexual conduct can only be enforced in an arbitrary and discriminatory manner. Such laws encourage abuses of discretion. What consenting adults do in their bedrooms is simply no business of the state. And they were absolutely astonished that the law applied only to gay conduct. As one said, “Even if you could justify sodomy laws, I don’t see how you can justify laws that only apply to some people.”
The Texas challenge raises two very important constitutional issues, privacy and equal protection. The privacy argument makes the same point my students made: government doesn’t belong in anyone’s bedroom. Sodomy statutes, like statutes against fornication or laws forbidding the use of birth control, are simply not within the proper power of the legislature. If the Justices rule on the basis of privacy, overturning the infamous Bowers v. Hardwick decision, then all sodomy statutes will be invalid.
On the other hand, the Court may take the easy way out, and rule that Texas’ statute violates equal protection because it applies only to gays. In that case, only four states will lose their laws. It is hard to imagine that the Court will uphold the Texas law, but an equal protection ruling would be a far less satisfying win.
If the media reports of the arguments are accurate, the attorney from the State of Texas did a great deal of fumbling and floundering in response to Justices’ questions. He can hardly be blamed for that; there really is no basis to argue for the continued vitality of laws like this. Support for sodomy laws rests on two fatally flawed assumptions: that the state has the right to legislate private moral behavior, and that it also has the right to enact laws burdening disfavored groups. In fact, both of these assertions were made by Texas’ counsel, who at one point justified the statute by saying that “some people in Texas don’t like gay people.”
During oral argument, questioning from the Justices broke down pretty much as one might expect: Justice Scalia, who wrote a shockingly hateful dissent in Romer v. Evans (the challenge to Colorado’s “Amendment Two” which essentially disenfranchised gay citizens in that state), asked questions characterized by Lambda as “skeptical.” Justice Breyer, on the other hand, characterized Texas’ position as “I do not like thee Doctor Fell. The reason why I cannot tell.” Others on the court fell into similarly predictable categories. It is almost certain that Justices Souter, Ginsburg, Stevens and Breyer will vote to overturn the Texas statute, while it is equally probable that Rhenquist, Thomas and Scalia (the Three Musketeers of the Extreme Right) will side with Texas. The swing voters are O’Connor and Kennedy. Kennedy wrote the majority opinion in Romer, which held that legislation based solely on animosity to a particular group of people is never proper. The auspices are thus promising. (The New York Times headline on its report of the arguments was “Court Appears Ready to Reverse a Sodomy Law.”)
It is true that a positive result in this case will not have an immediate impact on the lives of gays and lesbians, most of whom live in states where such laws have long been repealed. (Even Georgia, the state where Bowers arose, no longer has such a law.) But the symbolism will be important. Just how important depends upon how the Justices frame the decision.
A ruling is expected in June. Stay tuned.