March 30, 2004

What Lawrence (May Have? / May Not Have?) Wrought

by Chris Geidner

Last week, the Tennessee Court of Appeals reversed its January opinion upholding a restraining order that prohibited a father from "exposing" his child to his "gay lifestyle." I originally discussed the case on Jan. 9 at En Banc (which post can be found here), criticizing the court for its conflation of the following points:

1. Holds the order is not vague.
2. Holds the order is not overbroad.
3. Holds the order did not give notice that the husband could not tell his son he’s gay.
4. Holds the order did not prohibit the husband from telling his son he is gay.
5. Concludes the lack of notice means the contempt order putting him in jail for telling his son he is gay was invalid.

I went on to write that the problems with the ruling included that "[t]he appeals court held that the lower court gave improper notice of something [3, 5] that the appeals court said isn't there [4]," as well as that the court was wrong as to 1 & 2. About these, I wrote:

The court insulated the lower court’s order by holding that it was not overbroad or vague, construed out of the order this "notice" issue about dad telling his son he's gay, yet did not clarify how or why it chose to construe this out of the order. It gave no guidance for further enforcement of this order to keep First Amendment concerns at bay.

Now, after rehearing the case -- and with the ACLU's help -- the court is with me much of the way, discussing the issues of vagueness and overbreadth in great detail and writing that "[t]he language of the order was not specific enough to put Mr. Hogue on notice that his conversation with his son would violate the order." (9)

The court concluded that "the temporary restraining order is unenforceable and Mr. Hogue could not be punished for violating an unenforceable restraint or order." (10) This is in complete concurrence with what I said back in January.

The next step, however, is that this order was overbroad solely because it did not meet the specificity requirements for obtaining a restraining order. In other words, with more specificity this order could have been valid. Despite the court's charming language about how "[n]either gay parents nor heterosexual parents have special rights," (8) the court one page earlier referenced restraints being upheld as to "overnight visitation with the child in the presence of a non-spouse." (7) This, as Tennessee does not allow same-sex couples to marry, does create "special rights" for straight divorced persons and "special burdens" on gay divorced persons.

Thus, I don't quite buy the ACLU staff attorney Ken Choe's statement that "[t]his is a significant decision for gay and lesbian parents." It was a procedural TRO decision in a case in which the relevance of gay issues was ignored by the court (8) and Lawrence was not raised by Mr. Hogue, the gay dad (n.8). So, why is this a "gay rights" victory exactly?

(Thanks much to Howard for the pointer and for keeping on this case.)

* * *

In other interesting legal news, Virginia is charging a woman who was receiving oral sex in her car with a felony:

A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature.

The question is: Did Lawrence void the "crimes against nature" statute, or did it only do so as to private consensual sexual acts (leaving the statute around to prosecute public "crimes against nature")?

That's the more simple question. Here's the interesting one: Could the Due Process portions of the Lawrence decision be considered dicta since they were unnecessary to the Court's holding as to the "Homosexual Sodomy" Texas statute at issue there?

Without the Due Process considerations, O'Connor's Equal Protection concurrence -- called "tenable" by the majority -- is all that was actually necessary to the holding. At that point, Virginia's law -- regardless of the public-private distinction -- would not be voided by Lawrence. If that happened, though, a challenge could certainly be brought suggesting that both heterosexual and homosexual sexual activity is protected in light of Supreme Court precedent.

But, you'd only get to all that if you can convince someone that the Court doesn't get to decide what is and what is not dicta. Just because the Court states explicitly that it needs to reach an issue, does that mean it is necessarily correct? In some ways, certainly -- they are the justices of the Supreme Court. On the other hand -- like precedent, which is only apparent once relied upon -- it seems odd that the Court can state ipse dixit what is and what is not necessary to its present holding. (Although if someone can do so, I suppose it's the Supremes.)

(Thanks -- again and as always -- to Howard for the pointer.)

March 30, 2004 03:10 PM | TrackBack