The Seventh Circuit has interpreted Lawrence v. Texas -- voiding the criminalization of consensual sodomy -- not to apply to state law prohibitions of incest. The Seventh Circuit is the nation's most conservative appellate court. Would the Supremes agree?
(via NRO)
More:
MaxedOutMama reasons-out and posts the analysis I was too tired to write.
3 comments:
Carl - The Seventh Circuit decided this case on the basis that the liberty involved in Lawrence wasn't fundamental and didn't apply to all forms of private sexual conduct. I think I probably would have tried to do the same thing and left it to the Supreme Court to split its own hairs. However I think the SC will have great difficulty splitting them because of the language used in Lawrence.
I committed on my own blog. This is quite a complicated state of affairs.
I think the Supreme Court will easily deny cert. The Lawrence case was an effort at not creating precedence. There was no analysis of the "right" involved. There was no citation to precedence to support the decision. Kennedy just said, this is a right, and this law is no good.
At least O'Conner fashioned a legal argument, one I would probably even agree with.
I think Lawrence is limited to itself. No sodomy laws. Otherwise, it means nothing.
KJ, you wrote:
The Lawrence case was an effort at not creating precedence.
I think you are generally right, but either this is a case of judges legislating morality or it is a case involving liberty which involves rights. Since the judges would certainly not admit to legislating morality, we can be certain that others will use the case to advance claims to rights. From the decision:
Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.
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