Sunday, November 13, 2005

Alito, abortion, and gay rights

I wonder how many Americans are like me - somewhat equivocal about some aspects of abortion rights, while strongly supportive of gay rights. What has struck me about the debate about Supreme Court nominee Sam Alito is that the respect for long-standing precedent, called stare decisis, will be of little help in deciding whether to reaffirm Lawrence v. Texas, decided in 2003 on privacy grounds similar to those of Roe v. Wade.

In the Lawrence case, five Supreme Court justices found a right to privacy protected intimate sexual relations in one's home. A sixth justice, O'Connor, found the Texas law illegal on equal protection laws, since the law banned only homosexual sodomy and discriminated against defendants according to the gender of the persons the defendants were with. The Court in Lawrence expressly over-ruled a previous Supreme Court ruling, and said stare decisis was not absolute.

Alito would replace O'Connor and is unlikely to support her equal-protection claim. One more judge replaced and the entire ruling can go away. I think gay rights are even more at stake than abortion rights, but you hardly hear anything about it in the context of the Supreme Court fight.

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