Privacy, Equality Under the Law, and the Texas Sodomy Case

On behalf of Alabama, Pryor filed an amicus curiae brief in Lawrence v. Texas, joined only by Utah and South Carolina, urging the Supreme Court to uphold the Texas “Homosexual Conduct” law, which criminalized private consensual sex between adults of the same gender. Pryor’s amicus brief equated for purposes of legal analysis sex between two adults of the same gender with “activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.” Pryor’s arguments were rejected by the Court in a landmark 6-3 ruling overturning the Texas law. A 5-4 majority overturned the Court’s infamous Bowers v. Hardwick ruling, which Pryor’s brief extolled.

In a written response to a question from Sen. Dick Durbin about the arguments in his amicus brief, Pryor wrote, “Of course, gays and lesbians are entitled to the same protections as any other Americans under the Constitution....” This statement is outrageously disingenuous, since Pryor had contended in his brief that the Court should reject the petitioners’ arguments that the Texas law, by singling out gay men and lesbians for discriminatory treatment, violated the Equal Protection Clause. In fact, Pryor’s brief needlessly addressed the equal protection question, since Alabama’s sodomy law, unlike the Texas law, applies to everyone. If Pryor really believed that “gays and lesbians are entitled to the same protections as other Americans under the Constitution,” he could have refrained from filing an amicus brief at all (as did most states with sodomy laws), or he could have confined his brief to the due process and privacy questions and taken no position on equal protection. The fact that Pryor stretched to address the equal protection question calls into serious question his post-nomination assertion that he believes gay men and lesbians are entitled to the equal protection of the law.

In a written response to a question by Sen. Schumer, Pryor cited the Tenth Amendment (which refers to powers reserved to the states) as the basis for his claim that the state can prohibit sex between same-sex couples because such conduct may have “spiritual consequences.” Fortunately, the Supreme Court did not embrace this dangerous view of the Tenth Amendment, which would grant states tremendous power to curtail individual rights based on majority views about what actions could have negative “spiritual consequences.”

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