Arguments from both sides and an analysis
Summary
The defense argues that because the law prohibiting same-sex couples from having sex with each other was written in a time where a man and a woman could also not have sex with each other, it shouldn’t be applied today. No one has enforced the idea and Paul M Smith, a lawyer for Lawrence, says that this is the reason why the law should be written out of the books. Justice Scalia said himself, “The police have not gone around knocking on bedroom doors to see if anyone... I mean... this is not the kind of a crime that the police go around looking for.” Which supports Smith even though through the entire oral argument it seems like he is arguing against him. Justice Scalia brought up the point himself, that sodomy is not a crime that the police go door-to-door looking for. He also says that the right same-sex couples to have sex is not included in equal protection rights “Justice Scalia: Well, you're getting to your equal protection argument now. Let's... let's separate the two. The first is, your... your... your fundamental right argument, which has nothing to do with equal protection? Mr. Smith: --Well, Your Honor-- Justice Scalia: So the same-sex/other-sex aspect doesn't come into it--” Smith also reminds Justice Scalia of the law which he seems to be accidentally forgetting in it’s entirety. “The enforcement of the sodomy laws of this country going back to the founding involves coercion, it involves children. It involves public activity. It doesn't involve the kind of conduct that's at issue here.” Analysis Justice Scalia unknowingly or purposefully helped Smith in his argument. Basically the whole hour long argument was coming down to whether a law, written in the 19th century that applied to any couple, should have a say now in only same-sex couples. Seeing as it is no longer enforced for a man and a woman in a relationship, why should it stick to same-sex couples? Then comes into play equal rights and opportunities which Justice Scalia keep reminding Smith to stay away from. Because if they go into that, that would open up the possibility that same-sex couples and different sex couples are equal under the law but that’s not what Justice Scalia wants argued. What he wants argued is whether or not gay sex should remain illegal. Not whether sex between to females is. The defense says same-sex couples while the prosecutor can be found placing a gender on the same-sex couple. I can almost guarantee that if those police officers had walked in on two woman having sex, this case would not have made such an impact. |
Summary
The prosecutors say that same-sex intercourse is and should remain illegal because of a law written in the 19th century. The homosexuality conduct law prohibits sodomy and just about any other sexual act between same-sex couples. They tried to keep Lawrence in jail by saying that what he had done with Garner was morally wrong. Analysis It doesn't seem like they had much to go on except that what Lawrence and Garner had done, in the privacy of their own home, was morally wrong. They had that and the Homosexual Conduct law. What is prohibited to be performed by same-sex couples is legal for different sex couples to perform. |