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Lawrence v. Texas

The Supreme Court heard oral arguments in Lawrence v. Texas last week. This case is a challenge to Texas' outlawing of sodomy by homosexuals.

NPR's Nina Totenberg did a nice piece (audio only) on the arguments. She reported a wonderfully illustrative exchange:

District Attorney [Charles] Rosenthal... rose to defend the Texas law. "There is no right," he asserted, "to extramarital sex of any kind."

Justice [Stephen] Breyer: "The argument for the other side is that people in their bedrooms have a right to sexual intimacy without intrusion from the state. What's your response to that?"

Answer: "In Texas, sodomy is a Class C misdemeanor."

Breyer: "I'd like a straight answer to my question."

Answer: "Our position is that the line should be drawn at the marital bedroom."

Justice [Ruth Bader] Ginsburg: "Homosexuals can adopt children or be foster parents in Texas. If they can be proper guardians of children, then how can they be criminals? That's not consistent."

Justice [John Paul] Stevens: "Does Texas prohibit sexual intercourse between unmarried heterosexuals?"

Answer: "No."

Question: "What about adultery?"

Answer: "It's not illegal, but we don't condone it."

Justice Breyer: "I don't see any justification for this law except, 'I do not like thee, Dr. Fell / The reason why I cannot tell.'"

Answer: "Texas has the right to make moral judgements."

Breyer: "Can the state make it illegal to tell serious lies at the dinner table?"

Answer: "That would have no rational justification."

Breyer: "Oh, really? I would think telling serious lies would be very immoral. You know," continued Breyer, "at the time of the First World War, some states outlawed the teaching of German in the public schools. There was no reason justifying that action and you haven't given us a reason here, except to say that it's immoral."

Justice [Antonin] Scalia: "Just as bigamy and adultery are immoral."

Breyer: "Or teaching German?"

Scalia groaned. "Well, uh..."

It was gratifying to see an editorial against the position of the state of Texas written by Republican Alan Simpson appear in the Wall Street Journal the same day:

I am a lifelong Republican because I have always believed in the rights of the individual -- the rights to life, liberty, and the pursuit of happiness. I believe those rights to be, as the Founders declared, God-given. Right now, they are under threat in Texas.

Today, the U.S. Supreme Court, in the case of Lawrence v. Texas, will hear argument on the constitutionality of a Texas law that criminalizes sex between two people of the same sex. Other states have similar laws, which are contrary to American values protecting personal liberty and opposing discrimination. The Supreme Court should declare them unconstitutional...

Certainly, many Americans have deeply held moral and religious convictions regarding sexual behavior. For some, these convictions include an objection to all homosexual acts. But... [we] should have confidence in our private morality -- not demean it with tortured legal interpretations.

The Constitution protects our right to hold different opinions... The Texas statute, as it currently exists, intrudes on the personal freedom of Americans who are harming no one. It forces the law into the most intimate precincts of the home, where we ought to be able to make our own decisions about how to conduct our lives, even if some of our fellow citizens disapprove. This is especially true of that most intimate and personal decision about whom to love, and how...

It is a bedrock American principle that no law should single out a group of citizens for unfair and spiteful discrimination. Our history demonstrates that every time we have trampled on this principle, we have come to regret it. The homosexual sodomy law makes a criminal of every gay person. That is something no American should sanction.

Most of America has made its peace with a principle of live-and-let-live. Now it is time to bring the law up to date.

I believe that the right to privacy is strongly implied within the US Constitution. But the fact that we are still trying cases like this demonstrates to me more than ever the need for that right to privacy to be made explicit. It's time for an amendment.

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