Two more today, one in Tennessee apparently letting an anti-gay-marriage state constitutional amendment go to the ballot and one in the Eighth Circuit reversing a district judge's ruling that Nebraska's gay-marriage ban is unconstitutional. That makes five losses in one week.
The Eighth Circuit decision, which can be read here, is especially important. It's significant because it reverses a district court decision that opponents of gay marriage, among them my friends Maggie Gallagher and BYU law professor Lynn Wardle, the Senate Republican Policy Committee, and many others, had relied on heavily as part of the "judicial activism" justification for passing a federal constitutional amendment. Very few constitutional law experts I know believed the district court opinion would be upheld, but that did not stop amendment supporters from using it to goad Congress and the public.
The Eighth Circuit opinion is also significant because it appears to contain very broad language rejecting same-sex marriage claims. This is especially curious because the litigants had not asked the federal court to force Nebraska to recognize gay marriage; they had only asked the courts to hold that Nebraska's state constitutional amendment, which seems to ban much more than gay marriage, was too broad. Not content to reject just that claim, the Eighth Circuit seems to have taken it upon itself to reject gay-marriage claims generally. It holds that only rational basis review applies to Nebraska's definition of marriage and that the state has a rational basis supporting the definition, including interests in children very much like those sustained by the New York Court of Appeals last week.
The Eighth Circuit opinion ends with a quote from Judge Richard Posner in a law review article nine years ago, arguing that for prudential reasons federal courts should be especially careful about recognizing "new rights" broadly opposed by the public.
My hunch is that, if asked, the Supreme Court will deny cert in the Eighth Circuit case.
Gay-marriage litigants will be deeply disappointed by this string of losses, especially the New York and Eighth Circuit rulings. But perhaps the more excitable elements of the anti-gay-marriage movement will calm down just a bit.
Come on. The district court's decision existed. It wasn't dreamed up as part of a parade of horribles by the Right. And inasmuch as it existed, it was entirely fair for "amendment supporters" to point it out. By the way, why the negatively loaded term "goad"? They were making an argument, and the district court decision supported the argument.
District court decisions have consequences. Sometimes they are not stayed and have ramifications even when they are likely to be reversed eventually on appeal. Given the Supreme Court's shrinking caseload, an adverse district court opinion, on any constitutional issue, is theorectically just one step away from binding precedent for an entire circuit if the selected appellate panel is as wrong as the district court judge.
I also wonder if there are gay marriage advocates out there who believe that the case for gay marriage has a sound legal basis but simultaneously criticize the constitutional amendment initiatives in part on the theory that they aren't needed because judicially-ordered gay marriage is unlikely. Those positions seem inconsistent to me.
I say this as sonmeone who thought the Federal Marriage Amendment proposal was silly and wrongheaded, but is more or less agnostic on state constitutional movements (I don't believe there's anything wrong with the use of this process, and such amendments will either pass or not depending on the will of the people).
Assuming rational-basis review is the correct standard, whether or not the Eighth properly applied rational basis given Romer is another question.
It's hedged with a number of (sometimes rather arbitrary) restrictions. Persons under a certain age can't engage in it. Nor can first cousins (at least in AZ) and many other relatives (unless, in AZ, they can show one partner is sterile). It must be engaged in before a specified public official or clergyman and witnesses. And you can only make the contract with one person at a time! Making it with two is a felony. If it's a fundamental right, it is rather peculiar one.
Not to mention that a fundamental right to be married probably includes one to be unmarried, yet achieving that state requires an elaborate court proceeding (and, in Virginia, a one-year cooling off period).
I daresay that an attempt to put similar restrictions on, oh, freedom of speech or abortion would be regarded as something approaching insanity. Get a government license, only certain people can get it, spend thousands to get court approval, cooling off periods...
Whether it was an outlier or not, the district court case remains out there as an example of what a presumably smart judge can decide under the then-existing legal structure, so I don't think it would be unreasonable for someone on the other side to hold up the case as the type of thing they need a constitutional amendment to prevent.
I'm also aware of the right to appeal to the court of appeals. But district court decisions aren't always stayed, so they can have consequences. And a litigant losing in the district court (or winning, for that matter) is just one bad panel draw from being faced with an adverse decision and an uphill battle to get cert granted. I assume you would view the odds of getting cert granted under such a scenario pretty good, as would I, but the numbers still show that you're fighting for about 85 spots on the docket, give or take.
(I'm not trying to be flip.)
And if you are going to make a federal case out of this, for God's sake, don't do it in the Eighth Circuit. There are plenty of states out there now in more gay-friendly circuits that straightforwardly deny the marriage right to same-sex couples. The litigants had to know their chances of prevailing in the Eighth Circuit were slim to nil.
And Dale, I don't think this is because the Eighth Circuit is less activist than other circuits (particularly the Ninth), I think it's because it's more conservative than most circuits. It's high time we dispensed with the "judicial activism" code word and spoke plainly about these issues.
Take, for example, that lawsuit brought in C.D. Cal. by Christian high schools against the University of California. The plaintiffs mount a constitutional challenge to the University's refusal to credit courses taught out of certain religious textbooks as legitimate college prep courses. The tables are turned in that case: those who usually complain about "judicial activism" are petitioning a court to take an expansive view of their entitlements under the Constitution.
A Ninth Circuit panel that rules in their favor would properly be regarded as "activist," under any reasonable and consistent reading of the term, but it wouldn't surprise me if a court that proves deferential to the University's prerogatives will get the label, just because "watchdogs" accustomed to wielding the term simply won't like the outcome.
I really think it's high time we got past all this "activism" business and accepted the reality that judges have to decide cases, and people sometimes aren't going to like the decisions. At best, the term is loosely defined, inconsistently applied, and ideology-laden in a way that detracts from real analysis of the decisions that courts issue. At worst, it's a well-entrenched, ingenious "structural" argument that conservatives have crafted to justify the outrage of their constituencies in a way that is less morally troublesome to articulate than the true underlying cause of the outrage: that, in this case, many of them are afraid of gay people.
I don't mean to be incendiary with that last comment -- I don't doubt that there are people who genuinely worry about the ability of judges to expand indefinitely on their constitutional interpretations, once they've managed to extricate themselves from the strictures of the plain text. Heck, I'm concerned about that, too. But when I hear James Dobson complaining about judicial activism, I'm not convinced that he's very genuine on this point.
The federal marriage amendment epitomizes this: many conservatives, including my father, touted the proposed amendment as simply an effort to take the issue away from the courts. As presently configured, it articulates a nationwide definition of marriage that includes same-sex couples and in fact significantly curtails the possibility of legal civil unions. I had to show him the actual text of the amendment to correct him on this score, and now he opposes it.
And, for that matter, an "activism" that tends to expand the rights of individuals isn't quite so bad, is it? After all, there are "activists" (in the sense of departure from the text) out there who are determined to depart from the Constitution in order to expand the powers of the executive, and to empower the government at the expense of the citizenry. Let's talk about them.
But let's use a different word, maybe . . .
Tha Massachusetts decision galvanized the opposition and presented a huge opportunity for opponents to rally their forces in rushing one state amendment after another through the ballot box. Each time any court rules in favor of gay marriage, the opponents only need to say, "Look! Massachusetts is banging down the gates! The gays are coming!"
This is not a battle that is won or lost on the opinions of various courts; it's a battle that is being won or lost on the opinions of the American voters. And today the majority of those opinions are against gay marriage.
That situation is slowly changing as younger cohorts embrace much more gay friendly attitudes, but I'd have to say the lawsuits have put gay marriage back at least one generation.
I doubt it. Unless of course the "more excitable elements" of the pro-gay-marriage movement will calm down just a bit. I doubt that too.
Redefine the words and anything can mean anything.
Sorry didn't Orwell write about that sort of thing in 1984?
The majority of opinions have ALWAYS be against gay marriage. They have been FOR gay Civil-Unions.
If the gay's wanted all the rights, privilages, etc of marriage but were willing to call it "Civil-Unions" or anything BUT "marriage". We would not be having this fight.
But Gays want the word "Marriage" as a symbol. They don't care about anything else. The WORD is everything to them.
Those who support civil unions but not marriage want the word as a symbol just as much as those who do not settle for civil unions. So, what does the word symbolize?
The one part of the decision I have issues with is the discussion of Romer. From a cursory reading of the opinion, it seemed like it might be read to hold that Romer absolutely has no application to state DOMAs under any circumstances. To the extent a DOMA purports to strip gay couples of rights that are available to other "unmarried" people (by, for example, voiding private contracts), I do think there is an equal protection issue. On the other hand, no Nebraska court has ever interpreted the state DOMA to do this (making this case distinguishable from Romer). I would have like to see that one issue clarified, however.
Or because others want to stick it to people who disagree with them.
The gays want to change the defination but keep it's symbol value. Sometimes it's a plus sometimes it is neutral. I am certain you can think up jut as many instances that this has happened as I can.
(1) I hadn't been made aware that the "Right" had defined the term "judicial activism" in a way that everyone understands. I've instead found myself put to the task of figuring out what it means by inductive reasoning. As best I can gather, in political circles it means "an instance in which a judge issues an opinion that the speaker does not like."
I thought a more principled and manageable definition — and probably the one Dale was using — would be "an instance in which a judge reads the law to expand an existing legal doctrine beyond its previously recognized limits." But maybe I'm just resorting to semantic sleight-of-hand.
(2) You seem to suggest that it is a regular practice of the "Left" to subvert the conventional meanings of words in order to press their Leftist agenda. Do you have other examples?
(3) I appreciate the 1984 allusion. I do think, however, that the book has greater cultural relevance in the context of the Administration's super-secret, "self-policed" wiretapping and data-mining programs than to my little ol' quibble about the word "activist." But we can dig up Orwell and ask him, if it will settle things . . .
You'd better ask Lovecraft how, first.
I agree with what you're saying -- I do think same-sex marriage is an inevitability, and I do feel that the litigation effort has set the program back. Maybe that should have been foreseen, given today's climate inside and outside the judiciary. But on the other hand, incremental litigation has been successful in the past.
It just seems a bummer to me that the courts are either too chastened to deliver the goods now — or too old-school to want to do it. "Justice delayed is justice denied," after all. Those who suffer discrimination now may take heart knowing the next generation doesn't get the same raw deal, but I'm guessing that doesn't take the sting away.
Courts have to be careful when they take the lead on an issue involving minority rights. If they get too far ahead of political majorities, they lose their legitimacy. But if they don't do anything at all, they lose their relevance. Same-sex marriage opponents have done a great job mobilizing their constituency, holding their Justice Sunday rallies, chewing out Supreme Court Justices in budget hearings before Congress. You have to admire their sagacity. Courts are cowed — more now than ever before.
In the past courts have been standard-bearers for equality. Brown v. Board of Ed. may have been controversial at the time it issued, but more than simply reversing Plessy as a matter of law, Brown taught a moral lesson to Americans that — and this is sad — many of them weren't getting. While that's not a primary function of the courts, it's a useful service.
When we look back at this era fifty years from now, we'll admire Chief Justice Marshall's opinion in Goodridge, and we'll wonder what exactly the folks on the New York Court of Appeals were thinking, resorting to empty tautologies in order to find a way to avoid doing the Right, but Controversial Thing. Hopefully by then the courts won't have forfeited too much of their moral authority.
Too late. Maybe courts should concern themselves a little more with the LAW and a little less with morality. Leave the morality stuff to the elected branches.
FWIW, I don't think I've ever heard someone say "The gays" as opposed to "Gays" and have them say anything positive about gay people. In fact, I think its a pretty good indicator that you aren't really interested in rational discussion on the issue.
They argue that a constitutional amendment prohibiting same sex marriage "fences out" homosexuals from the political process because they can't effectively lobby the legislature to pass gay marriage. That's what constitutions do! By the same reasoning, the establishment clause, by prohibiting Congress from creating a national church, has "fenced out" Christians from the political process, since it makes it impossible to lobby Congress to pass a national establishment clause. (Ditto for the states since the 14th Amendment has incorporated the establishment clause.)
They argue that this constitutional amendment is a "bill of attainder." This should be an embarrassment to the law professors who taught these idiots. A bill of attainder is a legislative measure that determines an individual's guilt, and provides for punishment. This amendment punishes no one. The 8th Circuit didn't even find this plausible enough to devote much energy to demolishing it.
The homosexuals argued that their freedom of association was impaired by this amendment. Gimme a break! I associate with people all the time without getting married.
The homosexuals argued that their right to petition for redress of grievances was impaired by this amendment. Yeah, and if that's true, then the freedom of the press clause impairs my right of petition to Congress to ban violent porn. As the 8th Circuit pointed out: "The First Amendment guarantees the right to advocate; it does not guarantee political success."
Homosexuals should be embarrassed to make arguments this ridiculous.
Seems sensible, though hardly what one would call a "conservative" viewpoint, since it leaves the door open for a different result some day down the road when public opinion sees things differently.
"The homosexuals" generally don't speak with one mind. Plenty (dare I say a majority) are in favor of gay marriage but opposed to these types of farfetched litigation strategies. What I imagine you don't like is that "the homosexuals" won't slip quietly back into the closet, no matter what some court says. Otherwise it would be impossible to understand why you seem so much angrier than any of the folks who supposedly "lost" today.
actually, the political branches aren't so bad overall, but there are times -- and this is one of them -- where they cave to baser impulses.
But you made my point, HG -- a case like Dred Scott enforced the law as written, and it's remembered as one of the most regrettable moments in the history of the Supreme Court. Whereas the Court's greatest triumphs are those in which it showed some courage, looked squarely into the face of an offensive law and the galvanized majority backing it, and did the right thing.
Do you really think it's "too late" for the Court to recover its moral authority, after Dred Scott? That view certainly understates the significance of cases like Brown. Maybe I'm just a wide-eyed judge-lover, but Brown still means something to me.
This is not to say that courts should blithely overrule laws based on their own normative considerations of What the Law Should Be. But there are moments in which they can make principled legal arguments to do something right. I'm comfortable with a Court having that authority, and I don't think judges should be afraid of exercising it.
The alternative is that the courts retreat into the role of a rubber-stamp for government action -- or worse, they find themselves becoming apologists, as they did in Dred Scott and Korematsu, for the injustices of the political branches.
The homosexuals argued . . . The homosexuals argued . . . Homosexuals should be embarrassed . . .
It's worth noting that this isn't a case of "the homosexuals" against the world. Plenty of straight people see this as an ongoing civil rights issue, too.
CS2:
FWIW, I don't think I've ever heard someone say "The gays" as opposed to "Gays" and have them say anything positive about gay people.
I've noticed the same thing. Any thoughts as to the underlying reason?
I can point to a couple of gay right-of-center bloggers who agree that these litigation strategies are a bad idea. I would be more impressed with your claim if gays were filing amicus briefs arguing this way.
It used to be I didn't particularly want them back in the closet. You don't want the government telling you what consenting adults can do in private? I'm down with that. The Constitution doesn't require it, but I was very supportive when California repealed its sodomy laws in 1975. I couldn't even figure out why anyone disagreed.
What has me angry is the same thing that started to anger a lot of Northerners in the 1830s and 1840s who didn't care real strongly about slavery itself--but did care about the manner in which fundamental liberties, such as freedom of the press, freedom of speech, and the right of petition to Congress, were being increasingly squelched by a small but powerful minority: slave owners.
The right of conscience is in serious danger, when a print shop owner can't refuse an order for same-sex wedding announcements without being fined, when a video duplication service is investigated for turning down a job that involves duplicating videos promoting homosexuality, when companies fire people for refusing to lie and say that they approve of homosexuality. (AT&T lost the lawsuit on that one, fortunately.) Other countries are farther down the road towards homosexual fascism, with pastors threatened with jail for speaking against homosexuality (Ake Green), and teachers threatened with loss of their teaching certificate for a letter written to a newspaper (a teacher in British Columbia).
That's the difference. I used to buy the argument that homosexuality was just a minor difference, not worth worrying about. Homosexuals have persuaded me otherwise.
I see- so to counteract the forces of "homosexual facism" you now want to drive millions of people who don't even agree with the excesses that bother you back into lives of misery and deceit. I completely agree that gay rights activists (much like social conservatives) sometimes get carried away and forget to accord their opponents the respect they wish to be accorded. Its fine to call them out on it. What's not fine is to equate people who are mostly just trying to figure out how to live their lives (perhaps making personal choices with which you disagree) with nazis and slaveholders. Freedom of conscience is a two way street.
As for amicus briefs, maybe those will start coming when more social conservatives moderate their own positions (for instance by actually standing up for the right of couples to have all those private contracts you keep talking about enforced). Unlike the abortion wars, I tend to think that there is actually a great deal of room for compromise in this particular cultural debate. Its not going to come as long as both sides keep trying to blugeon each other to death.
Try it. That's part of why I was Volokh Conspiracy blogger for a few days. The gay activists pointed out that I had some heated words on the subject ten years earlier (and I had said nothing at all publicly for eight years), and Volokh kicked me out.
The activists claim to speak for you when they promote their totalitarian ideas. Tell them to stop.
And what prevents those contracts from being enforced? A lack of civil unions isn't the issue. Lots of straight couples buy houses together, even adopt children together.
Look, if you want private contracts, what's holding this up? There are a couple of matters such as joint filing of income tax and Social Security survivor benefits that can't be done by private contract, but when you have two parties with roughly similar incomes, these really aren't as much advantage as some people try to claim.
The Dred analogy is inapt. As a matter of original understanding, Taney, a Southerner who was sympathetic to slave ownership, was legislating from the bench.
The text of the Constitution did not support a fundamental right of slave ownership. Taney was nonetheless convinced such a right existed and transformed due process (states must provide due process when taking property) into a requirement for substantive outcome (slave ownership is a fundament right which cannot be abridged).
Taney’s decision is one of the first instances in American SC history of “substantive due process”; it would not be the last.
Judges in New York and other places who have ruled on same sex marriage have admirably avoided substantive due process judgments and have effectively returned the matter to legislature and people. They are to be commended.
But you're right, Clayton, I'm making an assumption. I'm weighing the claims of a disparaged, stigmatized group of people to equal rights against the nuisance that their more activist wing poses to other people when they zealously press their case. And I'm coming out in favor of equal rights to the stigmatized group. That's my value choice. To each his own, though.
I'm sorry if you got death threats. That's out of bounds. I just respectfully disagree with you, and you've failed to persuade me of anything. Whether or not activists have brought frivolous lawsuits to enforce a kind of equality orthodoxy is really, to my mind, unrelated to whether a group is entitled to equal treatment in the first instance. I can understand that extreme forms of activism can depress public sympathy for a cause (Chechnya leaps to mind); I don't accept that the extremism undermines the legitimacy of the cause, or its fundamental rightness.
But fine: you're correct, people can disagree about what's right. If you insist that stigmatizing homosexuals is a matter of freedom of conscience, I can't disagree with you. It's your conscience, after all. Good luck.
You are doing a good job of making my point about homosexual fascism: the dread fear that someone, somewhere, might be thinking wrong!
Stigmatizing gays maybe great in your own mind, but I think it is wrong to seek to enforce such stigmatization by using the law.
Married couples have the certain advantages in that supported and backed by the law. Gay couples want the same thing. They want to NOT live in fear that any legal relationship they create between them will be disregarded in the court of law. If one person contracts that the other would inherit a joint business, that should be back by law and not be shredded by family members or anyone else.
Quite frankly, I wonder if gays couples could be guaranteed that the contracts they enter into would be honored, then they might not be such a voiciferous demand for same-sex marriage.
I'm curious. Be a devil's advocate against yourself. How would you approach helping gays the right to marry the person of their choosing?
If you can't do that, perhaps you can list all the rights gays should have?
The courts might be proving themselves more pragmatic than previously thought. That is, the courts are sticking their fingers in the air, and all things considered, deciding not to find a right to gay marriage.
Two other quick points.
1. One poster mentioned about those who support traditional marriage will be remembered v. the authors of Goodridge. My question is how will Judge Sosman, the only homosexual on the court, be regarded given her dissent?
2. To Mr. Cramer, I believe you should refrain from referring to the gay activists as "the gays," but for different reasons. a. Yes, the Left has adopted identity politics and collective victimhood from Gramsci. That said, the Right should not respond in-kind. In fact, we should oppose this rubbish and promote what made this country great - rugged individualism b. Using the term "the gays" makes it harder for individual homosexuals who may not be on board with the activists to dissent. After all, you've just lumped them in.
2. They were adopted as a form of governmental social engineering. The exact objective is not (pardon the pun) black and white, but there is evidence that the goal was to reduce competition for the supply of white women, because black men (both slave and free) were successfully persuading white women to marry them. Why this would have been the case remains an interesting historical problem, since black freemen were definitely in an inferior social status to white women, and black slave men were even below that. We may never know; the information from the period is quite limited.
Can you give me some citations to contracts between same-sex couples that have been invalidated by the courts?
What makes you think I consider that a worthwhile effort? The vast majority of the concerns that I hear about why same-sex marriage is necessary are resolvable by contract. (There are a few, as I have mentioned, that can't be.) If a lawyer wanted to make some money right now, he could put together the "Everything But The License" kit, one for each state, with all the paperwork required to create revocable durable power of attorney, wills, etc. If there are really a lot of gay people looking to marry, this would give them almost everything that they say they want--and without the enormous political struggle. I don't particularly see pretend marriage as a good thing, but hey, you aren't asking for my approval when you do a revocable durable power of attorney, and it isn't specific to homosexuals.
The right of consenting adults to do as they wish in private. I don't believe that Lawrence was correctly decided, but in practice, it has been a pretty rare situation when homosexuals doing what they do in private have been the subject of criminal prosecutions. (Note: sex in public restrooms or on a public beach aren't "in private.") Take a look at the events that led to both the Lawrence and Bowers v. Hardwick cases. These were highly unusual situations--and in the Bowers case, the police, after initially charging, had the good sense to drop the charges.
I'm sure that there must be social conservatives who want the government aggressively hunting for homosexuals. I must confess that from the conversations that I have had with a number of them over the years (a couple of them actually mildly prominent names), it is clear to me that they would prefer live and let live. You stop trying to force same-sex marriage and propagandizing in the schools, and they will be happy to leave well enough alone on the governmental front. None of them are going to stop trying to persuade people that homosexuality is a bad thing; I don't expect homosexuals to stop their efforts through the media to persuade people that homosexuality is a good thing.
Isn't it odd that the Left argues that they are speaking on behalf of all homosexuals (and all right-thinking straights as well) on this matter, and they never get any flak about it?
I know that there are gays who don't buy into this identity politics. In 1988, for example, about 1/3 of gay California voters voted for George Bush. I just want to see more gay people return to the traditional (1970s) argument that they want the government to leave them alone. I can live with that, and I think all but a few cranks agree. But recognizing same-sex marriage is not "leave them alone."
Ah, I forgot - the "liberals are evil" definition. Surely another one for the OED Update series.
It doesn't seem like you believe at all in a right of consenting adults to do as they wish in private. Would you accept a ban on private gun ownership as long as enforcement was "pretty rare"? I doubt it. (Although you could hardly challenge it in court; by your own logic, that would make you a democracy-hater.) Violations of civil liberties don't evaporate just because they are inconsistently enforced. Your claims to respect the rights of consenting adults seem very, very thin to me.
One can believe that consenting adults should be able to do as they wish in private without agreeing with Lawrence. See Justice Thomas' dissent. I believe this is the position Mr. Cramer takes. It's the question as to whether this "right" is enshrined in the Constitution.
Thomas' dissent in Lawrence was a thinly veiled swipe at Griswold (quoting Stewart's dissent, "uncommonly silly"). Thomas has little use for precedent, even for completely settled law. Roberts said Griswold was settled law in his confirmation hearings. Can we please go back and get an honest answer to the same question from Thomas and redo his confirmation vote?
That was my point. If we acceptthat the courts have a right to impose their morality on us, then we will get whatever morality has the majority. Sometimes that's Dred Scott. Sometimes that's Lawrence v. Texas. Phutatorius takes for granted that the courts will always possess a morality he finds agreeable.
Yes, people have never thought that gays molest children to find "new recruits" or that gays are mentally ill. "Odd" was the worst of it. Sure. CC is the only conservative I have seen who argues that, because northern California is more tolerant than other places in the U.S., everywhere else must be the same.
So the right to homosexual sodomy is amendment #3? Did I miss something here? Further, our natural "rights" as human beings are not necessarily coextensive with our "rights" under the Constitution. Our natural rights are a matter of philosophy, subject to vigorous debate, while our legal rights are contained in the Constitution and deeply rooted traditions. Ordinarily, when people felt individuals should have a right to do something (e.g. sex between consenting adults), they sought to convince their fellow citizens of the wisdom of recognizing and protecting that right. In a word: Not everyone thinks the Constitution means exactly what they want it to mean. One can believe in natural rights which have no legal force.
Did I miss that debate? Or are you arguing that no person has a right to oral or anal sex, whatever their gender or sexual orientation?
A good portion of the states with "sodomy laws" applied to heterosexuals as well as homosexuals. O'Connor would have upheld such laws. There is not a constitutional right to sodomy, homosexual or heterosexual.