Supreme Court Refuses to Hear Challenge to Pryor Appointment

The Supreme Court has refused to hear appeals related to Judge William Pryor's recess appointment to the 11th Circuit. The Christian Science Monitor has more. (Hat tip: Southern Appeal.)

The linked AP article repeats a distortion made by Pryor's opponents that he "compared homosexual acts to incest and pedophilia" in his Lawrence v. Texas amicus brief.

Here is what Pryor actually said in that brief, in its full context:

...the right that petitioners advocate is so expansively defined that it will inevitably cover a variety of supposedly consensual adult activity that has always been considered to be within the traditional police power of the States. “Among the liberties protected by the Constitution,” petitioners claim, “is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex.” According to petitioners, “[o]ne’s sexual orientation, the choice of one’s partner, and whether and how to connect sexually are profound attributes of personhood where compulsion by the State is anathema to liberty.” The scope of these claimed rights is breathtaking.

It should be noted, again, that the Texas statute in question does not criminalize petitioners’ sexual orientation, which may or may not be a matter of choice and thus may arguably be protected from state discrimination by the Equal Protection Clause of the Fourteenth Amendment. Rather, the Texas antisodomy statute criminalizes petitioners’ sexual activity, which is indisputably a matter of choice. Petitioners’ protestations to the contrary notwithstanding, a constitutional right that protects “the choice of one’s partner” and “whether and how to connect sexually” must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be “willing”).

It is clear that Pryor's point was not to compare homosexual acts to "prostitution, adultery, necrophelia, etc.," but rather to make a logical point that finding a constitutional "right" to participate in such acts would have much broader implications. Pryor addressed this specific issue in his Senate confirmation hearing, in response to an allegation by Sen. Russ Feingold (D., Wisconsin) that he had "equated private, consensual sexual activity between homosexuals to prostitution, adultery, necrophilia, bestiality, incest and pedophilia":

In the Lawrence case...I was upholding and urging the Supreme Court to reaffirm its decision of 1986 in Bowers versus Hardwick, which is the law of the land. And the argument to which you referred, the slippery slope argument, was taken from Justice White's majority opinion for the Supreme Court of the United States.

Bowers v. Hardwick, to which Pryor referred, was a case involving a challenge to the constitutionality of Georgia's sodomy law. The majority opinion, written by Justice White, stated(emphasis added):

And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

Pryor's opponents imply that he was making a moral comparison between the various types of behavior he mentioned. The truth is that he was doing no such thing. But, I guess it's too much to ask for the press to report the truth.