Lofton case

[David Cruz]

On Fri, 30 Jan 2004, Rick Duncan wrote:

> [snip]
>
> Bravo! This opinion is not an extremist opinion; it is
> a thoughtful, well-reasoned, and balanced opinion.

I will grant Rick that the court's analysis of Lawrence is not insane, and
indeed that Kennedy's doctrinally unconventional opinion necessitates
substantial work to unpack.  Were the only objectionable (to me) aspect of
the opinion what it said about Lawrence, my attack on it would not have
beeen nearly so "strident" (to quote Rick's full post).

But that's far from the opinion's only deficit, as described in my LENGHTY
post (none of the rest of which Rick addresses).

And I must strenuously object to Rick's fanciful characterization of the
opinion as "thoughtful"  and "well-reasoned."  In deciding that
governmental sexual orientation discrimination is subject only to rational
basis review under the Equal Protection Clause, rejecting a position
supported by arguments that even those who reject it must concede are
serious, the court engaged in NO ANALYSIS WHATSOEVER.  It simply gave a
string cite to its "sister circuits" that have rejected the argument.
But most and possibly all of those cases relied on THE NOW OVERRULED
Bowers v. Hardwick (or on cases that relied on Bowers)!

To resolve such an important issue on such an irresponsible and
indefensible basis is outrageous, and deserves denunciation in the
strongest possible terms.  Rick might sincerely not think it's extremist;
noscitur a sociis.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.