A factor that none of the Justices in Lawrence v. Texas saw fit to mention – not the majority, not the concurrence, and not the dissents – is the fact that the AIDS plague provides ample justification for a legislative prohibition of the practice of homosexual sodomy. Since the early 1980s, AIDS has been a small epidemic in our nation and has created a major health catastrophe in Africa. By the end of December 2001, the CDC reports, a total of over 815,000 cases of AIDS were reported in this country, of which over 465,000 resulted in death. The CDC reported that more than 410,000 of the total cases involved men who engaged in sex with other men.
The public health consequences of men having anal sex with other men would itself provide a "police power" justification to state laws such as the Texas statute involved here, surely significant enough to satisfy the rational basis level of scrutiny that Kennedy says is appropriate.
The fact that the Texas legislature never raised this major public health concern as a justification for its prohibition is not particularly relevant. In its rational basis jurisprudence, the Court has always upheld a statute if its perception of any rational basis would support the law; it has never required that that rational basis in fact have been the reason that the law was enacted.
It is quite surprising that none of the Justices saw fit to mention this obtrusive presence in considering the validity of the Texas law.
7:49:57 AM 
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