Supremes Discuss Sex
The Supreme Court heard arguments in Lawrence v. Texas, 02-102, today. The issue is basically whether Texas and three other states can regulate what they call “deviate sexual intercourse with another individual of the same sex.” (Nine additional states ban what Texas’s brief called “the offense once known as ‘buggery’ regardless of sexual orientation.)
My favorite bits from the various reporting were these two paragraphs from the Toronto Star, attributed to AP even though other AP articles omit the second paragraph:
Texas said the law promotes the institutions of marriage and family, and communities have the right to choose their own standards.
“I don’t see what it has to do with marriage, since marriage has nothing to do with the conduct,” said Justice Stephen Breyer, one of the court’s more liberal members. “I don’t see what it has to do with children, since gay people can certainly adopt children, and they do.”
It basically sums up my opinion on the issue. I get really disgusted when people bring up community standards to justify their fear and hatred of things that are different. IMHO, consensual conduct between informed and consenting adults should not be a crime.
Especially in the case of Texas and the other three states that ban the conduct for homosexuals only, I can’t see how the status of the victim or partner can constitutionally be part of the “criminal act.” A charge of having sex with a male partner reads as bigoted and narrowminded as robbing a white person or trespassing while being black. [Obviously I'm not a big fan of 'hate crimes' as separate charges either, but that's another rant].
I really do hope the Supreme Court does reverse Bowers v. Hardwick, but given comments like these from Scalia and Rehnquist, I’m not sure how this one will come down:
“Almost all laws are based on disapproval of some people or conduct. That’s why people regulate,” Chief Justice William H. Rehnquist added dryly.
But then again, only three of the justices that heard Bowers in 1986 were still there to hear Lawrence today. Maybe times are right for some changes.
It’s good to see consistency, vis a vis both “social mores” crimes and hate crimes. I would hope the TX statute gets overturned. Even though Scalia made negative comments, I could see such an event happening. I could see O’Connor, Kennedy, Breyer, Souter, Ginsburg and Stevens being on the side of Lawrence. From what I’ve heard, in the rumor mill, Souter and Stevens may literally be on his side, so to speak. In any event though, O’Connor and Kennedy do have a habit of voting in favor of individual freedom in cases where the traditionally conservative bench votes for regulation (Planned Parenthood v. Casey comes to mind).
Politically I think Scalia should be leading the pack to strike down these laws, but politics and religion make strange bedfellows and even stranger ideologies. Even without him though, I think Lawrence has better than even odds of coming out on top.