Supreme Court Agrees to Hear Sodomy Case
Analysis
Art Leonard, December 3,
2002
NY Law School
Actually, the cert petition presented three questions to
the Court:
1. Does the Texas sodomy law violate equal protection?
2. Does the Texas sodomy law violate due process right of privacy?
3. Should Bowers v. Hardwick be overruled?
The Court granted the petition for cert. without
narrowing down the questions, so definitely all three questions are before the
Court.
For those into the late Justice Brennan’s game of
“counting to 5” in order to get a majority, it is clear that the case
needs to be most heavily argued to Justices Kennedy and O’Connor to try to
shake loose that 5th vote (and perhaps a 6th). There is an assumption that
Justices Souter, Ginsburg, Breyer and Stevens will vote to find the statute
unconstitutional, although it is dangerous to assume anything in Supreme Court
speculation. Recall that Stevens wrote a separate dissent in Bowers v.
Hardwick, in which he focused on the equal protection defects in the Georgia
statute.
My ideal outcome would be a 6-3 vote in conference, with
Stevens, as senior justice, assigning himself the opinion and then writing
something that either expressly or implicitly overrules Hardwick and finds
that all sodomy laws violate both due process and equal protection as applied
to consensual, non-commercial, non-violent private adult sexual activity. (If
you read his Hardwick dissent, you’ll see that he has a basis for applying
an Equal Protection argument to all sodomy laws, not just same-sex sodomy laws
like that of Texas.)
The worst case scenario is a devastating loss.
But there are interim scenarios as well. What if the 4
moderates vote to find it unconstitutional on both theories, but O’Connor
and/or Kennedy are willing to concur in striking down the statute only on the
equal protection ground, in a way that does not require overruling Hardwick.
(Curious to note that Kennedy’s opinion for the Court in Romer v. Evans
barely doesn’t mention Hardwick at all, to Scalia’s consternation in
dissent.) Overruling would be particularly difficult for O’Connor, since she
was on the Court in 1986 and voted with the majority in Hardwick. Also
interesting that Kennedy was appointed to replace Powell, whose swing vote in
Hardwick was later regretted publicly by Powell after he had retired from the
Court in a speech at NYU Law School that received wide press coverage.
Speculating is fun (and sometimes horrifying) but it
seems clear that there is at least a good shot at getting the same-sex only
sodomy laws tossed out on Equal Protection grounds, and a possibility of
getting all the remaining sodomy laws thrown out on due process (and creative
equal protection) grounds. But this all depends on the moderate 4 holding firm
the way we expect them to vote, and there are some unpredictables in there as
well. We got them all in Romer, but that strikes me as an easier case,
especially when Kennedy figured out a way to write it without overruling or
questioning Hardwick.
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