Are There Five Judges On SCOTUS Who Will Uphold The Fourteenth Amendment ?

LAWRENCE et al. v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
No. 02—102. Argued March 26, 2003–Decided June 26, 2003

Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U.S. 186, controlling on that point.

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3—18.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.

http://supct.law.cornell.edu/supct/html/02-102.ZS.html

Arthur Bruno Smelt and Christopher David Hammer, two men who wish to marry each other, appeal the district court's orders1 which (a) abstained as to their claim that three sections of the California law relating to marriage are unconstitutional,2 and (b) ruled adversely to them on their claims that two sections of the Federal Defense of Marriage Act (DOMA)3 are likewise unconstitutional. We affirm in part, reverse in part, and remand for dismissal of both DOMA claims.

Smelt and Hammer are both males who wish to obtain a California marriage license and to marry each other in that state. They applied to the County Clerk of Orange County, California, for issuance of a marriage license on two occasions. They were denied a license both times "because are of the same gender." Were it not for that, " meet the qualifications for issuance of a marriage license. applied for and received a Declaration of Domestic Partnership from the State of California dated January 10, 2000."4

Smelt and Hammer then brought this action against the County of Orange and the Orange County Clerk (collectively the County); and the State Registrar of Vital Statistics, California Department of Health Services (the State).5 The amended complaint alleged that to the extent that California Family Code sections 300,6 301,7 and 308.58 preclude them from obtaining a marriage license, those sections violate: equal protection; due process; "the Right to Life, Liberty and the Pursuit of Happiness"; "the right to be free from an undue invasion of the Right to Privacy; ... the Ninth Amendment Right of Reservation of all Rights not Enumerated to the People, and the Right to Travel, and The Right of Free Speech." The complaint also asserted that section 308.5 violates the Full Faith and Credit Clause of the United States Constitution.9

Additionally, the complaint raised federal constitutional challenges to DOMA. Specifically, it alleged that Section 2 of DOMA (28 U.S.C. 1738C)10 violates the United States Constitution's Due Process Cause (Fifth Amendment), equal protection rights (Fifth Amendment), the Right to Privacy, and the Full Faith and Credit Clause. Finally, it alleged that Section 3 of DOMA (1 U.S.C. 7)11 violates the "liberty interests protected by the Due Process Clause"; discriminates "on the basis of gender" and "sexual orientation" in violation of equal protection; and violates "the privacy interests protected by the Right to Privacy."

http://vlex.com/vid/smelt-rodrian-statistics-proposition-20519090