Constitutional Law types

[MichaelHarris]

I'm studying for my Con Law final right now and I have a couple of quick questions on Equal Protection and Due Process in LAWRENCE ET AL. v. TEXAS 539 U.S. 558. It's the sodomy case. Why was it ruled on under Due Process? O'Conner, in her concurring said it should be Equal Prootection.

In this case and the one we studied before it, ROMER, GOVERNOR OF COLORADO, ET AL. v. EVANS ET AL. 517 U.S. 620, the dissent from the horrible 3 was particularly venomous. Do you think it's important to know that for the test?

The test will be 90% Strict Scrutiny, Intermediate Scrutiny, and Rational Review. I'm still trying to wrap my head around all that.

Thanks,
Michael

[Tiggeroshii]

1. Which kind are you studying?

Right now I'm preparing for a criminal procedure midterm. Unfortunately I can't help you but I do wish you best of luck! =)

[MichaelHarris]

2. Thanks

It's actually an undergraduate class.

[TexasObserver]

3. For what it's worth, here ....

What were the three questions the Supreme Court considered when it took the appeal in Lawrence v. Texas?

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1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" law-which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples-violate the Fourteenth Amendment guarantee of equal protection of the laws?

2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick, supra, should be overruled?

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The majority opinion's author, Justice Kennedy, wrote "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."

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The men who appealed the conviction did so on Due Process grounds, as stated in the first paragraph of the opinion. They made such an appeal because they needed a federal basis for their appeal from the state court conviction. They relied upon the Due Processes clauses of the 5th and 14th amendments, and the Equal Protection clause of the 14th amendment. The Supreme Court took the appeal because it wanted to speak to the issue, and in doing so, overrule prior controlling law. The Supreme Court wanted to make homosexual conduct protected under the constitution, and bringing it under due process accomplished that.

Notice the concluding comments in the majority opinion:

"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

As for Justice O'Connor, she voted with the majority on the outcome, but differed on the rationale. She chose to use the Equal Protection clause, rather than the Due Process clause, as the rationale for the Lawrence decision. She did so because she had voted in the majority on the Bowers decision, and in Lawrence the other five in the majority rejected Bowers. She voted the same result, but did so in a way that would be consistent with her earlier vote on Bowers. In a nutshell, it's important to know how she voted and why, but with the majority having five votes not counting hers, such knowledge is of little impact, except that her vote with the majority (making it a 6-3 decision) has now been lost due to the appointment of Alito, who votes with Scalia on social matters.

As for whether it is important to know the dissent by the evil trio, YES is the answer. You should always know who the dissenters were and what their basis for opposition was. Why? Because they're only two votes away from being the majority, and if they get the extra two votes (and now just one vote away), the social conservatives could find a reason in the future to overrule the Lawrence decision. Stare Decisis is only good as long as the votes are there to uphold it. This ruling in favor of homosexual rights is hanging by a thread - one vote on the Supreme Court. Thankfully, with Obama appointing the next justices, the right is probably secure, but with the four conservative stalwarts on the court, the right will continue to hang by that same 5-4 thread.

SOURCE FOR COMMENTS: the Supreme Court Opinion

[TexasObserver]

4. Strict Scrutiny, Intermediate Scrutiny, and Rational Review.

Review your definitions of these three concepts. In very general terms, they are standards of review by appellate courts. Strict Scrutiny is the highest standard, the most difficult to meet, and Rational Review is the lowest standard, the easiest to meet.

In reality, courts go where they want to go, and find a rationale to get there. That's probably not what your teacher wants to hear, but that's the reality. Color me jaded after 30 plus years of practicing law, but judges are humans who have political and personal biases, and they merely dress those beliefs up in flowery language, supported by case law, to get where they need to go. In my view, it's all about one thing: the votes. It takes five to win a Supreme Court decision, so if you have five votes, you can win, and if you don't, you can't. Justices will find a way to vote the way they wish to vote, and there will be some rational basis they can find in some prior opinion to support it.

[tekisui]

6. That is what I have seen.

It is really quite remarkable studying Supreme Court decisions, and seeing how the Justices thread a needle to rule based on what they clearly have shown to be their pre-conceived beliefs. Sometimes, I am surprised, but mostly not.

[MichaelHarris]

7. thank you very much

that is extremely helpful!

[tekisui]

5. Dues Process opens less doors for future cases than does equal protection

O'Conner gave an extra weapon to future cases by including equal protection in her concurring opinion. Had it been solely on Due Process, later cases dealing with discriminatory practices would be required to meet a test of whether they were afforded due process. Equal protection expands, greatly, the right of an individual to claim discrimination.

[MichaelHarris]

8. thank you

very much for the information!