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 六月底的另一大热点：Lawrence v. State of Texas 鸡奸案 |
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作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org
刚刚从学校做完oral argument归来，觉得自己好苦：为什么要让我argue 这样的案子 ~>_<~~~~
六月底万众瞩目的最高院判决，除了上回提到的affirmative action regarding the Michigan Law School Admission Policy 之外，就是 Lawrence v. State of Texas 这一备受同性恋者关注的案件了。
案情简介：其实很简单，德州有法明文规定，同性Sodomy （该词定义上存在争议，包含肛交anal sex，口交oral sex 及 Bestility兽交，一些州包括德州不包含后二者）非法。男同志John Lawrence 在家中与男友Tyron Garner 正在engaging in anal sex, 被登门而入的警察撞个正着(警察接到邻居的误报，说有人在Lawrence's apartment抓狂），于是乎歪打正着，原本想查证的犯罪没发现，却有意外的收获。二人被带回班房蹲了一夜，罚款200元。随后，两人提起诉讼，挑战 Section 21.06 法律的合宪性(constitutionality). 一审二审皆败，后诉至最高院，Supreme Court去年底颁发了Certiorari令，同意审查此案，三月份刚听取oral argument，和其他案件一道等待六月底最终判决的出台。
劳伦斯同志一方的辩词主要有： （1）该法违反equal protection (异性恋肛交不犯法，同性却犯）；（2）恶意歧视同性恋者这一不受欢迎的群体；（3）性别歧视 -- 该法的适用以行为人的性别为标准；（4）违反隐私权，自愿行为不受政府约束；（5）17年前的Bowers v. Hardwick一案判决应当推翻（In 1986, a narrow majority of the court upheld Georgia's sodomy law in a ruling that became a touchstone for the growing gay rights movement）。
德州一边的辩护意见主要有：（1）没有“Classification”, 本法对"行为"不对人，异性恋偶尔也会有同性恋行为（双性恋），肛交也会依法受罚，故法律"适用"平等；（2）没有歧视的“恶意”—— 保护公众道德是立法的根本目的；（3）该法平等适用男女，女同志肛交也一样违法, 因而没有性别歧视，；（4）过往立法、判例中从未有过保护同性恋性交的隐私权。同性恋行为不属于宪法“根本权利”（fundamental rights),更非“深深扎根于本国历史与传统”。（5）最高院在Bower一案中明确否决"任何“自愿、合意”的成人间的私人性行为完全不受法律约束”（这就是为何同性恋者痛恨Bower Case判决的原因，当年的判决不光不利同性恋，更绝的是日后成为Chief Justice 的大法官Burger还明确而严厉地谴责了这一“违背自然”的行为）；（6）各州有权规定自己辖区内的人们的行为，最高院不该插手；在没有“恶意”的情况下，under rational basis scrutiny （对应上回Affirmative Action 的Strict Scrutiny, 都是法律术语，为考察违宪与否的标准or test)，法院系统应当pay deference to the Legislative.
以上文字中凡加引号，读起来觉得怪怪的语句不顺的地方，都是至关重要的“法律要素”－－Legal elements in determining the constitutionality of the statute，或是宪法案件中的术语，直接翻译过来，读着不顺，却又担心不够原汁原味，请见谅。
劳伦斯背后有强大的同性恋团体支持，不过保守的法律、社会团体组织也不甘示弱，三月最高院听取oral argument的时候，门外的人们打出了"AIDS is God's revenge," "God sent the sniper" 的标语。至于六月的最终判决，这回没做预测的作业，不过估计还是5比4的判决。我看了看双方的三月的辩词，坚定保守派 Scalia 对劳伦斯的律师进行了一番狂轰滥炸式的质问，一如既往，态度鲜明地表示了对辩词的不屑，老大Rehnquist 意见看来也差不多。不过自由派这边态度就比较温和，Breyer 多次疑问政府的手伸到了人家bedroom 内的私事是不是太过分？
我命好苦，这话题对东方人是不是敏感了点？ 我每一念到 Sodomy 的时候声音就发飘。当温文尔雅、和蔼可亲的女法官（模拟法庭）面不改色的对我说："you know, sodomy, I mean, the anal sex and oral sex .... 我的脸上不禁掠过一片红霞～～ （众人晕倒 ^v^）。
想看劳伦斯同志的相片么？请看给他撑腰代表起诉的 Lambdale Legal的网页： http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1190
谨以此文献给此坛内与我一般无聊的朋友。以下为我今天的辩护提纲。
－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－－
May it please the court. My name is .., and I am representing the State of Texas. We respectfully request the Court to uphold the Texas Sodomy Statute, because:
I. The Texas sodomy statute does not violate the equal protection clause of the 14th Amendment either on the basis of sexual orientation or gender.
要点1、Sex Orientation – (1) There is no fundamental right to engage in sodomy; (2) homosexuals do not constitute a “suspect class,” and (3) the prohibition of homosexual conduct advances a legitimate state interest and is rationally related thereto, namely, preserving public morals.
First, on its face, the statute makes no classification on the basis of sexual orientation; rather, the statute is expressly directed at conduct. In other words, the law does not discriminate against homosexuals but rather deals with their sexual conduct. Heterosexuals could be prosecuted under the statute as well. The statute applies, at least facially, without respect to a defendant’s sexual orientation.
Neither the U.S. Supreme Court., the Texas S.Ct., nor the Texas Court of criminal appeals has found sexual orientation to be a “suspect class”. Thus, Rational Basis Scrutiny applies here and the statute is constitutional if it is rationally related to a legitimate state interest.
As the TA S.Ct. in Grigsby v. Reib indicated, one fundamental purpose of government is “to conserve the moral forces of society.” And the U.S. S.Ct. also indicated in Brower v. Hardwick, “most, if not all, of our law is based on notions of morality.” There is a long history of the state making moral judgments. Therefore, the statute advances a legitimate state interest in preserving public morals.
Where a statute does not run afoul of explicit constitutional protections, its moral justification is virtually unreviewable by the judiciary.
对方可能的抗辩：Discriminatory intent -- the statue is based on prejudice, rather than moral insight?
The constitution has vested the legislature, not the judiciary with the authority to make law. And legislature has the exclusive right to determine issues of public morality. (Otherwise, the judiciary would become the rule making authority for the society – this no doubt is undesirable and is strictly forbidden by the people. In a word, the Legislature could have found homosexual sodomy to be immoral. This case is about the right of Texas State to enforce the moral standards of its communities. Supreme Court has no business intruding in a matter pertaining to Texas.
The legislature had the constitutional power to conclude that sodomy, when performed by members of the same sex, is an act different from or more offensive than any such conduct performed by members of the opposite sex.
Evans v. Romer was a limited holding and should not apply here. It only prohibited the legislature from preventing persons the right to seek legislation favoring their interests. (Here in our case, appellants do not suggest that the statute unconstitutionally encumbers the their right to seek legislative protection from discriminatory practices. Therefore, Romer provides no support for such position that …) Romer does not deny the Court’s previous holding in Bowers; it does not elevate homosexuals to a suspect class; it does not suggest that statutes prohibiting homosexual conduct violate the EP Clause; and it does not challenge the concept that the preservation and protection of morality is a legitimate state interest.
要点2、Gender (Under TA law, classifications by gender are subject to SS and will be upheld only if the State can show such classification have been suitably tailored to serve a compelling state interest).
The statute equally applies to men and women, and two men engaged in homosexual conduct face the same sanction as two women.
Lovings v. Virginia does not apply (not binding) here because there is no indication in the legislative history of section 21.06 to “suggest it was intended to promote any hostility between the sexes, preserve perpetuate any societal or cultural bias with regard to gender.
The mere allusion to gender does not necessarily result in constitutional invalidity. If a statute does not impose burdens or benefits upon a particular gender, it does not subject individuals to unequal treatment. → Although section 21.06 includes the word “sex”, it does not elevate one gender over the other. Nor does it impose burdens on one gender not shared by the other.
Where the statute is gender-neutral on its face, the challenger bears the burden of showing the statute has had an adverse effect upon one gender and that such disproportionate impact can be traced to a discriminatory purpose. …
Section 21.06 does not have any fundamentally different (disparate) impact between men and women. … While the statue may adversely affect the conduct of male and female homosexuals, this does not raise the specter of gender-based discrimination.
→ The police power of a state may be legitimately exerted in the form of legislation where such statute bears a real and substantial relation to the public moral. Although the statute may have a disproportionate impact upon homosexual conduct, the statute is supported by a legitimate state interest.
II、Privacy & Due Process Argument
Neither the state nor federal constitution contains an explicit guarantee of privacy. Thus, there is no general constitutional right to privacy. Though, there are “constitutionally protected zones of privacy,” however, the Supreme Court in Brower Case concluded “the position that any kind of private sexual conduct between consenting adults is constitutionally insolated from state proscription is unsupportable.” Brower.
The Texas Supreme Court has held it does not protect private heterosexual behavior.
Homosexual conduct is not a right that is “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”
Although several states have legalized homosexual conduct, cultural trends and political movements should not have place in court’s decision because when the Legislature is not inappropriate in its moral and ethical judgments, it has the constitutional power to decide which evils it will restrain when enacting laws for the public good. Thus, the court should pay deference to the state legislature. And the Supreme Court has no business intruding in a matter pertaining to Texas.
A broad consensus that what happens in the privacy of the bedroom between consenting adults is simply none of the state's business." --- 小心对方反驳
Possible Claim （相关的三大判例及对方可能提出的观点）:
Evans v. Romer. – “singling out of groups of people based on popular dislike or disapproval?” Classifications based on sexual orientation can no longer be rationally justified by the State’s interest in protecting morality?
→ 反驳：This is a broad interpretation of Romer, and it is not supported by the text or rationale of the Court’s opinion.
In Romer, the Supreme Court considered the constitutionality of Colorado’s universal prohibition of any statute, regulation, ordinance, or policy making homosexual orientation the basis of any claim of minority status, quota preferences, protected status, or claim of discrimination. In striking down the proposed amendment, the S.Ct. declared that all citizens have the right to petition and seek legislative protection from their government. 科罗拉多宪法草案禁止给予同性恋者保护被最高院判处违宪。
Lovings v. Virginia: In this case, a white man and a black woman, both Virginia residents, were married in the District of Columbia. When they returned to Virginia, they were indicted for violating the state’s ban on interracial marriage. The Court reversed the judgment of the appellate court which upheld the constitutionality of the statutes, holding that the mere "equal application" of a statute containing racial classifications was not enough to remove the classification from the 14 Amend’s proscription of all invidious racial discriminations, and there was no legitimate overriding purpose which justified the classification. 早期的经典案例－－异族通婚。
Bowers v. Hardwick: respondent brought suit in federal district court, challenging the constitutionality of the Georgian statute because it criminalized consensual sodomy. The court of appeals held that the statute violated respondent's fundamental rights because his homosexual activity was a private and intimate association that was beyond the reach of state regulation by reason of the 11th and 14th Amendments of U.S. Constitution. Reversing that judgment, the Court held that the Due Process Clause of the 14th Amendment did not confer any fundamental right on homosexuals to engage in acts of consensual sodomy, even if the conduct occurred in the privacy of their own homes. 细细读读最后一句就会明白判决的意义。
备用argument:
1. Although times have changed since Brower Case and the society has a more accepting view of homosexuality today, the general public still has a negative perception about homosexual behavior.
2. In our case, police are not breaking down doors looking for violators; instead, they are likely to discover these sexual acts during "accidental intrusions."
作者：Anonymous 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
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