Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
"in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature."
Interesting obscure privacy case. The Supreme Court was able to avoid deciding the constitutional rights at issue involving such sexual behavior (here speech related) for a couple more years by punting in New York v. Uplinger (1984). Four justices wanted to decide the merits, noting as much in a brief dissenting statement written by Justice White. His authorship of Bowers v. Hardwick might seem to many suspicious here, but have seen various references that Justice White had a consistent concern about settling circuit disputes. And, just what the right to privacy cases meant as to sexual behavior was an open question, as noted by the Supreme Court itself in Carey and splitting circuits at the time.
Justice White here argued: "As I see it, the New York statute was
invalidated on federal constitutional grounds, and the merits of that
decision are properly before us and should be addressed. Dismissing
this case as improvidently granted is not the proper course." The per curiam, however, said the ruling below was opaque, in key part based on an earlier case SCOTUS didn't deem cert-worthy and accepted by the parties here, and arguably decided on independent state grounds. A footnote also cites a further bit of confusion where the state attorney general and local county district attorney that actually argued the case clashed on the correct understanding of the law.
And, really, that seems appropriate. The lower court held the statute only dealt with "to punish conduct anticipatory to" conduct protected in an earlier opinion. The opinion makes sure to say "we have neither discussed nor decided any overbreadth questions by implication or otherwise," but this was a confused issue during the Supreme Court oral arguments. So, ultimately this seemed like a back-ended way to deal with a case the Supreme Court didn't want to hear before. The earlier case anticipated Lawrence v. Texas by more than thirty years and was based on the law being "proscribed by the Constitution of the United States" though push comes to shove (as it did in other cases) the Court of Appeals might have determined the New York Constitution also protected the conduct.*
The state court in the earlier case did a very good job ruling on the question, including finding a way around a summary affirmance that some argued blocked protecting this sort of behavior, but the question still was controversial. States should avoid complications here when necessary by clearly holding, unless it isn't the case, that their own constitutions would provide "independent state grounds" for the ruling. This would avoid various unnecessary federal court disputes. Meanwhile, one judge provided the potential to apply a right to privacy to personal marijuana use.
* The intermediate ruling on the case covered all bases there by citing an earlier case that gave broader "liberty" protections under the state constitution as well as providing a useful summary:
[I]t is seen that the concept of personal freedom includes a broad and
unclassified group of values and activities related generally to
individual repose, sanctuary and autonomy and the individual's right to
develop his personal existence in the manner he or she sees fit.
Personal sexual conduct is a fundamental right, protected by the right
to privacy because of the transcendental importance of sex to the human
condition, the intimacy of the conduct, and its relationship to a
person's right to control his or her own body [law article cited]. The right is broad enough to
include sexual acts between nonmarried persons [cases] and intimate consensual homosexual conduct [Tribe treatise citation].