Prop 8 Update: 6th Circuit v. 9th Circuit on the Meaning of Lawrence v. Texas


CitizenLink brings up a case recently decided on the 6th circuit where a man, citing Lawrence V. Texas challenged an Ohio law that criminalized a sexual relationship with his adult stepdaughter. Bruce Hausknecht writes:

The 6th Circuit U.S. Court of Appeals (covering Ohio, Michigan, Kentucky and Tennessee) this week affirmed the conviction of an Ohio man under that state’s criminal incest statute, rejecting the argument that the 2003 U.S. Supreme Court decision in Lawrence v. Texas invalidated all criminal statutes involving adult consensual sex. The consensual sex at issue in the Ohio case involved the man’s 22-year old stepdaughter.

...If the impact of Lawrence doesn’t even reach all criminal laws involving intimate relationships, as the 6th Circuit holds, then state civil laws – especially those involving a public institution like marriage – ought to be far beyond Lawrence‘s reach.

And yet, in the California federal courts, Lawrence played heavily in the 2010 trial court’s decision to strike down that state’s marriage amendment, Prop 8. The 9th Circuit, currently hearing the appeal, differs substantially from the 6th Circuit on the meaning of Lawrence.

I suspect that if and when the Prop 8 case hits the Supreme Court, there will be much discussion at oral argument about Lawrence v. Texas, and all eyes (and ears) will be focused on Justices Kennedy and Scalia.

What will Justice Kennedy do?

We don't know. But Justice Scalia's "excoriating dissent" in Lawrence v. Texas asserted that this decision would lead directly to a Constitutional right to gay marriage. We suspect Justice Kennedy will not want to be the vote that proves Justice Scalia was right about that.

Stay tuned.