Supremes In Action - Meanwhile, back on the home front, the first articles reporting on the Lawrence oral argument are now out -- the AP and Reuters both have late-breaking updates. A transcript will eventually be available, and perhaps an audio recording, but of course there were no TV cameras allowed.

As close observers will know, the Supremes are being offered two choices for how to strike down the Texas homosexual conduct law:

A. The law is unconstutitonal under the equal protection clause of the 14th Amendment because it criminalizes activity based solely on the sex of the perpetrator. (In Texas, straight sodomy is legal.)

B. Under the traditional "right to privacy" argument, which derives from the due process clause of the 5th Amendment, the state must have a compelling governmental interest to regulate a fundamental right of the people. Presumably Texas would not meet this test.

If the court overturns the law, which of these arguments prevails will be crucial in assessing the broader effect of the ruling. Theory A would only apply to the four states with single-sex sodomy laws, while theory B could invalidate generic sodomy laws in nine other states (including Virginia) as well. A decision based on due process would also result in the direct reversal of the SCOTUS itself, which ruled the opposite way just sixteen years ago in Bowers v. Hardwick.

Some pundits might argue that a conservative court like the current one would take the first route, because it invalidates fewer laws and stays away from the murky area of privacy rights, which do not appear in the literal text of the Constitution and which have yielded very controversial decisions like Roe v. Wade's protection of abortion. Moreover, Justice Anthony Kennedy, a crucial swing vote, used the equal protection argument in invalidating Colorado's noxiously anti-gay Amendment 2 in 1996.

I have a different prognostication, however. Times have changed, and even the homophobes in Texas have all but given up on prosecuting gay sex. To them, the real threat is now gay marriage. There is a real possibility that a decision based on the equal protection clause would open the floodgates of litigation across the land. These cases would argue that just as sodomy can't be legal for straights but not for gays, homosexuals can't be barred from state-sanctioned marriage. A wary court would have to have this prospect in mind as it deliberates. And I don't think these justices are ready to clear the way for gay marriage. However, the petitioners and their lawyers at Lambda have given them a way out. By recognizing that the right to privacy applies to gay sex, they can "do the right thing" -- not just for Texans but everyone -- yet save the whole marriage debate for another day.

All this analysis presumes that the court is inclined to rule in favor of the defendants. Initial reports do seem to be positive, even if the court was divided. But Lambda Legal isn't going to put all its eggs in this one basket -- they've begun a new initiative to attack sodomy laws at the grass-roots level. Cross your fingers.