...I'm okay with being REALITY-based.




Thursday, June 26, 2003
      ( 10:54 AM )
 
The Supremes Make Good - but Will the Military?

Kudos goes to the Six Supremes who made the majority decision today in Lawrence v. Texas - making it clear that states do not have the right to invade the privacy of people's bedrooms, nor the right to make homosexuality illegal. CalPundit says it best:

I have to say that this is a case where the result is so clearly worthy
that I don't even care that much exactly what the legal reasoning was.
But speaking of reasoning, it's no surprise that the three dissenters
were Rehnquist, Scalia, and Thomas.

The minority was outraged, outraged!

"The court has largely signed on to the so-called homosexual
agenda," Scalia wrote for the three. He took the unusual step
of reading his dissent from the bench.

"The court has taken sides in the culture war," Scalia said, adding
that he has "nothing against homosexuals."

Not to put too fine a point on it, but if upholding American citizens' Constitutional right to privacy is an "agenda," then more power to 'em.

Calpundit directs us to Balknization, who has some really great commentary on the decision:

The Supreme Court's decision to base Lawrence on privacy
grounds rather than equal protection grounds (equality is what the
petitioners originally argued) actually is a more modest change in the
law than it first appears. By grounding gay rights in privacy rather
than equality, the Court does not have to hold that gays are a suspect
class or that classifications based on sexual orientation are entitled to
heighted scrutiny. And it also holds off, for the time being, a decision
about whether same sex marriage violates the Constitution.


Ironically, at the same time, basing Lawrence on privacy rather than
on equal protection has some advantages for those members of the
queer community who do not wish courts to view all sexual orientation
minorities as a single group. An equality holding would push gays toward
a civil rights paradigm based on an analogy to blacks and women. Instead,
the queer community has been arguing for their right to conduct their
sexual lives as they see fit, free from government sanction, thus allowing
them to experiment with different forms of attachment and different
forms of sexuality. A decision grounded in liberty rather than equality is
more hospitable from this perspective.

Interestingly, the Lawrence decision has overturned an older law upheld by the Supreme Court in the 80's called Bowers v. Hardwick, which ruled that states could regulate the conduct of homosexuals. It was the Bowers law that was used to underpin the military's ban of homosexuals.

Phil Carter at Intel Dump discusses the implications:

I think that one of the first effects of Lawrence will be to trigger a challenge in U.S. District Court to the current policy banning gays
in the military. That challenge will essentially cite Lawrence for the
proposition that homosexual conduct is a fundamental right that
the state cannot burden without some compelling interest -- and
that the restrictions must be narrowly tailored to that compelling
interest. The plaintiffs will argue that this policy (the "Don't ask, don't
tell" policy) burdens the right of gay soldiers to engage in the conduct they want to, and that such a burden on a fundamental right is
unconstitutional. Given the Court's holding today in Lawrence, I think
that a lower court would almost certainly side with the plaintiffs.

Let's hope so. The Court has ended its session with a little bit of redemption. The make up of the Court could be greatly affected in the coming year if one of them resigns while Bush is still in office. To protect against this, the Democrats in Congress need to act like the Opposition Party that they are and block any Bush Supreme Nominee until we've got him squarely out of office in a year.

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