June 26, 2003

THE SUPREME COURT JUST STRUCK DOWN the Texas sodomy law in Lawrence. That’s all I know at the moment.

UPDATE: Here’s a story from the Houston Chronicle. Excerpt:

The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.

The case is a major reexamination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state’s ability to classify as a crime what goes on behind the closed bedroom doors of consenting adults.

Today’s ruling invalidated a Texas law against “deviate sexual intercourse with another individual of the same sex.”

The law “demeans the lives of homosexual persons,” Justice Anthony M. Kennedy wrote for the majority.

These early reports are often unreliable as to the reasoning or reach of the case, but it certainly sounds like the end of Bowers v. Hardwick, which I see as a good thing.

Here’s what I wrote about the case back in December, and here’s a law review article that Dave Kopel and I wrote that’s relevant, too. It will be interesting to see if the Court followed our suggestions.

ANOTHER UPDATE: I’ve given the majority opinion — which is mercifully short — a quick read. No big surprises, except perhaps the weight given to decisions by the European Court of Human Rights, etc. Fundamentally, though, the opinion holds that Bowers was wrong in both its history and its law. State decisions under state constitutions get a good deal of attention, and the upshot is that there seems to be a general right of consenting adults to engage in non-commercial sexual activity without the interference of the state.

My only real complaint is that this is couched solely in terms of the scope of a liberty interest, and not — as many of the state cases the Court cites do — in terms of limits to the legitimate exercise of state power. That’s largely a matter of rhetoric, but it’s an important one, I think.

O’Connor’s concurrence, however, makes clear that a statute based on “moral disapproval” fails even rational basis review, because moral disapproval cannot be a legitimate government interest. “Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy.” That’s exactly right.

Obvious disclaimer: This is based on a very quick reading. My views on further reflection may change.

ANOTHER UPDATE: Jack Balkin has a post up. And, natch, Howard Bashman has quite a roundup.

YET ANOTHER UPDATE: Larry Solum has a lot more on his site, and there’s an ongoing discusson at The Volokh Conspiracy, too.

Clayton Cramer, meanwhile, is unhappy with the decision. I kind of figured. He says that the Court has its history wrong.

MORE: Tony Adragna is unimpressed with Scalia’s dissent.

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