The Supreme Court ruled yesterday that the Texas statute making it a crime for two persons of the same-sex to engage in certain intimate sexual conduct violates the Due Process Clause.

I’ve always thought sodomy laws were pretty foolish. For the most part, they are entirely unenforceable and exist only to impose a set of moral standards on a group of people who do not hold those morals. While I’m no fan of homosexuality, I don’t think passing laws that ban gay sex will do anything to help homosexuals. This ruling finally settles a part of the law that has been glaringly obsolete for a while now, but it also raises some interesting questions.

Scalia wrote an excellent dissenting opinion, which interestingly enough has less to do with the case being ruled on and more to do with Roe v. Wade. Scalia writes:

Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely
divisive” decision) if: (1) its foundations have been “eroded”
by subsequent decisions, ante, at 15; (2) it has been subject
to “substantial and continuing” criticism, ibid.; and (3) it
has not induced “individual or societal reliance” that
counsels against overturning, ante, at 16. The problem is
that Roe itself—which today’s majority surely has no
disposition to overrule—satisfies these conditions to at
least the same degree as Bowers.

What he’s doing is laying some groundwork here for the eventual overturn of Roe on the basis that to overturn Bowers on these grounds must allow for an overturning of Roe on the same grounds. He also points to the fact that this decision greatly challenges many state laws on sexual behavior.

We’ll likely see at least one justice retire in the next few weeks, possibly several more. The shape of the Court in the fall could be very different than the one that handed down rulings this week.