Real Crime/Paranormal/Conspiracy Theories Book III

Lawrence v. Texas Part II

O'Connor's concurrence

Justice O'Connor, argued the statutewas unconstitutional under the Equal Protection Clause rather thandue process and would have kept Bowers intact.

Justice Sandra Day O'Connor onlyconcurred in the judgment and wrote a concurring opinion in which sheoffered a different rationale for invalidating the Texas sodomystatute. She disagreed with the overturning of Bowers—she had beenin the Bowers majority—and disputed the court's invocation of dueprocess guarantees of liberty in this context. Rather than includingsexuality within protected liberty, she would strike down the law asviolating the equal protection clause because it criminalizedmale–male but not male–female sodomy. O'Connor maintained that asodomy law that was neutral both in effect and application might beconstitutional, but that there was little to fear because "democraticsociety" would not tolerate it for long. O'Connor noted thata law limiting marriage to heterosexual couples would pass rationalscrutiny as long as it was designed to "preserv[e] thetraditional institution of marriage" and not simply based onthe state's dislike of homosexual persons.

Scalia's dissent

Justice Antonin Scalia wrote a dissent,which Chief Justice William H. Rehnquist and Justice Clarence Thomasjoined. Scalia objected to the Court's decision to revisit Bowers,pointing out many decisions from lower courts that relied on Bowersthat might now need to be reconsidered. He noted that the samerationale used to overturn Bowers could have been used to overturnRoe v. Wade, which some of the Justices in the majority inLawrence had upheld in Planned Parenthood v. Casey (1992).Scalia also criticized the majority opinion for failing to give thesame respect to stare decisis that three of those in the majority hadinsisted on in Casey. O'Connor's concurrence noted that Scalia'sdissent conceded that if cases such as Romer v. Evans "havestare decisis effect, Texas' sodomy law would not pass scrutiny underthe Equal Protection Clause, regardless of the type of rational basisreview" applied.

Scalia wrote that if the court was notprepared to validate laws based on moral choices as it had done inBowers, state laws against bigamy, same-sex marriage, adult incest,prostitution, masturbation, adultery, fornication, bestiality, andobscenity would not prove sustainable.

He wrote that:

Today's opinion is the product of aCourt, which is the product of a law-profession culture, that haslargely signed on to the so-called homosexual agenda, by which I meanthe agenda promoted by some homosexual activists directed ateliminating the moral opprobrium that has traditionally attached tohomosexual conduct. ... [T]he Court has taken sides in the culturewar, departing from its role of assuring, as a neutral observer, thatthe democratic rules of engagement are observed.

He cited the majority opinion's concernthat the criminalization of sodomy could be the basis fordiscrimination against homosexuals as evidence that the majorityignored the views of most Americans:

So imbued is the Court with the lawprofession's anti-anti-homosexual culture, that it is seeminglyunaware that the attitudes of that culture are not obviously"mainstream"; that in most States what the Court calls"discrimination" against those who engage in homosexualacts is perfectly legal.