Supreme Court decision on the Texas sodomy law

The full opinion can be viewed here:

I wanted to do a summary of some of the things about this decision that I thought were interesting or important.

I think the most important thing to note about the decision, from my point of view, is the general principle of freedom it enshrines. The court has said in the past that there are certain fundamental freedoms, spelled out in the constitution, that require a compelling state interest, before they can be violated. There is also the view, that the Due Process Clause guarantees some general freedoms, (Substantive Due Process), and that the state needs at least a rational reason to violate those. (Rational Basis Test)

There are broad statements of the substantive reach of
liberty under the Due Process Clause in earlier cases,
including Pierce v. Society of Sisters, 268 U.S.510 (1925),
and Meyer v. Nebraska, 262 U.S.390 (1923); but the most
pertinent beginning point is our decision in Griswold v.
Connecticut, 381 U.S.479 (1965).

What they are saying, in effect, is that due process, means that the government can not make a completely arbitrary law to restrict freedom. It must have a reason. When we think of due process, we think of the right to a trial. But we would also agree that that means a fair trial. What the history of the court has established is that “Due process of law” means that the entire process of taking away someone’s liberty must be fair, rational, and based on the law. Even the justices on the right, like Scalia, would agree that a law needs a rational basis, but then disagree about what could constitute a rational basis.

Kennedy writes of this clause:

Had those who drew and ratified the Due Process
Clauses of the Fifth Amendment or the Fourteenth
Amendment known the components of liberty in its manifold possibilities,
they might have been more specific.
They did not presume to have this insight. They knew
times can blind us to certain truths and later generations
can see that laws once thought necessary and proper in
fact serve only to oppress. As the Constitution endures,
persons in every generation can invoke its principles in
their own search for greater freedom.

So what constitutes a rational basis?

Kennedy tells us that preventing injury to persons or institutions that the court protects would be such a reason.

This, as a general rule, should counsel against attempts
by the State, or a court, to define the meaning of the relationship
or to set its boundaries absent injury to a person
or abuse of an institution the law protects.

Kennedy also sees the court as the guarantor of liberty.

The issue is whether the
majority may use the power of the State to enforce these
views on the whole society through operation of the criminal law.
“Our obligation is to define the liberty of all, not to
mandate our own moral code.”

In his dissenting opinion in Bowers JUSTICE
STEVENS came to these conclusions:
“Our prior cases make two propositions abundantly
clear. First, the fact that the governing majority in a
State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law
prohibiting the practice; neither history nor tradition
could save a law prohibiting miscegenation from constitutional attack.

Besides its immediate limited impact, this precedent, if it is followed by future courts, has broad implications. Simply put, no law based only on traditional morality or tradition, or simple majority opinion, can withstand constitutional inspection. A law must be about protecting people or institutions. I see this is a huge victory for libertarian ideals, going forward.

Of course, this is just Kennedy’s view. The 4 on the left disagreed with his libertarianism when it came to affirmative action.

Scalia says in his opinion:

If, as the Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate state interest,
none of the above-mentioned laws can survive rational-
basis review.

He is referring to this list:
fornication, bigamy, adultery, adult incest, bestiality, and obscenity

Actually, fornication, adult non-procreative incest, and some obscenity laws probably would fail constitutional muster, although obscenity laws that protect innocent victims would pass muster. And although adult non-procreative incest might be beyond the right of the state to make illegal, this is not an argument that the state would have to grant marriages to such couples.

But bigamy, and adultery laws defend the institution of marriage.
Prostitution could still be regulated, as it is a commercial transaction.

Scalia would have it so that a simple majority opinion constituted a rational basis for a law. So, in Scalia’s mind, with the exception of a few narrowly defined rights to liberty in the constitution, a simple majority opinion is enough to deprive someone of liberties. No good reason, other that majority opinion, is required.


the ancient proposition that a governing majority ’s belief that
certain sexual behavior is “immoral and unacceptable ”
constitutes a rational basis for regulation.

(citing Bowers
for the proposition that “[l ]egislatures are permitted to
legislate with regard to morality ...rather than confined
to preventing demonstrable harms ”

I find this bit particularly disturbing. Any law, in my opinion, that restricts liberty should be about preventing some sort of harm. Any other form of law is tyranny. If passed by a king then the king is a tyrant. If passed by a majority, it is tyranny of the majority, which Tocqueville warned us of.

Scalia, while writing a lot, only writes one paragraph directly attacking the basis for the majority decision.

I turn now to the ground on which the Court squarely
rests its holding: the contention that there is no rational
basis for the law here under attack. This proposition is so
out of accord with our jurisprudence —indeed, with the
jurisprudence of any society we know —that it requires
little discussion.
The Texas statute undeniably seeks to further the belief
of its citizens that certain forms of sexual behavior are
“immoral and unacceptable,” Bowers ,supra ,at 196 —the
same interest furthered by criminal laws against fornication,
bigamy, adultery, adult incest, bestiality, and obscenity.
Bowers held that this was a legitimate state
interest. The Court today reaches the opposite conclusion.
The Texas statute, it says, “furthers no legitimate state
interest which can justify its intrusion into the personal
and private life of the individual,” ante, at 18.
The Court embraces instead JUSTICE STEVENS ’
declaration in his Bowers dissent, that “the fact that the
governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice,” ante, at 17 .
This effectively decrees the end of all morals legislation.
If, as the Court asserts, the promotion of majoritarian
sexual morality is not even a legitimate state interest,
none of the above-mentioned laws can survive rational-
basis review.

Which, again, is not completely true. A majority moral opinion, by itself, is not enough reason for a law. The law must also be about preventing some sort of harm to people or institutions. Marriage is a legal contract, and laws enforcing it would be valid.

Moving on to the separate concurring opinion by O’Connor:

O’Connor is known more for moderate decisions and less for absolutely tight logic. Here she chooses to overturn the law based on equal protection, as spelled out in the Romer precedent. Her view would have disallowed laws banning only same sex conduct, but possibly allowed general sodomy laws, although she leaves open the possibility that even those would fail equal protection. 

She writes:

Whether a sodomy law that is neutral both in effect and
application, see Yick Wo v.Hopkins,118 U.S.356 (1886),
would violate the substantive component of the Due Process Clause is an issue that need not be decided today.

I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. In the words of Justice Jackson:
“The framers of the Constitution knew, and we should
not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law
which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door
to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will
apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency,Inc.v.
New York,336 U.S.106,112 –113 (1949)(concurring

O’Connor also says her view would not apply to marriage rights.

That this law as applied to private, consensual conduct
is unconstitutional under the Equal Protection Clause
does not mean that other laws distinguishing between
heterosexuals and homosexuals would similarly fail under
rational basis review. Texas cannot assert any legitimate
state interest here, such as national security or preserving
the traditional institution of marriage. Unlike the moral
disapproval of same-sex relations —the asserted state
interest in this case —other reasons exist to promote the
institution of marriage beyond mere moral disapproval of
an excluded group.

She uses the words “traditional institution”. This seems different that the view expressed by Kennedy and Stevens that tradition could not be a rational basis.

Scalia wirtes:

But “preserving the traditional institution of marriage ” is just
a kinder way of describing the State ’s moral disapproval
of same-sex couples.

In Criticizing O’Connor’s logic Scalia points out the elephant in the room. Commenting on O’Connor’s use of “equal protection”, Scalia writes:

To be sure,§21.06 does distinguish between the sexes insofar as concerns the partner with
whom the sexual acts are performed: men can violate the
law only with other men, and women only with other
women. But this cannot itself be a denial of equal protec
tion, since it is precisely the same distinction regarding
partner that is drawn in state laws prohibiting marriage
with someone of the same sex while permitting marriage
with someone of the opposite sex.

JUSTICE O ’CONNOR argues that the discrimination in
this law which must be justified is not its discrimination
with regard to the sex of the partner but its discrimination
with regard to the sexual proclivity of the principal actor.

In other words, both the majority of five, and O’Connor, choose not to use the most logical, and straightforward argument. “Equal protection” as applied exactly parallel to decisions that banned laws against miscegenation.

If Robert can marry Sally, and Roberta can not marry Sally, there is discrimination, based only on gender, and an equal protection violation. If they had used that logic, it would have led directly to same-sex marriage. So, rather than an activist decision, this was actually a somewhat restrained one. I think the justices would like to see progress towards same-sex unions on other fronts, before they declare same-sex marriage in a court opinion.

Scalia also writes:

It is clear from this that the
Court has taken sides in the culture war,

If the culture war is about protecting individual liberties from the tyrant of the majority, which I believe it is, then the court has indeed taken sides, the side of liberty.

Scalia also writes a paragraph, which I believe future historians will use to point out how bigotry once extended to the highest levels of government in America:

Many Americans
do not want persons who openly engage in homosexual
conduct as partners in their business, as scoutmasters for
their children, as teachers in their children ’s schools, or as
boarders in their home.

Change that to inter-racial sex:

Many Americans
do not want persons who openly engage inter-racial sex as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.

Scalia writes that same sex marriage is coming soon. And, he is probably right, although not directly from this decision.

Scalia writes:

Today ’s
opinion dismantles the structure of constitutional law that
has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of
homosexual conduct is “no legitimate state interest ” for
purposes of proscribing that conduct, ante ,at 18;and if, as
the Court coos (casting aside all pretense of neutrality),
“[w ]hen sexuality finds overt expression in intimate con-
duct with another person, the conduct can be but one
element in a personal bond that is more enduring,” ante ,
at 6;what justification could there possibly be for denying
the benefits of marriage to homosexual couples exercising
“[t ]he liberty protected by the Constitution,” ibid .?
not the encouragement of procreation, since the sterile and
the elderly are allowed to marry. This case “does not
involve ” the issue of homosexual marriage only if one
entertains the belief that principle and logic have nothing
to do with the decisions of this Court. Many will hope
that, as the Court comfortingly assures us, this is so.

Finally, Thomas writes this very short opinion:

JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA ’s dissenting opinion. I write
separately to note that the law before the Court today “is
...uncommonly silly.” Griswold v. Connecticut ,381 U.S.
479,527 (1965)(Stewart,J.,dissenting).If I were a member of the Texas Legislature, I would vote to repeal it.
Punishing someone for expressing his sexual preference
through noncommercial consensual conduct with another
adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of
this Court I am not empowered to help petitioners and
others similarly situated. My duty, rather, is to “decide
cases ‘agreeably to the Constitution and laws of the United
States.’”Id .,at 530.And,just like Justice Stewart, I “can
find [neither in the Bill of Rights nor any other part of the
Constitution a ]general right of privacy,”ibid .,or as the
Court terms it today, the “liberty of the person both in its
spatial and more transcendent dimensions,”ante ,at 1.

Polls show that, the younger the voter, the stronger the support is for same sex marriage, so it will only be a matter of time, in any case. I think the only issue is “how much time?”

One general sentiment often expressed by the pundits is that this is "judicial activism". I disagree. I think it is the fundamental duty of the court, insulated from the political process, to protect the rights of the individual, guaranteed in the constitution. And, I believe this decision did exactly that.
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