A Turning Point? Part II - I'm terribly far behind on my promise to say something more about the decision of the Supreme Court to review the constitutionality of Texas's sodomy law. A reminder came today in an email from Lambda Legal, which is the lead group behind the SCOTUS challenge. In an effort to gather evidence of the discriminatory effect of sodomy laws on gays (even those not charged with a violation), Lambda is asking anyone who has a story to come forward. As they note,

Sodomy laws are used as an excuse for generally denying basic rights and equal treatment to LGBT people. We are branded as criminals and treated as second-class citizens. These laws are also widely used to justify discrimination in our everyday lives -- to deny us employment, to block custody or visitation with our children, and even to intimidate us out of exercising our First Amendment rights.

That's certainly the case in Virginia, where reform efforts can't make headway against extremists in charge of General Assembly committees. I don't have a story to tell, but given the uselessness of political action, I can't think of a more effective place to put my charity budget this upcoming season.

The biggest question in my mind is not whether the Supremes will strike down the Texas "homosexual conduct" law -- I'm so certain of that I'll gladly put my money down. Rather, the question is whether the Court will go beyond a minimal ruling that such law, which applies only to gays, is unconstitutional, and instead more broadly overturn its infamous 1986 ruling in Bowers v. Hardwick. The effect of such a ruling would be to invalidate even "sexuality-neutral" sodomy laws, like the one we have here in Virginia and eight other states.

The most significant high court case since Hardwick was 1996's Romer v. Evans, which threw out Colorado's Amendment 2 barring non-discrimination laws at the city and county level in the state. That case did not turn on the controversial (and unwritten) constitutional "right to privacy," but rather on the violation of the equal protection guarantee. The Texas case could be decided on the same basis, but that would reflect far less than the complete victory I believe is within reach. (The Washington Blade has a good analysis of the legal issues this time around.)

It says a great deal about the shift in our society since 1986 that it is exclusively conservatives who now debate the wisdom of sodomy laws. (The left-of-center crowd, and most of the center too, has long since reached unanimity on the subject.) Thus we have FOXNews columnists making the case for sodomy repeal, noting state courts have already done so in such liberal hotbeds as Arkansas and Kentucky. Moreover, when the Wall Street Journal editorial board dismisses the laws as "an anachronism but one that the states themselves can repeal if they're so inclined," the Cato Institute jumps on its case. Not only that, but in both of these examples, the authors write to support a court decision that would invalidate all sodomy laws, not just those explicitly aimed at gays. In doing so, they embrace the idea of privacy inherent in our most traditional notions of personal liberty. Neo-conservatives may not like activists judges, but they don't much agree with government regulation of the bedroom either.

Meanwhile, back in the mainstream, look for Lamba to corral "an unparalleled group" of "the nation's most respected" centrist organizations to file friend-of-the-court briefs supporing its position, starting next month. My guess is the Supremes (or 5/9ths of them, anyway) are already inclined to do the right thing. So who wants to take my bet?