By David Yin
In last week’s post, I wrote about how “perfect plaintiffs” can be outcome-determinative to the resolution of a case, or the crafting of a rule. Today we return to Dale Carpenter’s book Flagrant Conduct on Lawrence v. Texas,and the importance of a “perfect prosecution.”
In some cases where plaintiffs seek to challenge unjust laws, the challenge might be that those very laws are rarely enforced against private activity. Yet the fact that sodomy laws were rarely enforced did not diminish their invidious and destructive character. As Prof. Carpenter explains:
Homosexuals, unprotected from job discrimination in Texas and most other states in the 1990s, could be fired simply for being gay. Divorced gay parents could lose custody or face onerous restrictions on visitation with their children on the ground that they were presumptively criminal. Legislators used the existence of the sodomy law as a reason not to grant any civil rights protections to homosexuals…. Being branded a criminal class was also an invitation to discrimination and even violence….
[Read more…] about “Flagrant Conduct” and the Perfect Prosecution Part 2