Friday, July 2, 2010

Texas Republicans Oppose Sodomy, U.S. Constitution

          Justice Anthony Kennedy's important opinion in Lawrence explained that adults enjoy a Fourteenth Amendment Due Process right to engage in intimate sexual relations that was violated by the statute and Lawrence's arrest. Many lawyers had argued that the statute should be invalidated on Equal Protection grounds because it prohibited same-sex, but not different-sex, sodomy. Kennedy, however, warned that were we to hold the statute invalid under the Equal Protection Clause 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. Then Justice Kennedy explained that the Constitution protects same-sex and different-sex sexual intimacy from government intrusion:

The Texas Republicans should be more sympathetic to Lawrence, because any anti-sodomy agenda violates one of the Party's core principles -- Limiting the expanse of Government Power--and suggests that the commitment to limited governmental power is not authentic.

          In a concurring opinion in Lawrence, Justice Sandra Day O'Connor invalidated the statute on Equal Protection grounds, arguing that Kennedy's broad Due Process holding was unnecessary. Whether a sodomy law that is neutral both in effect and application, she wrote, 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. I am confident that the people of Texas will be more protective of individual privacy from government intrusion than the Republican Party of Texas. 

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