The Texas Republican Party Platform has called for sodomy to become illegal: We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.
I guess the Texas Republicans haven't read Lawrence v. Texas, the Supreme Court's 2003 decision invalidating a Texas sodomy law. According to the Texas statute struck down in Lawrence, “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows: “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; of “(B) the penetration of the genitals or the anus of another person with an object.”
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 case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
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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