Amateur Legal Analyis
Jun. 27th, 2003 03:38 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
stevenehrbarThe Supreme Court decision in Lawrence v. Texas is quite interesting in its consequences.
Let me quote:
In short, the problem with laws against sodomy, under the Court's ruling, is not that there is a right to engage in intercourse, but that laws against certain forms of intercourse impremittably interfere with the liberty of personal relationships. This has some interesting logical consequences, assuming the Court will apply this reasoning in the future.
Since the ruling ignores the equal protection claims and finds no protections of specific sexual acts, it still allows a state to still differentially prosecute hexterosexual sodomy, homosexual sodomy, and hexterosexual genital intercourse, provided the sexual act takes place outside of a personal relationship. Such cases would seemingly include sexual acts performed in the course of masturbation, bestiality, anonymous sex, prostitution, or the professional production of pornography. So, for example, so-called "glory holes" may well still set a person up to be prosecuted on violation of the Texas homosexual sodomy law, even if private enough to avoid public lewdness charges.
On the other hand, any sexual activity within a personal relationship is presumptively legal. Laws against adultery, fornication, adult incest, and consensual BDSM (at least within certain bounds) are likely to be ruled unconstitutional, at least in the context of personal relationships.
The intersection of Utah's common-law marriage and polygamy laws, as seen in the Tom Green conviction arguably constitute an illegal outlawing of sexual activity within a personal relationship under these laws. He was not formally married to more than one woman at the time he was charged, and he would not have been common-law married to the other four if he had refrained from having sex with them; this arguably makes the sex the outlawed act.
Let me quote:
The Court began its substantive discussion in Bowers as follows: The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.
That statement, we now conclude, discloses the Courts own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. . . . The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is
within the liberty of persons to choose without being punished as criminals.
In short, the problem with laws against sodomy, under the Court's ruling, is not that there is a right to engage in intercourse, but that laws against certain forms of intercourse impremittably interfere with the liberty of personal relationships. This has some interesting logical consequences, assuming the Court will apply this reasoning in the future.
Since the ruling ignores the equal protection claims and finds no protections of specific sexual acts, it still allows a state to still differentially prosecute hexterosexual sodomy, homosexual sodomy, and hexterosexual genital intercourse, provided the sexual act takes place outside of a personal relationship. Such cases would seemingly include sexual acts performed in the course of masturbation, bestiality, anonymous sex, prostitution, or the professional production of pornography. So, for example, so-called "glory holes" may well still set a person up to be prosecuted on violation of the Texas homosexual sodomy law, even if private enough to avoid public lewdness charges.
On the other hand, any sexual activity within a personal relationship is presumptively legal. Laws against adultery, fornication, adult incest, and consensual BDSM (at least within certain bounds) are likely to be ruled unconstitutional, at least in the context of personal relationships.
The intersection of Utah's common-law marriage and polygamy laws, as seen in the Tom Green conviction arguably constitute an illegal outlawing of sexual activity within a personal relationship under these laws. He was not formally married to more than one woman at the time he was charged, and he would not have been common-law married to the other four if he had refrained from having sex with them; this arguably makes the sex the outlawed act.
