December 02, 2002
SCOTUS to review sodomy case

The Supremes are set to hear a case that originated in Houston concerning Texas' sodomy law:

The justices will review the prosecution of two men under a 28-year-old Texas law making it a crime to engage in same-sex intercourse.

The Supreme Court has struggled with how much protection the Constitution offers in the bedroom. The court ruled 5-4 in 1986 that consenting adults have no constitutional right to private homosexual sex, upholding laws that ban sodomy.

"Gay men and lesbians have been waiting for the opportunity to convince the court it should take a different view of their constitutional rights," Ruth E. Harlow, legal director of the New York-based Lambda Legal Defense and Education Fund, said Monday.

The court faces several questions in the latest case. Among them: Is it an unconstitutional invasion of privacy for couples to be prosecuted for what they do in their own homes? Is it unconstitutional for states to treat gays and lesbians differently by punishing them for having sex while allowing heterosexual couples to engage in the same acts without penalties?

Some people will argue, as this assistant DA has argued, that this should be a legislative matter rather than a judicial one:

William Delmore III, an assistant district attorney in Texas, said people who don't like the law should take it up with the Texas Legislature, not courts.

He said homosexual sodomy has been considered criminal behavior for centuries. The conduct "could not conceivably have achieved the status of a fundamental right in the brief period of 16 years" since the Supreme Court last reviewed it, Delmore wrote in the state's court papers.

In a sense, I agree with him. This issue should be addressed by the legislature. Unfortunately, our Lege is notoriously uninterested in such matters. It doesn't bother them that a large group of citizens is denied a right that the rest of us take for granted, namely the right to have sex with another consenting adult. Really, this issue should be addressed at the federal level, just as civil rights laws had to be enacted at the federal level in the 1960s to ensure that blacks enjoyed the same Constitutional rights regardless of which state they happened to live in.

Given that the federal government is unlikely to do anything about this any time soon, I see no choice but for the court to step in and rule that the state of Texas and others with similar laws have overstepped their bounds. I don't know if they will - the 1986 case is staring them in the face - but they should. And if rooting for the court to throw out this odious infringement on civil rights makes me an advocate of "judicial activism", then so be it. But know this: Anyone who thinks that this law should be kept on the books is not allowed to call himself or herself a proponent of less government.

I think Jesse gets this exactly right:

Sodomy laws should simply not exist, because "sodomy" itself offends no statutory principle of conduct. There is nothing about a man and another man, or a woman and another woman engaging in sexual conduct that defies the sense of statutory law in place on every other law of sexual conduct. It's creating a new basis of law that's little more than "I don't wanna see that". I mean, if that's a basis of law from now on, can I have anti-Public Displays of Affection statutes put in place? It's one of those edicts of common sense that more people should follow - if you don't like it, don't watch it/get involved in it. It's not hurting you, and more importantly it's not depriving anyone of their rights.

Some background on the case from when it was still in the Texas legal system can be found here. Sam Heldman gives his opinion here. Glenn Reynolds, who is rooting for the court to strike this law down, has written at great length about this sort of thing.

Posted by Charles Kuffner on December 02, 2002 to Legal matters | TrackBack

I agree with you up to the point of the court stepping in. Yes, our Legislature should reverse this aberration; No, courts should not tread where they have no sovereignty. I'm always concerned with unelected officials deciding on behalf of the less enlightened, even when the solons are right.

Posted by: B. K. Oxley (binkley) on December 3, 2002 9:41 AM

Define "no sovereignty" please? Can you define a role for the Supreme Court that preserves judicial review and does not at some point involve "unelected officials" deciding Constitutional questions "on behalf of the less enlightened?" Given that the Texas law, as I understand it prohibits homosexual sodomy while permitting heterosexual sodomy, there would seem to be a clear equal protection issue here. So why then is it inappropriate for the Court to rule?

Posted by: Mark on December 3, 2002 11:46 PM

As a public policy matter--one I disagree with--the Texas Legislature decided this issue, and unless this conflicts with other law, so the matter stands. The "equal protection" argument is the strongest one, of course, but sexual practise is purely a social issue, not a legal, political or economic one, and should not be as well protected in this regard.

It might also amuse you to know I believe the courts have gone far overboard in using the Commerce Clause to empower Congress to regulate the states. I also hold several other toady positions and think San Antonios had a perfect right to not floridate their water (not to mention their election, a pun hard to resist), as bad a decision as that was.

Posted by: B. K. Oxley (binkley) on December 4, 2002 9:11 AM

I'm not sure what San Antonio's quixotic battles over fluoridation have to do with this, Binkley, especially since the issue was decided by an election.

I know we have a fundamental philosophical difference here, but I believe that the Founders' original idea of the courts was to step in when the legislature did something unconstitutional. (That checks-and-balances thing I keep hearing about.) If you want to argue that there's no constitutional right to a particular form of consensual sex in one's own home, knock yourself out. Arguing that the court has no sovereignty in ruling on a law regulating such an activity seems bizarre to me.

Posted by: Charles Kuffner on December 4, 2002 10:02 AM


Where does the Constitution say that you have a "right to a particular form of consensual sex in one's own home?" It never says anything remotely connected to that. What's bizarre is the idea that this is a constitutional issue.

Posted by: Owen Courrèges on December 4, 2002 2:53 PM


You're kidding, right? Because if you're not, I'm gonna propose a law making it illegal for anyone who's ever been a member of the College Republicans to have sex with another College Republican. I mean, if it's not in the Constitution, why can't I?

Posted by: Charles Kuffner on December 4, 2002 4:01 PM


You can certainly try, although you'd fail because while many Americans would see a moral issue involved with homosexual sodomy, most wouldn't with regards to sex between Republicans. Bottom line: the Constitution isn't designed to keep any and all laws we might think are bad or wrongheaded from being written. If you don't like a law, fight it at the ballot box.

Otherwise, I suppose I can fight to have Supreme Court justices nominated who will interpret the Constitution as saying that all liberals must be burned at the stake. Why not? If it doesn't matter what the Constitution says, why can't the Supreme Court do just that?

Posted by: Owen Courrèges on December 4, 2002 4:15 PM

That's exactly my point. This is a popularity issue. Some percentage of the country thinks homosexuals are bad, so laws like this get passed. Not too long ago, similar laws were passed because a lot of people thought blacks were bad. It wasn't right then, and it's not right now. You don't have to be in the majority to be an American citizen.

Either you believe that adult citizens get the same rights or you don't. If you believe the Texas anti-sodomy law is justified, then you don't believe that adult citizens get the same rights, and I find that reprehensible.

And please - burning at the stake? The Constitution may not specifically outlaw murder (though there is that bit about life, liberty, and the pursuit of happiness), but I think you'd have a hard time arguing that anti-murder statutes violate any of our countries founding principles.

Posted by: Charles Kuffner on December 4, 2002 5:40 PM


Please... Race and sexual orientation are entirely different concepts. The former is genetic and based upon physical appearance, the latter is not genetic and based upon behavior. Bringing up Jim Crow as a parallel is a stretch at best.

The bottom line is that this isn't a Constitutional issue. Showing moral outrage doesn't change this fact. And if a ruling that has nothing to do with the Constitution is allowed to pass, who is to say that they couldn't pass a dozen more? Goodness knows they already have - see Roe v. Wade.

This whole exercise is an attempt to bypass the democratic process, and I find that reprehensible.

Posted by: Owen Courrèges on December 4, 2002 6:48 PM

Not half as reprehensible as I find using the democratic process as a means to denying a basic right to a large class of citizens. Does that really not bother you?

I'm sorry, but I do think this is a constitutional issue. Either adult citizens (nonfelons, of course) get the same rights or they don't. Rights should not be restricted for a given class of individuals based on the whims of some state legislatures.

Posted by: Charles Kuffner on December 4, 2002 9:28 PM


I don't believe the right to sodomize a member of the same sex is a "basic right," and it certainly isn't a Constitutional right. What is being regulated is not a certain class of individuals, but a behavior, and the state can regulate behavior. You're simply wrong in claiming that there is a Constitutional issue at stake.

Posted by: Owen Courrèges on December 5, 2002 12:35 PM