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Libertarians Join Liberals in Challenging Sodomy Law
NYTimes ^ | March 19, 2003 | LINDA GREENHOUSE

Posted on 03/19/2003 12:48:02 AM PST by RJCogburn

The constitutional challenge to the Texas "homosexual conduct" law that the Supreme Court will take up next week has galvanized not only traditional gay rights and civil rights organizations, but also libertarian groups that see the case as a chance to deliver their own message to the justices.

The message is one of freedom from government control over private choices, economic as well as sexual. "Libertarians argue that the government has no business in the bedroom or in the boardroom," Roger Pilon, vice president for legal affairs at the Cato Institute, said today, describing the motivation for the institute, a leading libertarian research organization here, to file a brief on behalf of two gay men who are challenging the Texas law.

Dana Berliner, a lawyer for the Institute for Justice, another prominent libertarian group here that also filed a brief, said, "Most people may see this as a case purely about homosexuality, but we don't look at it that way at all." The Institute for Justice usually litigates against government regulation of small business and in favor of "school choice" tuition voucher programs for nonpublic schools.

"If the government can regulate private sexual behavior, it's hard to imagine what the government couldn't regulate," Ms. Berliner said. "That's almost so basic that it's easy to miss the forest for the trees."

The Texas case is a challenge to a law that makes it a crime for people of the same sex to engage in "deviate sexual intercourse," defined as oral or anal sex. In accepting the case, the justices agreed to consider whether to overturn a 1986 precedent, Bowers v. Hardwick, which upheld a Georgia sodomy law that at least on its face, if not in application, also applied to heterosexuals.

While the Texas case has received enormous attention from gay news media organizations and other groups that view the 1986 decision as particularly notorious, it has been largely overshadowed in a busy Supreme Court term by the challenge to the University of Michigan's affirmative action program. The justices accepted both cases on the same day last December, and briefing has proceeded along identical schedules. The Texas case will be argued March 26 and the Michigan case six days later, on April 1.

Although libertarian-sounding arguments were presented to the court as part of the overall debate over the right to privacy in the Bowers v. Hardwick case, they were not the solitary focus of any of the presentations then. The Institute for Justice had not yet been established, and the Cato Institute, which dates to 1977, had not begun to file legal briefs. Whether the arguments will attract a conservative libertarian-leaning justice like Clarence Thomas, who was not on the court in 1986, remains to be seen.

More traditional conservative groups have entered the case on the state's side, among them the American Center for Law and Justice, a group affiliated with the Rev. Pat Robertson that is a frequent participant in Supreme Court cases.

The split among conservatives demonstrates "a diversity of opinion among our side," Jay Alan Sekulow, the center's chief counsel, said today. He said the decision to come in on the state's side presented a "tough case, one that we approached with reluctance." He said he decided to enter the case after concluding that acceptance of the gay rights arguments by the court might provide a constitutional foundation for same-sex marriage.

The marriage issue also brought other conservative groups into the case on the state's side. "The Texas statute is a reasonable means of promoting and protecting marriage — the union of a man and a woman," the Family Research Council and Focus on the Family told the court in a joint brief.

While the Texas case underscores the split between social and libertarian conservatives, it is evident at the same time that the alliance between the libertarians and the traditional civil rights organizations is unlikely to extend further. The two are on opposite sides in the University of Michigan case, with both the Cato Institute and the Institute for Justice opposing affirmative action while nearly every traditional civil rights organization has filed a brief on Michigan's side. The Bush administration, which filed a brief opposing the Michigan program, did not take a stand in the Texas case.

In 1986, when the court decided Bowers v. Hardwick, half the states had criminal sodomy laws on their books. Now just 13 do. Texas is one of four, along with Kansas, Oklahoma, and Missouri, with laws that apply only to sexual activity between people of the same sex. The sodomy laws of the other nine states — Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia — do not make that distinction. The Georgia law that the Supreme Court upheld was later invalidated by the Georgia Supreme Court.

The Texas law is being challenged by John G. Lawrence and Tyron Garner, who were found having sex in Mr. Lawrence's Houston apartment by police officers who entered through an unlocked door after receiving a report from a neighbor that there was a man with a gun in the apartment. The neighbor was later convicted of filing a false report. The two men were held in jail overnight, prosecuted and fined $200 each. Represented by the Lambda Legal Defense and Education Fund, they challenged the constitutionality of the law and lost in a middle-level state appeals court. The Texas Supreme Court refused to hear the case.

The United States Supreme Court's decision to take the case has been interpreted on both sides as an indication that the court is likely to rule against the state. Both Texas and the organizations that have filed briefs on its side devote considerable energy in the briefs to trying to convince the justices that granting the case was a mistake, a choice of tactics that is usually an indication of concern that a decision that does reach the merits will be unfavorable.

If the justices do strike down the Texas law, the implications of the decision will depend on which route the court selects from among several that are available. The court could find that by singling out same-sex behavior Texas has violated the constitutional guarantee of equal protection. Because the Bowers v. Hardwick decision did not address equal protection, instead rejecting an argument based on the right to privacy, such a decision would not necessarily require the court to overrule the 1986 precedent.

The Lambda Legal Defense and Education Fund's brief for the two men urges the court to go further and rule that any law making private consensual sexual behavior a crime infringes the liberty protected by the Constitution's due process guarantee. Several arguments in its brief appear tailored to Justice Sandra Day O'Connor, who voted with the majority in Bowers v. Hardwick but is now assumed, on the basis of her later support for abortion rights and her votes in other due process cases, to be at least open to persuasion.

For example, the brief includes a quotation from Jane Dee Hull, then the Republican governor of Arizona, where Justice O'Connor once served in the Legislature, on signing a bill repealing the state's sodomy law in 2001. "At the end of the day, I returned to one of my most basic beliefs about government: It does not belong in our private lives," Governor Hull said.


TOPICS: Constitution/Conservatism; Culture/Society; Extended News
KEYWORDS: 3branchesofgovt; homosexualagenda; ifitfeelsgooddoit; itsjustsex; legislatefromcourts; libertariansliberals; nonewtaletotell; peckingparty; sodomylaws; usualsuspects
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Hanging my hat with the liberals and libertarians on this one.
1 posted on 03/19/2003 12:48:02 AM PST by RJCogburn
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To: RJCogburn
Here's the Table of Contents from the Cato Institute amicus brief, which gives an overview of its approach:

ARGUMENT

I. FIRST PRINCIPLES: THE FOURTEENTH AMENDMENT REQUIRES THAT STATE CRIMINAL LAWS CLEARLY NOTIFY CITIZENS OF THEIR COVERAGE, NOT DISCRIMINATE ARBITRARILY AGAINST CLASSES OF PERSONS, AND RESPECT FUNDAMENTAL LIBERTIES

A. The Legality Principle

B. The Equality Principle

C. The Liberty Principle

II. HISTORY: SODOMY STATUTES HAVE HISTORICALLY FOCUSED ON PREDATORY AND PUBLIC ACTIVITIES; CONSENSUAL "HOMOSEXUAL" ACTIVITIES BECAME THEIR FOCUS ONLY IN THE MID-TWENTIETH CENTURY

A. Nineteenth-Century Sodomy Laws

B. Expansion of Sodomy Laws, 1879-1969

C. Sodomy Reform and Reformulation, 1969-2002

III. DOCTRINE: TEXAS'S HOMOSEXUAL CONDUCT LAW VIOLATES THE DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES OR IMMUNITIES CLAUSES OF THE FOURTEENTH AMENDMENT

A. The Texas Homosexual Conduct Law Violates the Equal Protection Clause, as Construed in Romer v. Evans, For It Targets Gay People as an Outlaw Class Because of Antigay Animus

B. The Texas Homosexual Conduct Law Violates the Due Process Clause, as it Criminalizes Gay People's Most Private Activities; Bowers v. Hardwick Should Be Overruled

C. The Texas Homosexual Conduct Law Violates the Privileges and Immunities Clause

2 posted on 03/19/2003 1:03:46 AM PST by AntiGuv ()
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To: RJCogburn
Sounds like a crappy deal.
3 posted on 03/19/2003 1:35:06 AM PST by dc-zoo
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To: RJCogburn
As if this law had been enacted recklessly... I will be amazed about how only Libertarian laws and Libertarian PC dependencies are deemed acceptable.
4 posted on 03/19/2003 1:58:03 AM PST by JudgemAll
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To: RJCogburn
Hanging my hat with the liberals and libertarians on this one.

Interesting from just a semantic point, though, that Greenhouse writes:

The split among conservatives demonstrates "a diversity of opinion among our side," Jay Alan Sekulow, the center's chief counsel, said today.

I guess in the NY Times style-guide libertarians are a type of conservative. Certainly something that, more and more, I can live with.

5 posted on 03/19/2003 4:29:17 AM PST by Celtjew Libertarian (No more will we pretend that our desire/For liberty is number-cold and has no fire.)
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To: dd5339
TX ping
6 posted on 03/19/2003 5:49:24 AM PST by Vic3O3 (Texan-to-be...at least there's CCW!)
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To: RJCogburn
Certainly the proponents of smaller government can see why its absolutely necessary to arrest two men having sex in a private home.
7 posted on 03/19/2003 5:51:36 AM PST by Wolfie
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To: RJCogburn
Gee, this is a complete surprise...

Nothing like trying to ratify a behavior that cuts male life expectancy in half, spreads AIDS and is the lifestyle of child molesters everywhere.

Typical looneytunsian fare...

8 posted on 03/19/2003 7:39:01 AM PST by HumanaeVitae
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To: RJCogburn
"He said the decision to come in on the state's side presented a "tough case, one that we approached with reluctance."

One of the consequences of the fusion between libertarian thought and conservative thought in the modern "conservative" movement is the hamstringing of people like Mr. Seuklow of the ACLJ.

Memo to Mr. Seuklow: no morals, no liberty. Amicus curaie away...

9 posted on 03/19/2003 7:42:26 AM PST by HumanaeVitae
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To: HumanaeVitae
Still trotting out that junk statistic?
10 posted on 03/19/2003 7:42:40 AM PST by steve-b
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To: steve-b
Now I know the answer to the question I asked before. You're done steve. No more replies to you.
11 posted on 03/19/2003 7:44:09 AM PST by HumanaeVitae
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To: RJCogburn
Libertarians Join Liberals in Challenging Sodomy Law

I can hear it now. They're not "Pro-Sodomy," they're "Pro-Choice."

12 posted on 03/19/2003 7:44:48 AM PST by Aquinasfan
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To: HumanaeVitae
If the government can regulate private sexual behavior, it's hard to imagine what the government couldn't regulate

But that's no problem to someone like you who does not believe that there should be any right to freedom of speech, any right to keep and bear arms, etc.

13 posted on 03/19/2003 7:45:49 AM PST by steve-b
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To: HumanaeVitae
Nothing like trying to ratify a behavior that cuts male life expectancy in half

KInda like eating cheeseburgers.

14 posted on 03/19/2003 7:48:36 AM PST by Protagoras
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To: Aquinasfan
It's also nice to know that the NYT are such avid readers of Freerepublic. It's an old trick for you guys...finding divisions in the conservative movement and then highlighting them...Powell and Rumsfeld etc. Very clever. It doesn't matter. The left is toast anyway.
15 posted on 03/19/2003 7:49:34 AM PST by HumanaeVitae
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To: HumanaeVitae
You're done steve. No more replies to you.

Let's take a Trip Down Memory Lane to... yesterday.

[cue funky SFX music]

To: steve-b
You are now on the permanent ignore list.
posted on 03/18/2003 8:52 AM PST by HumanaeVitae
Hans Blix, is that you? I'd recognize your Final Last Chance I Really Mean It This Time style anywhere....
16 posted on 03/19/2003 7:49:35 AM PST by steve-b
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To: Aquinasfan
They're not "Pro-Sodomy," they're "Pro-Choice."

Anti government intrusion.

17 posted on 03/19/2003 7:50:14 AM PST by Protagoras
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To: Protagoras
Cheeseburgers molest children? Cheeseburgers spead AIDS?
18 posted on 03/19/2003 7:50:52 AM PST by HumanaeVitae
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To: HumanaeVitae
Naturally, the NYT seeks so-called "conservatives" who advocate Big Brotherism as allies in its own quest for Big Brotherism.
19 posted on 03/19/2003 7:52:37 AM PST by steve-b
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To: RJCogburn
"Dana Berliner, a lawyer for the Institute for Justice, another prominent libertarian group here that also filed a brief, said, 'Most people may see this as a case purely about homosexuality, but we don't look at it that way at all.'"

MEMO TO DANA BERLINER: DUH.

20 posted on 03/19/2003 7:53:10 AM PST by F16Fighter (Pray for American and British troops, and a swift and decisive end to this war.)
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To: HumanaeVitae
Cheeseburgers are suspected to cut life expectancy.

Everyone who molested children ate cheeseburgers. Everyone who has aids ate cheeseburgers.

Reductio ad absurdum.

21 posted on 03/19/2003 7:53:44 AM PST by Protagoras
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To: Protagoras
Well, that's no inconsistency, as HV does not believe that you have any right to eat cheesburgers.
22 posted on 03/19/2003 7:54:00 AM PST by steve-b
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To: Protagoras
You, sir, have truly lived up to your screen namesake. Please read a little more about the sophists to understand what that means.

As for the rest of what you wrote...well it's quite a mess.

23 posted on 03/19/2003 8:00:04 AM PST by HumanaeVitae
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To: Wolfie
Certainly the proponents of smaller government can see why its absolutely necessary to arrest two men having sex in a private home.

This law is not used, at least in Texas, to arrest homosexual activity in a private home. It is, however, a useful way to keep homosexuality from being taught as acceptable in our schools.

I need to have this confirmed, but I have been told that this challenge to the sodomy case was a setup from the beginning, i.e. two homosexuals made sure to get themselves arrested so that the statute could be challenged.

24 posted on 03/19/2003 8:00:16 AM PST by Zack Nguyen
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To: Zack Nguyen
This law is not used, at least in Texas, to arrest homosexual activity in a private home.

From the article:

The Texas law is being challenged by John G. Lawrence and Tyron Garner, who were found having sex in Mr. Lawrence's Houston apartment by police officers who entered through an unlocked door after receiving a report from a neighbor that there was a man with a gun in the apartment. The neighbor was later convicted of filing a false report. The two men were held in jail overnight, prosecuted and fined $200 each.

25 posted on 03/19/2003 8:04:58 AM PST by Wolfie
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To: HumanaeVitae
You, sir, have truly lived up to your screen namesake.

Thanks!

Please read a little more about the sophists to understand what that means.

I understand the term very well. Only the uneducated think that sophistry is a term of derision.

As for the rest of what you wrote...well it's quite a mess.

You are free to critique it. I showed why your comments were a mess.

26 posted on 03/19/2003 8:08:33 AM PST by Protagoras
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To: Protagoras
Nothing like trying to ratify a behavior that cuts male life expectancy in half

Kinda like eating cheeseburgers.

Er, no. Cheeseburgers are good for you. We beat this issue to death on yesterday's Atkins Diet thread. LOL!

27 posted on 03/19/2003 8:08:56 AM PST by Rytwyng
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To: Rytwyng
Only without the bun. :^}
28 posted on 03/19/2003 8:09:55 AM PST by Protagoras
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To: RJCogburn
"The Texas statute is a reasonable means of promoting and protecting marriage — the union of a man and a woman,"

No it's not. Marriage is clearly defined in law as being between man and woman. All this statute does is try to penalize a certain group of people for not harming anyone else.

29 posted on 03/19/2003 8:10:13 AM PST by realpatriot71 (legalize freedom!)
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To: Protagoras
Only the uneducated think that sophistry is a term of derision.

Really? Your screen profile correctly states that Protogoras held that there are two sides to every question.

Tell me, what is the other side to the question of raping and killing children?

After all, “man is the measure of all things.”

30 posted on 03/19/2003 8:12:34 AM PST by HumanaeVitae
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To: realpatriot71
certain group of people for not harming anyone else.

If homosexuals were required to state on their health insurance forms their sexual preference, do you think they would be able to afford the premiums that actuaries would set for them, given all the health problems that come part and parcel with homosexuality? Of course not.

The broader heterosexual community is subsidizing the gay lifestyle. They can't survive without heterosexuals. Thus, if I'm paying for it, I can regulate it.

31 posted on 03/19/2003 8:16:51 AM PST by HumanaeVitae
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To: HumanaeVitae
The thread is about sodomy laws. You have tried in vain to tie crime to consensual sex.

PS,,,Looking at my profile only confirms that you looked there for possible ammunition to make ad hominem attacks.

You need to brush up on your argumentation skills. Which are currently on the jr. high level.

32 posted on 03/19/2003 8:17:19 AM PST by Protagoras
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To: HumanaeVitae
Thus, if I'm paying for it, I can regulate it.

Same argument as communists and fascists use.

33 posted on 03/19/2003 8:18:27 AM PST by Protagoras
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To: Protagoras
Anti government intrusion.

"We're not pro-murder, we're pro-choice."
"We're not pro-abortion, we're pro-choice."
"We're not pro-sodomy, we're pro-choice."
"We're not pro-embezzling, we're pro-choice."

The question isn't whether it is moral to criminalize intrinsically evil acts, the question is whether it is prudent to criminalize particular evil acts.

I see no prudential reason to decriminalize sodomy. Those caught in the act should be prosecuted. However, that does not mean that the police should put cameras in bedrooms.

34 posted on 03/19/2003 8:21:31 AM PST by Aquinasfan
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To: Protagoras
No, what you are arguing is that homosexuality should be accepted in society, for some unstated reason. I hope you'll state it.

My argument is straightforward. Homosexuals cannot survive without the broader heterosexual community around them. Their lifestyle is too destructive to survive on their own. Therefore, they are socializing the costs of their behavior on the heterosexual community. Heterosexuals can survive without homosexuals, but not vice-versa. Therefore, we have every reason to limit their "rights" as we see fit.

If you want to have a broader argument...then answer these questions: atheist or theist, and are you, or are you not a force/fraud/coercion-exception libertarian?

35 posted on 03/19/2003 8:22:01 AM PST by HumanaeVitae
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To: HumanaeVitae
The broader heterosexual community is subsidizing the gay lifestyle. They can't survive without heterosexuals. Thus, if I'm paying for it, I can regulate it.

Paying out way more money for the elderly - perhaps we should make that illegal too?

36 posted on 03/19/2003 8:23:55 AM PST by realpatriot71 (legalize freedom!)
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To: HumanaeVitae
Thus, if I'm paying for it, I can regulate it.

So rather than attack the problem of socialized costs, you would rather grant power to the government to regulate every behavior that could conceivably impose a cost on another (i.e. everything). And you're a conservative?

37 posted on 03/19/2003 8:24:35 AM PST by ThinkDifferent (tick...tick...tick...)
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To: Aquinasfan
They're not "Pro-Sodomy," they're "Pro-Choice."

Correct. Just like I'm not pro-racist but I am pro-free speech.

38 posted on 03/19/2003 8:26:14 AM PST by ThinkDifferent (tick...tick...tick...)
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To: HumanaeVitae
Memo to Mr. Seuklow: no morals, no liberty.

Right. Lack of self-control invites government control.

Why can't the libs and libbys understand this?

39 posted on 03/19/2003 8:26:48 AM PST by Dataman
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To: realpatriot71
Growing old is not a voluntarily-chosen behavior. Neither is being born with Down's Syndrome, etc. congenital diseases. Homosexuality is a voluntarily-chosen behavior that is all negative and no positive. No good comes from homosexual conduct. We judge people on their behaviors.
40 posted on 03/19/2003 8:27:38 AM PST by HumanaeVitae
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To: HumanaeVitae
No, what you are arguing is that homosexuality should be accepted in society, for some unstated reason.

You lie.

41 posted on 03/19/2003 8:28:06 AM PST by Protagoras
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To: HumanaeVitae
If homosexuals were required to state on their health insurance forms their sexual preference, do you think they would be able to afford the premiums that actuaries would set for them, given all the health problems that come part and parcel with homosexuality?

Obviously homosexual activity opposes the common good or the common welfare. Well, it used to be obvious, anyway.

42 posted on 03/19/2003 8:29:10 AM PST by Aquinasfan
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To: Dataman
Lack of self-control invites government control.

Lack of leaving your valuables on the curb invites burglary.

43 posted on 03/19/2003 8:29:37 AM PST by Protagoras
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To: realpatriot71
Paying out way more money for the elderly - perhaps we should make that illegal too?

Unlike homosexual activity, aging isn't willed and, therefore, cannot be immoral.

44 posted on 03/19/2003 8:32:22 AM PST by Aquinasfan
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To: Aquinasfan
We're not pro-murder, we're pro-choice." "We're not pro-abortion, we're pro-choice." "We're not pro-sodomy, we're pro-choice." "We're not pro-embezzling, we're pro-choice."

Aquinas didn't advocate bearing false witness.

The question isn't whether it is moral to criminalize intrinsically evil acts, the question is whether it is prudent to criminalize particular evil acts.

It isn't moral nor prudent.

45 posted on 03/19/2003 8:32:26 AM PST by Protagoras
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To: HumanaeVitae
Homosexuals cannot survive without the broader heterosexual community around them.

Neither can heterosexuals so I'm not sure what your point is.

46 posted on 03/19/2003 8:33:36 AM PST by sakic
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To: HumanaeVitae
Growing old is not a voluntarily-chosen behavior. Neither is being born with Down's Syndrome, etc. congenital diseases. Homosexuality is a voluntarily-chosen behavior that is all negative and no positive. No good comes from homosexual conduct. We judge people on their behaviors.

So then you agree is not about the money, then but about behavior. You are trying to regulate behavior - at least I know where you're coming from

47 posted on 03/19/2003 8:33:50 AM PST by realpatriot71 (legalize freedom!)
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To: realpatriot71; HumanaeVitae
You are trying to regulate behavior - at least I know where you're coming from

All laws regulate behavior.

48 posted on 03/19/2003 8:36:07 AM PST by Dataman
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To: Aquinasfan
Unlike homosexual activity, aging isn't willed and, therefore, cannot be immoral.

I never said it was "immoral". Let try not to argue against position I've never taken, m'kay, it's counter-productive.

I was merely exploring the logical consistancies with the "I'm paying for it, blah, blah, blah . . ." argument.

49 posted on 03/19/2003 8:36:11 AM PST by realpatriot71 (legalize freedom!)
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To: ThinkDifferent
Correct. Just like I'm not pro-racist but I am pro-free speech.

It would not be immoral to suppress racist speech, but it might be imprudent.

Racist speech is immoral, just as murder is immoral. However, for prudential reasons, we tolerate this evil because we, as a society, judge the cost to society of supressing this evil to be greater than the evil itself.

One cost of this approach, however, is the promulgation of indifferentism throughout society regarding evil speech. "Hey, I can say whatever I want!"

50 posted on 03/19/2003 8:38:17 AM PST by Aquinasfan
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