(The Return of) Ignatz, by Sam Heldman

Monday, March 24, 2003

The last case to be argued this week is one of the Term's high-profile cases, Lawrence v. Texas, about Texas's statute prohibiting gay oral and anal sex. Some states (e.g., Alabama) prohibit oral and anal sex between any people who aren't married to each other. Not those broad-minded and worldly Texans, no sir; they think that those things are just fine as long as they involve one Texan man and one Texan woman. But the same acts are crimes in Texas, if they involve people of the same sex. And this is no mere hypothetical, or cobweb-covered and never-enforced legislative relic; this case involves two guys who were prosecuted and convicted for violating this law.

As you know, the Supreme Court in 1986 upheld Georgia's anti-sodomy law in Bowers v. Hardwick. There are essentially two ways that Lawrence could win in this case: (a) by overruling Bowers, holding (as a matter of due process or the "right to privacy") that the government has no right to prohibit this behavior; or (b) by an equal protection theory, based on the fact that this law (unlike the law upheld in Bowers) applies only to same-sex conduct.

You can write off (or, if your view is different from mine, "count on") C.J. Rehnquist and Justices Scalia and Thomas; you can pretty well tell from their dissent in the Romer case that they firmly believe that governmental discrimination on the basis of sexual orientation is perfectly ok under the Constitution. And I trust that the four quasi-liberal Justices will be willing to vote for Lawrence. (We can guess, from his dissenting vote in Bowers, that Justice Stevens will; and my guess is that Justices Ginsburg, Souter, and Breyer will as well).

So, as so often happens, we are left wondering whether the "liberal" side can pick up either Justice Kennedy or Justice O'Connor. Both of them ruled for the "gay rights" position in Romer (and Kennedy even wrote the opinion), based on an equal protection theory; but that case was different enough that the majority didn't even cite or distinguish Bowers. And you also have to remember that Justice O'Connor voted with the majority – i.e., against the gay-rights position – in Bowers.

Where does this leave us? This is a very hard one. When the Court granted certiorari not long ago, I suggested an optimism about reversal, on the theory that four liberal justices wouldn't have voted for certiorari (and I assumed that they were the ones who did so) unless they were pretty sure they could pick up a fifth vote for reversal. So, based on my trust that the Justices can count votes better than I can – and that the cert grant wasn't driven by Justices Scalia, et al., looking merely for an occasion to reaffirm Bowers -- I say "REVERSE."

posted by sam 7:18 AM 0 comments


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