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June 26, 2003

Supreme Court Waffle

For Sandra Day O'Connor, does the Constitution today not mean the same thing as it did seventeen years ago, or does she owe a large portion of the population an abject apology?

Not that I disagree with her vote to strike down the Texas sodomy law, but when faced with the very similar Bowers v. Hardwick case in 1986, one dealing with a Georgia antisodomy law, O'Connor voted with the majority to uphold that law, finding that:

(a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 190-191.

(b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Pp. 191-194.

(c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 194-195.

(d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U.S. 557, distinguished. Pp. 195-196.

(e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 196.

Those findings are pretty definite. Now, constitutionally speaking, nothing has changed since 1986. There have not been any additions or deletions to that document, so either O'Connor voted incorrectly then, or incorrectly now. Either way she needs to apologize to somebody.

Of course, if O'Connor ascribes to the liberal theory of a Living Constitution, her switch is explainable, if somewhat surprising for a Reagan appointee. Given this vote, as well as the ones she cast in the Michigan affirmative action cases, it appears certain that she does.

Maybe she should apologize to Reagan.

Update: Lots more coverage here.
Also, Crimen Falsi argues that the grounds applied in the case are too broad.

Correct me if I'm wrong about this, but it pretty much says that if it goes on behind doors and its sexual, it's covered. Either that, or the broader reading is that the state has no right to impose any moral judgements on anyone. I'm not sure which reading holds up better...
Get ready for the gay marriage cases. At first, laboring under press reports that the First Amendment protected the right, I thought there was a First Amendment free speech route to get there. Nope, with 14th Amdnement substantive due process, we can go there straight away, and just argue that denying gays the right to marry the person of their choice (Loving v. Virginia) imposes a moral judgement on them.

The other thing this ruling probably creates is a defense to kiddy pr()n and polygamy charges. What you do in your own bedroom is your own business, and the state can't regulate it, right? So if you have sheep in there, or kiddy pr()n, or a couple wives (or for that matter your 16 year old daughter) how can the state possibly intrude? It would be violating your privacy.

I sincerely doubt kiddie pron will eventually be legalized due to this decision, even if a strict adherence to the logic of the decision would make it so. Sandra's shown that she's no fan of strict constructionism, there's no reason to think that future judges will be, either. If the Supremes of the future are faced with the choices of legalizing kiddie pron, issuing a muddy, widely despised opinion, or overturning today's opinion, it will be one of the latter two that they choose.

Posted by Bigwig at June 26, 2003 12:15 PM | TrackBack
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You know that a ruling involving children would have to hinge on consent -- no mud necessary and no dodging, either. OTOH, the matter of marriage *is* a matter of "morality" -- Moslems have no problem with four.

Just becuase *you* believe God ordained it doesn't mean it is true, right, fair, or a law of nature. Live with it.

Posted by: Meg at June 26, 2003 01:24 PM

I agree with Meg that ability to consent is the key. Blogged it here. I think it will overturn adultery, adult incest and polygamy laws. Bigamy is fraud, so will remain.

Gay marriage has as much to do with the rationale for governmental registration of marriages as with sex. If states straighten out the property rights issues and the child custody issues, then gay marriage has no impediment. Gays in the military, as mentioned at Glenn Reynold's, is also probably covered here.

Posted by: Chuck at June 26, 2003 03:30 PM

> Bigamy is fraud, so will remain.

Fraud on whom? The spouses?

Ah, the tax code.

Posted by: Andy Freeman at June 27, 2003 11:19 AM

There is nothing wrong with legislating morality, happens all the time. Oh, wait. Begging your pardon. I was thinking of Saudi Arabia.

I suppose once you choose a congenial morality legislating it is easy. It is not enough for a government to maintain the peace and assist with civil order. It must also uphold morality lest the Gods or god be displeased with us. Pray we don't pick the wrong morality or the wrong God.

Posted by: M. Simon at June 29, 2003 06:05 PM

The recent opinion should have no effect on kiddie porn whatsoever, because you can't have kiddie porn without exploiting kids. The decision specifically referred to adults. The only gray area might be something like kiddie porn cartoons or computer animation where no real children are actually involved. Otherwise, no need for a "muddy" opinion to keep it illegal as of course it should be.

Posted by: Gary Rosen at July 1, 2003 03:56 AM
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