Last edited: January 02, 2005

Supreme Court Agrees to Hear Sodomy Case


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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