Re: Bowers Overruled

[Bryan Wildenthal]

Title: Message

Justice Kennedy's majority opinion seems to endorse a substantive due process liberty to engage in private consensual adult sexual acts, "absent injury to a person or abuse of an institution that the law protects."   This language seems to me designed to (possibly) shield laws against adultery from invalidation, and more likely, to preclude use of the decision as precedent for attacking the restriction of legal marriage to heterosexual couples (a widely discussed possibility if the Court had relied on a Romer-type equal protection rationale, as many, including me, thought they might).   This language does, however, appear to me to wipe out the U.S. military's sodomy prohibition.   Or is anyone prepared to argue that servicemembers already sacrificing so much for their country should be denied the right, at least while off-duty in private, to engage in sexual activity that civilian gay people are now free to engage in?   Note that I am leaving aside for now the issue whether *same-sex* "sodomy" should continue to be grounds for *discharge* from the military under the DADT policy.  The issue is whether oral and anal sex (which military law bans regardless of the sexes of the participants, and regardless of when or where the conduct takes place) can still be the basis for *criminal prosecution.*   Bryan Wildenthal Thomas Jefferson School of Law