Kate (kate_nepveu) wrote,


Texas's law prohibiting same-sex sodomy has been overturned, on the absolute best of the grounds offered to the court.

The AP has the PDF of the majority opinion up already, and at the bottom of page five I started jumping up and down in my chair:

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

Wow. Wow. Wow.

And explicitly refusing to decide on Equal Protection Grounds, because if so, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

(O'Connor concurs in the result only on Equal Protection Grounds, but there's still a majority for the privacy argument: so the answer to that question is "no.")

The final upshot:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. . . . The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

Out of respect for my current happiness, I shall pointedly ignore Scalia and Thomas's dissenting opinions. Wow.

[ Edited to add: Professor Balkin has a good, more thorough breakdown of the decision, with some comments about the broader implications. ]

Tags: law

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