Mark Hasty weighs in on this controversy at The Bemusement Park and in the comments to my post below.

It may be truly bizarre, but I do believe the Supremes recognize the particular can of worms they’ve opened here. I believe what they may be asking the lower court to do is examine if the sentence was more severe than necessary strictly because the case involved a man molesting a boy. I don’t think anybody’s arguing that the verminous dude in question deserves a serious prison sentence; I think what is being set forth is the idea that, in sentencing people for sex crimes, you can’t use the gender of the perpetrator vis-a-vis the gender of the victim as justification for a harsher sentence.

Mark’s explanation of what’s happened and mine are the same. My problem is that such a ruling only makes sense in light of the Equal Protection Clause argument advanced by Justice O’Connor in her lone concurring opinion. Kennedy’s Opinion, which rested on the Due Process Clause and the made-up right to privacy, and joined by four other justices, should be “the law of the land.”

FILED UNDER: Law and the Courts, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Steven says:

    I am with you–an Equal Protection argument makes more sense than a Due Process one.

  2. Paul says:


    You are very correct. I guess we chalk it up to one more piece of disjointed thinking by the Supremes.

    Regardless if wether you agree with the ruling or don’t, clearly it is bad law.