NPB17 –
The sodomy issue is one that's shortly to be heard before the U.S.
Supreme Court, having decided this week to review a Texas law:
The Associated Press
"Gay-Rights Case Before Supreme Court" (Dec. 3, 2002)
http://www.newsday.com/news/nationworld/nation/ny-usgay033029506dec03,0,1393560.story?coll=ny-nationalnews-print
In 1986, the Supreme Court reviewed the sodomy laws and ruled that
adults of the same gender have no constitutional right to private sex.
At that time 24 states had sodomy laws. Today 9 states have a total
ban on sodomy (Alabama, Florida, Idaho, Louisiana, Mississippi, North
Carolina, South Carolina, Utah and Virginia). Four states (Texas,
Kansas, Missouri and Oklahoma) prohibit it between same-sex couples.
The case arose in 1998 when police were summoned to an apartment with
a false report, then entered the unlocked apartment and found two men
having sex. They were jailed overnight and fined $200 under the Texas
Homosexual Conduct Law. Under the Texas law, sodomy is defined as
oral or anal sex.
BOWERS V. HARDWICK
The 1986 case concerned Georgia resident Michael Hardwick, who was
arrested in his home. (The law convicting Hardwick was overturned in
Georgia in 1998.)
Voting to uphold the Georgia sodomy law were Justices Burger,
O'Connor, Powell, Rehnquist and Justice White wrote the opinion.
Burger and Powell also wrote their own supporting opinions.
In the opposition minority were Blackmun, Brennan, Marshall and
Stevens. Blackmun wrote one dissenting opinion; Stevens filed a
second.
The legal arguments holding the Georgia law constitutional were:
* The Constitution doesn't give a fundamental right to homosexuals to
engage in sodomy. No family relationship cases are related, so
arguments that private sexual conduct is protected are not relevant.
* Many states have historically criminalized sodomy, making arguments
for an "implicit" right irrelevant.
* A conservative attitude in the Court towards expanding "due process"
clauses to the Constitution.
* The majority of the population holds sodomy to be immoral.
Justices Burger and Powell also add that sodomy was illegal in most
states at the time the Bill of Rights was passed, and there's no
desire to expand the protections under the Constitution.
DISSENTING OPINIONS
Justice Blackmun's argument for overturning the George law were:
* the case doesn't concern sodomy but "the most comprehensive of
rights and the right most valued by civilized men," namely, "the right
to be let alone."
* state sodomy laws interfere with private, consensual activity
* the state was enforcing the sodomy law against homosexuals but NOT
heterosexuals. Justice Stevens in his opinion that this is a
violation of the Equal Protection Clause of the Constitution.
Justice Stevens adds the arguments that:
* individuals have a right to choose their behavior, citing court
cases where people chose not to salute the flag
* opinions have changed on the nature of homosexuality which should
prompt a review of the laws concerning sodomy
* religious justifications for supporting laws against inter-marriage
are unacceptable to the Supreme Court. They should be equally
unacceptable in the case of sodomy.
* the Fourth Amendment provides protection to activities in the home
that would negate sodomy laws. In Griswold v. Connecticut the Court
overturned laws against contraceptives on the basis of protecting
searches of homes; it could do the same in overturning sodomy laws.
I chose the legal arguments for the prior case because they will form
the basis on which the arguments will start for the Supreme Court
review during the current term.
You can find the details of the 1986 decision at:
Cornell Law School
Legal Information Institute
"Bowers v. Hardwick" (June 30, 1986)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/historic/query=%5Bgroup+478+u!2Es!2E+186!3A%5D%5E%5Bgroup+citemenu!3A%5D%5E%5Blevel+case+citation!3A%5D%5E%5Bgroup+notes!3A%5D/doc/%7B@1%7D/hit_headings/words=4/hits_only
One last note: Justices O'Connor, Rehnquist and Stevens are the only
ones on the Supreme Court today who were present in 1986.
Google search strategy:
Because this is a topical story, using Google News for the search will
get excellent updates to the case:
"Supreme Court" + sodomy + "1986 ruling"
"Bowers v. Hardwick"
Best regards,
Omnivorous-GA |
Clarification of Answer by
omnivorous-ga
on
10 Dec 2002 23:51 PST
NPB --
In this issue, I'll argue for privacy rights.
A government that governs least, governs best, according to Thomas
Jefferson. The need for the government to infringe on the bedroom is
spurious, at best. That said, sodomy laws are an unnecessary
infringement of liberty.
SUPREME COURT CASES
The precedent-setting 1986 case concerned Georgia resident Michael
Hardwick, who was arrested in his home. (The law convicting Hardwick
was overturned in
Georgia in 1998.)
The current case is one that's shortly to be heard before the U.S.
Supreme Court, having decided this week to review a Texas law:
The Associated Press
"Gay-Rights Case Before Supreme Court" (Dec. 3, 2002)
http://www.newsday.com/news/nationworld/nation/ny-usgay033029506dec03,0,1393560.story?coll=ny-nationalnews-print
This case arose in 1998 when police were summoned to an apartment with
a false report, then entered the unlocked apartment and found two men
having sex. They were jailed overnight and fined $200 under the Texas
Homosexual Conduct Law. Under the Texas law, sodomy is defined as
oral or anal sex.
SUPPORTING THE RIGHT TO PRIVACY WITH SEX
Both circumstances and principle argue for the right to privacy:
* the Georgia case involved entry into a home, which has been defined
as a protected area requiring a search warrant and significant cause
to enter
* the Texas case involved a false report, likely filed maliciously.
* Justice Blackmun's argument for overturning the George law said
that the case doesn't concern sodomy but "the most comprehensive of
rights and the right most valued by civilized men," namely, "the right
to be let alone" -- a strong support for the right to privacy.
* state sodomy laws interfere with private, consensual activity.
* the state was enforcing the sodomy law against homosexuals but NOT
heterosexuals. Discriminatory enforcement makes weak public policy.
* public policy arguments have consistently used religious
justifications for supporting laws sodomy. Previous Supreme Court
decisions have made that an unacceptable reason.
* the Fourth Amendment provides protection to activities in the home
that would negate sodomy laws. In Griswold v. Connecticut the Court
overturned laws against contraceptives on the basis of protecting
searches of homes; it could do the same in overturning sodomy laws.
SUPPORTING SODOMY LAWS
* public policy can and should be dictated by the majority. The
majority of the population holds sodomy to be immoral.
* except for rights enumerated in the Constitution, other behavior may
be regulated by the states. The Constitution doesn't give a
fundamental right to homosexuals to engage in sodomy. No family
relationship cases are related, so
arguments that private sexual conduct is protected are not relevant.
* additionally, states have historically criminalized sodomy, making
arguments
for an "implicit" right irrelevant.
* the health risks with sexually transmitted diseases, particularly
AIDS, is a legitimate public concern and should result in sodomy being
banned.
Best regards,
Omnivorous-GA
|
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