Monday, June 30, 2003

Hey, Petr from Daily Czech, first of all thanks for the plug, and hope you can make it to Tulip in the near future. Since Petr doesn't have a comments function on his blog and sort of responds to my comment on the recent anti-sodomy Supreme Court ruling with some questions of his own, I'll post my response here.

Petr asks:

[W]as it the U.S. Supreme Court or the Supreme Court of Texas? Does it mean that all similar laws in the entire country were appealed, or even declared unconstitutional?
Yep, it was the SCOTUS itself (Supreme Court of the Unites States) and yep, that means all anti-sodomy statues across the land are instantly struck down. It's easy to be dismissive of this -- indeed, these laws are rarely enforced, and the decision was rather expected -- but it's important to note the momentousness of this particular decision, and the way it was worded, if only on purely legal grounds. For instance, the Court doesn't generally like to overturn its own decisions; it's a legal doctrine called stare decisis (and no, I don't know enough Latin or Czech etymology if that's stare like the Czech word for "old") that basically says the Court should proceed gradually with changes in interpretation of the law (case law, I think it's called), respecting the precedents set by previous Court decisions and altering them only slightly, if at all. They did no such thing in Lawrence v. Texas (last week's decision), completely trashing the 1986 decision in Bowers v. Georgia, a similar case of cops busting in on two gays guys getting it on. SCOTUS upheld the Georgia law at the time. Last week, they could have struck down the Texas law and still left the basic legal principles set forth in Bowers alone, which is sort of what Justice Sandra Day O'Conner tried to do in her written opinion, but the majority said:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
Ka-boom! Sexual chaos unleashed across the land, instantaneously. My word, what shall we do now that it's legal to commit sodomy? I must say I'm thoroughly confused now that there are no legal guidelines telling me where to hide the sausage.

But seriously, the 1986 Bowers case was one of those cases that was a mainstay of Legal Studies 101 when I was in school, and it's pretty fascinating to see it dealt with so harshly today. This is not, to be fair, a simply question of whether the law makes sense or not. Justice Clarence "Long Dong Silver" Thomas, who voted to uphold the law, calls the law itself "uncommonly silly":

If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners [that is, the two guys caught with their pants down] and others similarly situated.
In other words, it might a stupid law, but it should be up to the voters (via the Texas state legislature), not the Court, to strike it down. (Funny how Thomas didn't apply that same logic in Bush v. Gore.)

I don't agree with Thomas, but there simply aren't enough hours in the day to properly explain why. The entire decision and the dissenting views are posted here, and if you have a semester to kill, they're worth studying. If you only have an afternoon, you might start with this interesting exchange going on over at Slate, starting here.

What's perhaps worth noting briefly, however, is that in the majority decision, the Court manages, first, to explain (correctly) that contrary to Bowers and popular belief, prohibitions against homosexuality are by no means "ancient" -- in fact they're relatively recent, as is the very category of "homosexual" itself, which was basically invented in the 19th century. (That's not to say people didn't commit homosexual acts before that; they did, but they weren't labeled and categorized as "homosexuals," just as people who eat broccoli aren't generally grouped together and categorized as "broccoli people.") Second, the Court then goes on to implicitly establish homosexuals as a category of persons worthy of constitutional protection (as opposed to, say, nudists or drug addicts), thus enshrining the category of "homosexual" (permanently?) in U.S. case law. I don't disagree with the Court's decision, but I think there's a good deal of unintended irony in it.

Finally, Petr, I do have some reservations about taking your assertion that "in Louisiana a woman can't drive a car unless her husband walks in front of it, waving a flag" at face value. According to this web site, it's Memphis, Tennessee (same difference, I know) and moreover I'm always cautious about stuff like this, trying to nose out urban myth. I couldn't find any other reference to this particular law on the web, although while searching for it on Snopes.com (the ultimate and indispensible debunker of urban myths) I did come across this rather horrifying link to the affidavit of the boy molested by Michael Jackson, which finally emerged 10 years after it was orginally given.