The ruling is in, and in a 6-3 majority the U.S. Supreme Court has ruled that a Texas law prohibiting consensual homosexual sex violated constitutional privacy rights. This decision, based as it is on privacy rather than equal protection, means that Virginia’s own sodomy law–which prohibits both heterosexual and homosexual sodomy–also is unconstitutional. I will soon no longer be a criminal for having sex in the privacy of my own home (ok, so it’s an academic distinction given the state of my sex life).
While the best ruling for invalidating sodomy laws in the nine states like mine that technically prohibit it in all cases, not just between members of the same sex, it’s not necessarily the best ruling that could have come overall, if my legal understanding is correct (Tin Man, a lawyer, gives a great rundown on the potential ramifications of the various rationales for deciding this case). If the Court had invalidated the Texas sodomy law on the basis of equal protection, while potentially allowing states like Virginia to keep their sodomy laws intact since they are (theoretically) applied equally, the ruling might have given greater strength to other areas in which gay and lesbians are treated disparately–like marriage, adoption, inheritance, etc.–though such an outcome was by no means guaranteed, so invalidating the Texas law on the basis of privacy may very well have been the best we could hope for in the current political and social climates.
Oddly, the edited version of the AP article that first appeared this morning in The Washington Post omits a portion of the original, a damning statement by Justice Antonin Scalia. [Update 11:18 am: the Post since has replaced this with the full text, including the comments by Scalia.]
“The court has largely signed on to the so-called homosexual agenda,” Scalia wrote for the three [dissenting: Chief Justice Rehnquist, Justice Thomas and himself]. 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.”
He has “nothing against homosexuals,” but he would deny them the right to have consensual private sex? Are we back on Bizarro World again? Hypocritically, and as Gene also points out, it’s the members of the court considered most “conservative,” who here have taken the very anti-conservative approach of suggesting that the government should be invasively policing our personal, consensual, private behaviors.
So… I feel like I should have some celebratory consensual homosexual sex. Any patriotic individuals out there who want to help me honor the wisdom of our judicial branch?