[quote]Originally posted by Cerek the Barbaric:
Quote:
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O’Connor agreed with the outcome of the case but not all of Kennedy’s rationale. She indicated that the law should have been overturned on grounds that it violates the Constitution’s equal protection clause.
The article also specifically mentioned that the ruling did not address the issue of the 14th Amendment violation.
Thursday’s ruling was based on arguments by the plaintiffs’ attorneys that because the men were arrested in a private residence while engaging in consensual sex, the raid amounted to an unconstitutional invasion of privacy.
It did not address a second legal point raised by the plaintiffs, that by mandating disparate treatment for two classes of citizens, the statute violates the 14th Amendment’s equal protection clause.
While I agree that this is a major victory for gay rights, I think it's a bit erroneous to classify it as a victory for human rights.  Of course, the real "kicker" is that the Texas legislature can come right back and attempt to re-instate the law...so long as they rewrite it to apply to heterosexuals as well as homosexuals. That way, they ARE within the "equal protection" parameters of the 14th Amendment, since the law is applied equally and without discrimination.
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1. Justices applied some common sense here to maintain other parts of their agendas. A holding based on the equal protection clause paves a clear a fast path for claims for a right to gay marriage, a striking of the federal Defense of Marriage Act, and many challenges to "dont ask dont tell." A majority of the justices don't want to do this.
2. Since this was decided on the right to privacy (is seems -- I have not read the opinion YET), the Texas legislature can NOT reinstate the law. Had it been decided on the 14th Amendment, then the Texas liegislature COULD reinstate the law -- so long as it was equally applicable to heteros.
3. Bonus question for all: where is the Right to Privacy in the US Constitution? [img]graemlins/1ponder.gif[/img]