I’m still reading the Supreme Court decisions handed down last week: the two affirmative action/University of Michigan cases (Gratz v. Bollinger, Grutter v. Bollinger) and the Texas sodomy case (Lawrence v. Texas), and it’s a hard slog. I think it’s worthwhile, though. Reading Bush v. Gore was.
When reading Supreme Court opinions, I’m struck by how well they (or at least their clerks) write. The justices impress me as intelligent, principled, hard-working people, even when I disagree with the decision or the reasoning that was used. I guess this is what it feels like to have respect for a branch of the government. Funny how I’m not used to this feeling.
Anyway, I was reading Lawrence today and I came across this bit, from the majority opinion:
Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults.
California used to have(*) a rape law that, among other things, described the following scenario as rape:
1. Persons A and B are both over age 18.
2. Person B is intoxicated, and person A knows it (or should reasonably know it)
3. Person A has penetrative intercourse with person B.
4. Persons A and B are not married.
My reading of this is that it’s illegal to drug and rape someone, as long as that person is not your spouse. Or, the right of married adults to have sex when one of them is incapacitated by drink does not guarantee a similar right to unmarried people.
My question is, under the Supreme Court’s ruling in Lawrence, can a law of this nature stand? It seems to me that it can’t; that the Supreme Court has said that you can’t extend special rights (e.g., legal consensual sodomy in the Texas case) only to married couples, or only to heterosexual couples. So that leaves the California legislature with a choice: either take away the “right” of married people to drug and rape their spouses, or extend this “right” to unmarried people as well.
In this case it’s obvious which way they’ll go, and in fact (see below) it’s already illegal in California to have penetrative sex with your spouse if you should reasonably know your spouse is intoxicated.
This isn’t a terribly good example, because I don’t see why there should be different rules for spousal vs. non-spousal rape in the first place. But the Supreme Court seems to be limiting the situations in which the states can discriminate by marital status. In which case, why have a legal system which recognizes marriage at all?
* I say “used to have” because the law appears to have been changed. See Sections 261-269 California Penal Code. The “intoxication” clause is 261.3 (non-spousal rape) and 262.2 (spousal rape). This renders the specific question moot, but leaves the general question — Can states have criminal laws that discriminate by married status? — open.