Friday, January 30, 2004

alarming, yet rational
The ACLU intends to appeal this morning's State v. Limon decision. If you don't have the time or patience to read the full decision (but you ought to, as the 3 opinions demonstrate 3 clearly different views on the role of the Courts) click on the ACLU press release above. The concurring opinion almost made me as angry as Green's opinion. Malone's was pretty close to the Clarence Thomas opinion in Lawrence - "sheesh, that law does suck, but what are WE supposed to do about it?") I mean, check this out "In Limon's case, the sentencing disparity between a conviction of sodomy and a conviction under 21-3522 is alarming. However, this reflects a problem with our state's sentencing guidelines rather than implicating the constitutionality of the statute. The legislature can address the inequity suffered by Limon and others in his position without this court declaring the present statute unconstitutional." Translation: Not my job.

Any first year law student knows it's an uphill battle when dealing with "rational basis" reasoning - a court can basically pull anything out of its ass and call it "rational" as long as it doesn't sound utterly ridiculous (this is called giving deference to the democratically-elected legislatures - wouldn't want any activist judges telling us to treat queers fairly, now would we?) -- which makes me wonder why everyone was so optimistic about this case.

And you know what else is scarey? Get to the bottom of Green's opinion, the Remedy section - here he states "even if the statute were declared unconstitutional, the proper remedy would be to strike down the entire statute." In other words, fairness would've dictated that if they found the law unconstitutional, they'd get rid of the Romeo and Juliet law in its entirety, keep the kid in jail for 17 years, rather than apply it equally to hetero- and homo-sexual acts, and let the poor kid out of jail!