Re: Bowers Overruled

[Francisco Martin]

Title: Message

Prof. Wildenthal writes: "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 regar! dless of the sexes of the participants, and regardless of when or where the conduct takes place) can still be the basis for *criminal prosecution."   Comment:  Why leave aside the discharge issue?  Given that the Court in Lawrence cited several European Court of Human Rights decisions, it would not be too much a stretch to see the Court also invalidating military discharges for homosexual conduct because the European Court already has held that such discharges are violations of the right to privacy.  See Smith & Grady v. UK; Lustig-Prean and Beckett v. UK.   A couple of other comments:  It is refreshing to see that in two Supreme Court cases over the last week (Grutter and Lawrence), justices have cited international human rights law.  On the other hand, Justice Scalia continues to see international human rights law only as "foreign" law.  Isn't the U.S. a party to the ICCPR, and didn't the UN Human Rights Committee in Toonen v. Australia also hold that the right to privacy under the ICCPR extended to homosexual conduct?!   Francisco Forrest Martin