« New Arkie Blogger | Main | Changes »
April 06, 2003
Missing the Point
The US Supreme Court heard oral arguments last week in the case of Lawrence v. Texas, aka the Texas anti-sodomy law case. Mr. Smith, attorney for petitioners, correctly argued that "the problem with the Texas law banning homosexual conduct is that it represents an effort by the majority to impose their morality on the minority." Justice Scalia responded by questioning why this statute was different from prohibitions on bigamy. With all due respect to all involved, I think his answer totally missed the point.
Mr. Smith responded by saying:
"Now, bigamy," he said, "involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples' behaviors... ."
Now that's all well and good, but it doesn't address the basic problem with the Texas "anti-sodomy" statute....it only apply to homosexual participants, not heterosexual. The statute in question is as follows:
21.06. Homosexual Conduct
(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
(b) An offense under this section is a Class C misdemeanor.
"Deviate sexual intercourse", as I'm sure inquiring minds want to know, is defined in an accompanying statute as:
21.01. Definitions
In this chapter:
(1) "Deviate sexual intercourse" means:
(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus of another person with an object.
The point of Mr. Smith's argument should be that the statute discriminates against behavior based solely on the gender of the participants, which is indeed an "effort by the majority to impose their morality on the minority." Whether or not that is a legitimate discrimination is the issue. In fact, under the wording of the statute which does not ban all sexual contact, homosexual couples could make out, they just can't go all the way. (Which is, IMHO, just absurd.)
Comparing this prohibition to the prohibition on bigamy is a red herring. Mr. Smith correctly identifies the state's legitimate interest in banning bigamy, and in fact, the ban on bigamy is not gender related. While one might argue that this is because only heterosexual couples can be married, that is irrelevant. Other types of undesirable sexual behavior is banned by the state without regard to gender. For example, Texas statute 21.07 prohibits all types of sexual intercourse in public by any persons, not just persons of the same sex, and other statutes ban sex with children or animals. What distinguishes these prohibitions is that they are gender neutral.
Perhaps Mr. Smith did go on to make this distinction, but it doesn't appear so from what I've read. If he didn't, I think he's screwed.
Posted by Rita at April 6, 2003 07:16 AM
Comments
Um... Question ... you stated in your post that the problem with the law applies only to homosexuals. How would this law apply to "trans-gendered" individuals? Okay, it's a stupid question. I didn't say it would be a GOOD one.
Posted by: Tony at April 6, 2003 08:13 AM
Excellent question, Tony, which illustrates the difficulty in defining "same-sex". The statute only prohibits "same-sex" activity....so what about people who've had a sex change? As far as I know (and I'm not licensed in Texas BTW), none of their statutes address that issue.
And presumably hermaphrodites couldn't have sex with anyone, including themselves.
Posted by: Rita at April 6, 2003 08:44 AM
As well, according to that statute, it is totally legal to "love" animals .. (?)
Posted by: Tony at April 6, 2003 08:19 PM
No, there's a separate statute prohibiting that.
Posted by: Rita at April 7, 2003 06:37 AM