HRC Blog

Texas Republicans’ Platform and Why the Lawrence Case is Here to Stay

As we reported earlier today, during the second week of June the Texas Republican Party released its 2010 legislative platform. One notable plank states that the party will exert influence to overturn current privacy law in the United States. Not only is the party’s objectives beyond its sphere of influence, the Texas Republican Party has limited jurisdiction and scope of control on the outcome it seeks.  In their platform, the Texas republicans proposed that they would strengthen families by opposing the legalization of sodomy.  To accomplish this, the party stated that it will “demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.”  It will, however, take more than strong language from Texas republicans in their 2010 State Republican Party Platform to overturn the current legal precedent of the United States. Privacy law concerning consensual, adult intimate relationships has been settled since the Supreme Court’s 2003 decision in Lawrence v. TexasIn that case, the Court struck down a Texas law that made it a crime for two persons of the same-sex to engage in intimate sexual activities in the privacy of their home. The Court held that the Texas statute impinged on the plaintiff’s exercise of liberty interests which are protected by the Due Process Clause of the Fourteenth Amendment.  As a consequence of the Court’s decision, the 1986 binding precedent, Bowers v. Hardwick, was overruled.  In Bowers, the Court did not find that sexual privacy existed between couples who engaged in sodomy whether the couple was heterosexual or homosexual.  Justice Kennedy stated that Bowers was incorrect when it was decided and that it was not correct when Lawrence was before the Court.   As a result, the Court overturned Bowers.   The rationale supporting this decision came from Justice Steven’s dissent in Bowers which stated that the governing majority’s view of a particular practice as being immoral is not a sufficient reason for upholding a law and those decisions by unmarried persons, concerning the intimacies of their physical relationship, are a form of “liberty” protected by the Due Process Clause.  Thus, as binding precedent, Lawrence affords two persons of the same-sex the opportunity to engage in intimate sexual activity in the privacy of their home without governmental intrusion. In order to change a binding precedent, the Court or Congress and not a state legislature must make the determination on whether it should be changed.  In short, a binding precedent is a rule of law established by the Supreme Court that must be followed by the federal and state governments.  Furthermore, a binding precedent relies on the legal principle of stare decisis, Latin for to stand by things decided, which ensures consistency in the application of the law throughout the entire U.S.  However, when questions of constitutionality are before the Court, Congress may not be able to alter the Court’s decision through the passage of federal law.  Lawrence, for example, is such a case.  The Constitution distributes power between the three branches of government; executive, legislative and judicial.  The legislative branch can act by passing legislation.  However, Congress is restricted by the checks and balances of the executive and judicial branches of government. The Constitution also contains checks and balances that affect the judicial branch.  Specifically, the Constitution grants the Supreme Court the necessary power to invalidate federal and state laws.  As a result of the balancing, the Supreme Court has been given power as the final judge in all cases involving federal laws and the Constitution.  Therefore, because Lawrence answered a question on constitutional privacy interests, the binding precedent cannot be affected by any demand on Congress to overturn the Court’s decision.  Lawrence is and remains settled Constitutional law.  The U.S. Congress cannot pass legislation that limits or prohibits intimate sexual and private activities, such as sodomy, that occur between same-sex couples. Lastly, Congress does not have the power to withhold jurisdiction from the federal courts on issues of law.  As explained above, the Constitution distributes power between the branches of governmentThe legislative branch can, however, form inferior courts as it sees fit.  This includes establishing lower courts that focus on specific subject matter.  However, the legislature does not have the power to designate a court’s docket, or said another way, the legislature cannot dictate to the courts, and specifically the Supreme Court what cases must and will be heard.  It is the judicial power, not legislative power, that extends “to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states.”  As a result, the U.S. Congress does not have the power to limit or withhold jurisdiction from federal courts.  Therefore, the strong Texas plea to impliedly overturn Lawrence cannot be undertaken by the U.S. Congress. Contributed by Jeffrey Sallot, Summer 2010 McCleary Law Fellow

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