Strengthening Constitutional Self-Government

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Supreme Court to Hear Sodomy Case

The Supreme Court agreed today to hear a case challenging a Texas statute which prohibits same-sex sodomy. The tea leaves suggest that the law is likely to be struck down. The Supreme Court upheld a Georgia anti-sodomy statute in 1986 in the case of Bowers v. Hardwick, but that statute was not limited to same-sex sodomy. Because the challenged statute is limited to same-sex acts, the case therefore has a stronger equal protection component than the previous challenge. Then there is the 1996 decision in Romer v. Evans, in which the Supreme Court struck down a Colorado state initiative which restricted the ability of municipalities to enact laws granting gays favored status in antidiscrimination laws. While the case is not necessarily a precedent--it specifically did not cite to the Bowers case, and the current case does not involve equal access to the political process as the Romer case ostensibly did--many view it more in positivist tones as a statement of the sense of the voting majority court, rather than as a limited judgment of law. The final consideration which suggests that the law is in peril of being struck down is the simple fact that the Court agreed to take the case. The Supreme Court has a very limited case load of around 80 cases per year. If a majority of the Court still agreed that such a law was constitutional, they would have been unlikely to have granted review.

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