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Swede Atlanta

(3,596 posts)
1. This could well be true
Fri Nov 9, 2012, 11:44 AM
Nov 2012

In Kennedy's majority opinion in Lawrence v. Texas he wrote about how society's opinions about homosexuality had evolved over time. He noted that the overwhelming majorities of states had repealed their sodomy laws or decriminalized consensual sexual conduct. He also noted the number of cities and states that had broad non-discrimination policies in areas such as housing, employment, etc. He also pointed out the number of private employers that included gay persons in their employment non-discrimination policies and some even offering "spousal-like" benefits such as access to health insurance.

He still had to find a Constitutional basis for the majority. He used a Due Process Analysis whereas O'Connor's concurring opinion was based on Equal Protection (Texas anti-sodomy statute only applied to same-sex sodomy but not heterosexual sodomy).

One might look at Kennedy's analysis of societal changes as being more akin to dicta than part of the actual legal framework for his decision but it is clear, based on the amount of time he took writing about these developments, they were important to the overall legal decision.

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