PrettyFakes

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Lawrence v. Texas, June 26th, 2003.

Maybe I’ll write about it later, after I’ve finished reading it—the concurrence by Sandra Day, the two dissents . . . it was enough this morning to be late to work—having spent most of the night drinking ice-cold Budweiser out of think plastic blue buckets and playing a Harley-Davidson pinball machine, listening to Tom Petty and Jimmy Buffett in a place so trashy dives get mad at getting compared to it—and to check my voicemail and get just a simple one-liner: “they overturned that horrible case.”

So I drive through the streets of my city in a thirty-year old car and “Better Days” spools up on my Springsteen’s Greatest Hits cassette and everything is all right in the world, at least for this morning.

THEE UPDATES AND LINE-BY-LINES:

Note: the following lacks citation, as page numbering has not yet been approved by the Court.

Oh, and it’s a wonderful opinion. I just started reading, and it’s perfect. It’s just like I hoped. It actually underscores Roe. A stunning admission of their mistake in Bowers, back in 1986—”we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake . . . [the] penalties of [sodomy laws] have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.”

“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

That’s it, right there: that’s legal poetry, written by Justice Anthony Kennedy—appointed by President Ronald Reagan, in 1988.

“The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.” Any time today you see this decision being about “gay rights” or “sodomy,” grit your teeth: this is about us all.

Oh wow. Okay, this is going to piss off a lot of people: Justice Kennedy made note of a European Court of Human Rights case. Oh, man—the conservatives are going to wretch! He cited to a foreign court as influential—there’s the U.N. for ya!! There’s the international flava!! APPOINTED BY PRESIDENT REAGAN!!

This is an eminently readable case. No jib-jub here.

Okay. So they’re going all the way. See, they didn’ t have to overturn the Bowers case—something that arguably causes the Court to lose face (because they were wrong!), but they did. They went all the way.

Oh hell. A second reference to the European Court of Human Rights! The decision, if you’re wondering, is Dudgeon v. United Kingdom, that said a nation couldn’t have a law making homosexual conduct wrong (they did this in ‘81, and it affected 21 nations then—now 45).

Amazing. One paragraph shout-out to Justice Stevens’ dissent in Bowers and a laurel wreath—”[his] analysis, in our view, should have been controlling in Bowers and should control here. A little of that weird time-hop they do—of course Justice Stevens is saying in 2003 that his own view in 1986 should be adopted. Quantum Leap it!

Here it is: “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.”

I suppose I’m tearing up a bit. Do you know what this means? It means there’s still something right in our world, in our country—that we still have the power to say “we made a mistake, it was wrong—and now we want to fix it.” We can still do things right.

Yeah—I wasn’t expecting this, but it’s good: I’m going to call it the “Santorum Paragraph.” “The present case does not involve minors . . . ” Bite me, bigots! That’s what this says. AND HERE IS THE KICKER!! A tribute to the living Constitution—not the “dead paper,” as Justice Scalia is so found of saying, but a breathing, changing, wondrous shield:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

And now here comes our other Reagan appointee, the mighty Justice O’Connor: right out of the gate she hits it—”I joined Bowers, and do not join the Court in overruling it. Nevertheless . . . ” It’s that caveat that wins it. And no matter what she says—what I’m seeing in her concurrence is chunks of Mr. Lawrence’s brief—the part about Texas possibly banning you from being a doctor, other states’ laws regarding those with misdemeanors—it’s an Equal Protection argument. Oh man. The whole thing—she’s doing just an Equal Protection riff. Jeez! She just cited Yick Wo! That’s from 1886! That’s crazy . . .

YEAH!! She quoted Railway Express! No shout out to Justice Jackson’s majority, but she went right for it—just like Lawrence’s counsel asked at oral argument. She’s trying to carve out an exception though . . . hmm . . . most likely thinking of future marriage or adoption arguments. Have to remember that she always wants to make her own way, and often does. Still, her closing paragraph rings triumphant:

A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court’s judgment that Texas’ sodomy law banning ‘deviate sexual intercourse’ between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

Dum-dee-dum-dum . . . it’s time for the bad guys. Scalia, Rehnquist, and Thomas. Today was SIX-TO-THREE, all you sonsofbitches out there! SIX TO THREE!! A Reagan appointee wrote it! GO TO HELL OLE MISS!

I can’t read their bile right now. I’ll get too worked up. I’ll save it for later. It’s 10:50 Central time, and for once in the past few years, I feel safe: I feel like things are right: I feel like we have justice where before we had none.

I am having a great morning.

This entry was posted on Thursday, June 26th, 2003 at 10:13 am and is filed under Gorjus, In the Nation, Law & Jurisprudence. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.