Lawrence v. Texas

[Ebowed]

For example, there would be nothing to stop a future court from legalizing the rape of small children under the so-called "right to privacy".

Rape harms the victim and thus rape cannot be justified under any sort of right to privacy.

[Emsworth]

Why wouldn't the 14th amendment apply the 9th to the states?

Anything that is not an enumerated power of the federal government, is a ninth amendment right of the people. For example, the people have a ninth amendment right against regulation of intrastate commerce, because the federal government is only authorized to regulate interstate, foreign, and Indian commerce. Thus, it would not make sense to incorporate the ninth amendment with respect to the states, just as it would not make sense to incorporate the tenth amendment with respect to the states.

[MaC]

I agree with O'Connor's concurrence.

agree here.  Bowers v. Hardwick was based on a dumb law, yet it still had merit.  This law was ruled that only homosexuals are punished for sodomy (while heterosexuals can perform it without penalty).  Therefore the Equal Protection Clause was violated.

[Emsworth]

agree here.  Bowers v. Hardwick was based on a dumb law, yet it still had merit.  This law was ruled that only homosexuals are punished for sodomy (while heterosexuals can perform it without penalty).  Therefore the Equal Protection Clause was violated.

The Equal Protection Clause does not protect individuals from discrimination on the basis of sexual orientation. First of all, the text, history, and context of the Fourteenth Amendment suggest that no such protection exists.

Secondly, even the Supreme Court has failed to hold that the amendment subjects sexual orientation-based discrimination to "strict scrutiny." The much lower "rational basis" standard must be used; the test is quite easily passed by the law in question. (Of course, the concepts of strict scrutiny and rational basis are but phantasms erected by the Supreme Court, but that is another matter--the point is that O'Connor's concurrence is supported neither by the text nor by precedent.)

[MaC]

What good was the Equal Protection Clause then?  If it only protects black people, why is that not mentioned?

[DWPerry]

For example, there would be nothing to stop a future court from legalizing the rape of small children under the so-called "right to privacy".

Rape harms the victim and thus rape cannot be justified under any sort of right to privacy.

My not wearing a seatbelt harms no one - can I use "right to privacy" to get out of a seatbelt ticket??

[Emsworth]

If it only protects black people, why is that not mentioned?

It can be reasonably argued that the clause prohibits discrimination on the basis of several different categories (race, ethnicity, nationality, citizenship, and the like). Extending the clause's boundaries to sexual orientation, however, would be much harder to justify.

For example, there would be nothing to stop a future court from legalizing the rape of small children under the so-called "right to privacy".

Rape harms the victim and thus rape cannot be justified under any sort of right to privacy.

My not wearing a seatbelt harms no one - can I use "right to privacy" to get out of a seatbelt ticket??

Mightn't one become a projectile if one is not wearing a seatbelt during a collision?

[DWPerry]

For example, there would be nothing to stop a future court from legalizing the rape of small children under the so-called "right to privacy".

Rape harms the victim and thus rape cannot be justified under any sort of right to privacy.

My not wearing a seatbelt harms no one - can I use "right to privacy" to get out of a seatbelt ticket??

Mightn't one become a projectile if one is not wearing a seatbelt during a collision?
[/quote]
Yes, and one can become kindling if a car catches fire and is unable to unbuckle the seatbelt, too.

[MaC]

If it only protects black people, why is that not mentioned?

It can be reasonably argued that the clause prohibits discrimination on the basis of several different categories (race, ethnicity, nationality, citizenship, and the like). Extending the clause's boundaries to sexual orientation, however, would be much harder to justify.

may I ask on what basis?  I mean, it was post-civil war era where the reconstuctionists didn't exactly put much thought into writing the amendments and legislation they passed.  However, if there was writing about the amendment, do you have a link to it?

[Emsworth]

may I ask on what basis?  I mean, it was post-civil war era where the reconstuctionists didn't exactly put much thought into writing the amendments and legislation they passed.  However, if there was writing about the amendment, do you have a link to it?

My argument is not based on any specific writings, but on more general considerations.

In general, any part of a law should be taken literally, in accordance with its plain meaning, unless such an interpretation is patently unreasonable. Taken literally, the equal protection clause would mean that nearly all state laws are forbidden. Just about every law discriminates between people, dividing them into categories and treating one category distinctly from another. (A law against theft, for instance, "discriminates" against thieves; it does not treat them equally with other individuals.) Thus, the clause cannot be taken literally; a more restricted interpretation must be sought.

But then, which forms of discrimination shall we deem forbidden, and which allowed? It would be quite absurd, in my opinion, to say that the framers of the Fourteenth Amendment intended that the Supreme Court simply judge for itself whether a particular form of discrimination was justifiable or not--this would transform the Court into a board responsible for reviewing the subjective merits of state legislation. Thus, we are forced to conclude that the words "equal protection" encode a prohibition against certain specific forms of discrimination. There is absolutely nothing in the historical context to even suggest that discrimination based on sexual orientation was among them.

[Sam Spade]

I seem to recall that O'Connor's concurrence said that the Texas sodomy law violated Equal Protection Clause based on discrimination between the sexes, not on discrimination based on sexual orientation.  That was how she distinguished Bowers (hetero and homo sodomy banned) with the Texas sodomy law (only homo sodomy banned).  I also seem to recall that this theory was based on Stevens' dissent in Bowers.

No USSC justice I know of has ever held discrimination based on sexual orientation to be higher than rational review (w/bite, perhaps).

[MaC]

may I ask on what basis?  I mean, it was post-civil war era where the reconstuctionists didn't exactly put much thought into writing the amendments and legislation they passed.  However, if there was writing about the amendment, do you have a link to it?

My argument is not based on any specific writings, but on more general considerations.

In general, any part of a law should be taken literally, in accordance with its plain meaning, unless such an interpretation is patently unreasonable. Taken literally, the equal protection clause would mean that nearly all state laws are forbidden. Just about every law discriminates between people, dividing them into categories and treating one category distinctly from another. (A law against theft, for instance, "discriminates" against thieves; it does not treat them equally with other individuals.) Thus, the clause cannot be taken literally; a more restricted interpretation must be sought.

But then, which forms of discrimination shall we deem forbidden, and which allowed? It would be quite absurd, in my opinion, to say that the framers of the Fourteenth Amendment intended that the Supreme Court simply judge for itself whether a particular form of discrimination was justifiable or not--this would transform the Court into a board responsible for reviewing the subjective merits of state legislation. Thus, we are forced to conclude that the words "equal protection" encode a prohibition against certain specific forms of discrimination. There is absolutely nothing in the historical context to even suggest that discrimination based on sexual orientation was among them.

Makes sense.

What cases determine those precedents though?

[Kaine for Senate '18]

It was an excellent decision and I am glad the judges had the courage to make it.