Big Supreme Court Case

[duke37]

Not a lawyer here Pulsator so be kind. Isn't it almost a foregone conclusion that we are going to see some relief from sodomy laws or have them overturned entirely? Why would the Supremes (I call 'em that) agree to hear this case only to rule: see Hardwick?

 

Jeff

[Zeek]

It was reported on Kansas City TV that Missouri is one of only 4 state that still arrest gays on the sodomy law. So it is a big deal in Missouri as it is Texas.

[Rick Munroe]

>It was reported on Kansas City TV that Missouri is one of

>only 4 state that still arrest gays on the sodomy law. So it

>is a big deal in Missouri as it is Texas.

 

It's actually 13 states:

 

http://asia.cnn.com/interactive/maps/us/sodomy.laws/popup.us.sodomy.laws.map.gif

 

Here's the full story from CNN: http://asia.cnn.com/2002/LAW/12/02/scotus.sodomy/

[Zeek]

Rick, Thanks for the full story and the map.

[Guest soccerstud]

Guys, I wish I could be as optimistic as you seem to be. This Rehnquist Supreme Court is the most conservative court in a long while. Unfortunately, I wish this case had NOT come up at this time, even if it meant waiting for several years. I would not want to have everything riding on Sandra Day O'Connor (conservative who, if I remember correctly, voted the wrong way on the original sodomy case in Georgia) or Kennedy (also very conservative). It is true that this case, (unlike the original Georgia sodomy case) presents an "equal protection" argument (in that Texas explicitly changed its statute to make sodomy OK for heteros but continued the criminalization of sodomy by gays) and O'Connor and Kennedy applied the "equal protection" argument in favor of gay rights in the Colorado gay initiative case (Romer). But the conservatives (including O'Connor and Kennedy) would have to get over the argument that if they ruled the Texas law unconstitutional on "equal protection" grounds, that would carry heavy weight for any number of other gay rights issues, such as the rights of gays to marry. And this Court is NEVER going to go there.

 

From my perspective, Rehnquist, Scalia and Thomas are among the most harmful justices in US history when it comes to protecting individual rights. (Totally hypocritical because the mantra of conservatism is indivudal liberty as opposed to government control; but these guys are issue-driven and will go to any lengths to deny gays and other minorities equal rights. The Michigan affirmative action case, which is also on the Court's agenda this term, is just one example.)

 

I will be the most pleasantly surprised guy around if the Court decides this case the "right" way. All of this is just one more reason that I don't begin to understand how a gay man can support Bush and the baggage (Ashcroft and many others) that comes along with him (or support virtually any other Republican, for that matter). We need to keep up the fight!

[Guest gryphone]

One of the reasons the Court accepts cases (according to a friend who clerked there) is to see that laws are uniformly

applied across the country. Thirteen states with sodomy laws is a clear minority; the same standard has been used in

regard to executing juveniles and other medieval notions.

 

A REALLY interesting story appeared in the NY Times of Dec 3 or 4, by Linda Greenhouse, the Times Court correspondent,

regarding the late Justice Lewis Powell, who was the swing vote upholding anti sodomy laws the last time around in the late

80"s and he subsequently publicly regretted his decision. He was quoted as saying,"I've never met a homosexual" and then the

article goes on to point out that there have been at least 22 gay clerks on the court and for several years in a row one of Justice

Powell"s four clerks EACH YEAR was gay.

 

My friend the ex Court clerk (gay, but nor a Powell clerk) says that one of the clerks main jobs, aside from doing all the research

and writing all the decisions, is to educate the Justices about life in the world outside and among people different from the justices themselves, which is just about everyone, of course. My friend is already corresponding through the ex-clerk network to begin

an education project for the sitting justices witihout outing anyone and this is one high-powered group, all of them dying to get

onto the court themselves; this ambition of course cuts both ways, how much to educate, how much to keep quiet, but we've seen

what the presumed quietness of Justice Powell's clerks has gotten us.

[woodlawn]

What is so momentous about this case? As someone else correctly points out above, since the Georgia case was decided in the 80s all but 13 states have gotten rid of sodomy laws that target activity by gays. And even in those states that still have such laws the laws are rarely enforced.

 

If the Court were to deal with an issue like adoption, marriage or job discrimination that has a real effect on the lives of many gay men, THAT would be momentous. Don't hold your breath.

[Spida]

IMHO I find it sad that there are these laws and even if they are not enforced they are there! And upheld somewhat recently (80's). I love this country and would not want to live anywhere else, however, I find it Puritan and very hypocritical that our country has these laws.

[handyandy]

CNN today has a cluster of articles on the current case, its background, and related matters such as the Georgia case, etc. Fills in the history in case anyone missed some of it.

 

http://channels.netscape.com/ns/news/package.jsp?name=supreme/supreme

[Guest Pulsator]

It's true that sodomy laws are almost never enforced directly against same-sex partners for having sex privately. What makes them significant is that courts cite them in other contexts - for example, in denying discrimination complaints by public employees, or in refusing to allow gay parents to have continuing contact with their kids. The "secondary effects" of the laws explains why it is important to knock them off.

As for Kennedy and O'Connor and gay rights - it's important to remember that Kennedy wrote the Court's opinion in Romer v. Evans, the historic equal protection gay rights victory of 1996 (Colorado Amendment 2 case). O'Connor voted together with Kennedy in that case.

I'm informed that Lambda Legal has assembled an advisory committee of former Supreme Court clerks -- some gay, some not -- and the consensus of that group was that it is possible to get either Kennedy or O'Connor or perhaps both to vote to strike down the Texas law - put that together with the four moderates and you get 5 or 6 votes to strike the law. Of course, this is speculation. And it also heavily depends on Stevens and Ginsburg staying healthy and staying on the court through the end of this term.

The argument will be in April.

[Guest Fin Fang Foom]

Everyone chill.

 

The Supremes will rule in "our favor" - and it will be unanimous.

 

You heard it here first.

 

Presciently yours,

 

FFFF

[Guest Fin Fang Foom]

>Everyone chill.

>

>The Supremes will rule in "our favor" - and it will be

>unanimous.

>

>You heard it here first.

>

>Presciently yours,

>

>FFFF

 

That should have been: "FFF". I've not become Fearsome Fin Fang Foom.

 

Instructively yours,

 

FFF

[Guest Love Bubble Butt]

Are you being serious? You really think it will be unanimous in our favor? There is no way in hell that Rhenquist, Scalia, or Thomas will vote in favor.

 

But let's take a poll. Everyone guess what the decision will be and by how many justices (e.g., 5 to 4 in favor). The winner will be the first person to post (i.e., earliest posting date) with the correct result. Each entry must state which way it will go AND the vote tally. The winner gets a free one-hour booking with the escort of their choice and all the losers have to pitch in to pay for it.

 

Anyone game?

 

My guess: 6 to 3 in our favor. (If I win, I want either Niko #3 or Rick Hammersmith).

[Guest Pulsator]

I think Love Bubble Butt may have the correct number. The "moderate 4" -- Stevens, Ginsburg, Souter, Breyer -- are very likely to vote for us. The "ultra-right-wing 3" - Rehnquist, Scalia, Thomas -- are almost certain to vote against us. The "swing voters" in the center, Kennedy and O'Connor, are the subjects of intense speculation. Kennedy wrote the wonderful, gay-affirmative decision in Romer v. Evans in 1996, striking down the obnoxious Colorado Amendment 2 on an equal protection theory, and O'Connor joined his opinion. That's the main ground for hope here. Also, that this case, more clearly than the 1986 Georgia case (Bowers v. Hardwick), presents an indisputable equal protection basis for striking the Texas law (and the laws of at least other states.

So my prediction has been 6-3, but it may be that the 6 can't agree on one theory of the case, so it may be a 4-judge plurality plus a 2-judge concurrence.

[Guest Fin Fang Foom]

>The

>"moderate 4" -- Stevens, Ginsburg, Souter, Breyer -- are very

>likely to vote for us.

 

Do you really believe there aren't any liberals on the court? Just "moderates"?

 

Curiously yours,

 

FFF

[Guest Merlin]

I have predicted on another forum that it will be a unanimous opinion in our favor, BUT on the right to have privacy in the home. I do not believe the court will use the equal protection clause, because gays do have the same right to sodomy or marriage as others, i.e. the right to do so with a member of the opposite sex. Using the equal protection clause would open the way for the clause to be used impair the protections for children and the family which have always been regarded as a legitimate purpose for legislation. If gays have a constitutional right to "marry", then what form of marriage is not a constitutional right? A man and his dog? His sheep? Two men and a woman? A man and many woman. If you value democracy, then you should deplore the use of the constitution to creat new rights such as these. When the people through their representives adopted the 14th Amendment, they certainly did not intend the result now advocated. No one would have suggested it and if it had been suggested, the Amendment would have been rejected. Once the 9 Justices "legislate" this new right, it will beyond the power of the people to legislate in the area except by Constitutional amendment. However appealing "benevolent" dictatorship by the court may seem, many of us still believe that Democracy works best.

[N.N.]

Why does this matter?

 

Bear in mind that when Bush was governor of Texas, he promised

to veto any attempt to repeal the state's gay-only sodomy law,

saying that he liked the message it sent.

 

In addition to the specific points Pulsator brought up

about secondary effects, these laws reinforce the idea

that gay people are second class.

[Guest Bitchboy]

these laws reinforce the idea

>that gay people are second class.

 

That to me is the whole deal in a nutshell. While most of us will go along living our lives as best we can, we are still given the stamp of disapproval by our very own government. Until that changes, how can we expect the ignorant and/or uninformed to have any basis for reconsideration? I spent years pretending I was something I'm not; no more ...

[BigD]

>... legitimate purpose for legislation. If gays have a

>constitutional right to "marry", then what form of marriage is

>not a constitutional right? A man and his dog? His sheep?

 

Since a dog is alleged to be a man's best friend... why not?

Sheep? Seriously, as society evolves, our interpretation of what is

"constituionally right" adapts, augments, re-defines itself

to fit the cultural context. When the 14th Ammendment was adapted

it did just that. It should continue to do so. The Court needs

to recognize the gay lifestyle in its present context, not by

the stigma that was overwhelmingly associated with it in the past.

We have come some distance. And that gay marriage should be

comparred to marriage between humans and animals is insulting.

The Sodomy laws need to ruled unconstitutional to protect

equal protection for gays and heteros. Oh, that they would do so.

[Guest Pulsator]

By the standards of the Warren Court (early 1950s through late 1960s) I don't think any of the current Justices would be considered "liberals" as such. Certainly they are to the right of such liberal stalwarts as William O. Douglas (just read his dissent in the gay immigration case, Boutilier, from the 1960s) or William J. Brennan, Jr., and those two were definitely to the right of Thurgood Marshall.

You've got to remember who appointed the current crop and the complexion of the Senate that confirmed them. Stevens and Souter are Republicans, albeit moderate ones. Ginsburg and Breyer may have been appointed by Clinton, and may be considered to take the "liberal" position on some issues, but are generally moderate enough to have won lots of Republican votes for confirmation. (Breyer, for example, when appointed to the 1st Circuit back in the final year of the Carter Administration, was enthusiastically endorsed by Orrin Hatch, the right-wing Utah Republican Senator.) And I know a bit about Breyer, having taken two courses with him in law school before he became a judge.

Anyway - they're moderates in my book, but generally reachable on gay rights issues.

[Guest Pulsator]

It can't be unanimous based on privacy. Rehnquist doesn't believe that the constitution even has a right of privacy, and has strongly indicated he would never vote to extend it to anything new. Ditto Scalia and Thomas.

And the last big abortion decision, Planned Parenthood v. Casey, made it clear that Kennedy and O'Connor are also leery about privacy - they took an area of the law that had been marked by privacy rhetoric since Roe v. Wade in 1974 and changed the rhetoric to "liberty" - they avoided using the word privacy in their joint opinion in the Casey case.

It might be 6-3, based on a liberty argument, but that would require O'Connor to effectively disavow her vote in Hardwick. She might do it, might not. I predict she is more likely to vote to strike down the law on an equal protection rationale.

Actually, equal protection is the more "conservative" route in this case - it's a "textually based" right, unlike privacy - and would cabin the result, since it would most likely affect only the 4 states that have same-sex-only sodomy laws, as opposed to the 9 that criminalize all anal or oral sex regardless of the sex of the partners.

[Guest Pulsator]

I'm surprised there's been no discussion yet about the momentous event that occurred on Monday: The Supreme Court agreed to review the Texas sodomy law case. This is potentially the biggest gay rights case in the history of the Supreme Court. According to Lambda Legal Defense, the gay rights public interest law firm that is representing the two gay petitioners in the case, the stars are lined up right now for the best chance we've ever had to knock off all the remaining state laws against gay sex. With the recent election, and the increased age and recent health problems of Justices Stevens and Ginsburg, it seems likely that Bushie will have some Supreme Court picks over the next few years that will make the Court more conservative. At present, we've got at least 4 moderate-to-liberal Justices who are likely to vote to strike down sodomy laws, and two others who are considered "persuadable" on this issue - Anthony Kennedy and Sandra Day O'Connor. After this year, finding 4 votes for our cause will suddenly become much more difficult.

So this is an important case to watch. The name is Lawrence v. State of Texas, and the Court will hear arguments in April with a decision expected by the end of June.