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.
Irrelevant issue. The relevant issue is that there is no "right" to threaten you with death because I don't like your sex life.
Care for one of our burgers? Tastes like chicken...
This turns out not to be the case. (The progress of science is one reason why attempts to build on Clintonian "prudentialities" rather than fixed principles cannot stand.)
Using the tax code to achieve political goals is a liberal trait. Hillary loves it.
Americans of Latino descent have higher rates of diabetes and obesity than Americans of Northern European descent.
Therefore, a law against the behavior of buying junk food could be enacted, making illegal for Hispanics to buy junk food.
Will the Supreme Court uphold such law?
Hmmmmm, so inhaling substances known to be not only toxic, but carcinogenic doesn't reprsent a danger to one's health? You're talking crazy. Smoking a cigarette may not make one sick for years, but it is never a helathy habit, and in the end taxes the system. Not evil? One could make the argument that since the body is the temple of the Holy Spirit, that putting a substance known to be not only toxic but carcinogenic is also immoral.
Logical consistancy is a b!tch
If you make a few more unanswerable arguments, HV will ignore you permanently, or until tomorrow, whichever comes first.
Let try and keep the debate in reality m'kay?
That is democracy. It is not liberty. Do you consider yourself a small d democrat? Your theory defines it.
Prohibiting all actions that do not in themselves advance the public good is the ultimate in collectivism. It surpasses communism in its potential for control. A people under such a system could not truthfully claim to be free.
14th Amendment violation. That was easy.
Exactly...this is the prudential argument. Behaviors don't automatically "get a pass" simply because everyone in society believes: I Really Wanna Do It = It's My Right To Do It.
We have lost the idea that a country exists to enhance the good of the whole, not to guarantee the most radical vision of freedom to everyone. If that were the case, why in the world would we form societies in the first place?
People gave up the "state of nature" to form societies for mutual protection, cultural homogeneity and the division of labor. In so doing, the inhabitants of that society agreed to behave according to certain norms to preserve the order. If you want "pure liberty", then go live on a desert island. What libertarians want is the safety, security, and stability of society while also engaging in anti-social behaviors like drug abuse, homosexuality etc. that would get them killed very quickly in the state of nature
How long would a bunch of heroin addicts last out in the wilderness? Not long. Thus you see that they are not "free" or "autonomous" individuals, but members of a society that are acting in a completely anti-social manner and socializing the costs onto people who do not behave in such a manner. If a rich heroin addict blows through his fortune and then ends up, finally, at the county hospital with a severe OD, who do you think is going to pick up the tab for that? People who do not behave in such a manner
People do not exist in a vacuum. There is no isolated sin or blessing.
That's why this Texas sodomy law will be struck down.
A man is allowed to perform cunnilingus, but a woman is not allowed to perform cunnilingus.
Right. Lack of self-control invites government control.
Why can't the libs and libbys understand this?
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You seem to be stuck in a catch 22 -
Without morals government will have to control us so therefore we must have government enforce the moral code to save us from- er, ah, government control.
Such behavior harms the common good (and the consenting sinners). All sin does. And law should be ordered to promoting the common good.
Moreover, consent does not justify evil behavior. One person may consent to being the slave of another or to being tortured by another. But society would be entirely justified in prohibiting such agreements.
It is unenforcable and such laws breed contempt for legitimate laws.
That's a fair point. However, such a law would make it possible to "clean out" public bathrooms, etc.
The term sodomy and the behavior it describes, are open to interpretation. (Like pornography)
Many laws are. But that's not the case here. The definition is pretty straightforward:
sod·om·y n.Any of various forms of sexual intercourse held to be unnatural or abnormal, especially anal intercourse or bestiality.
Oral sex with your wife would be defined as sodomy and if you think that it should be criminalized you are on a different level than me.
When the act is "finished" orally, yes, it represents sodomy. Such an act is obviously opposed to the natural order.
God will deal with sinners at the judgement, he does not require your puny efforts to deal with it by violence or the threat thereof.
So God requires that we don't punish evil acts? Will I be rewarded for my opposition to the prohibition of intrinsically evil acts?
And so on.
Nonsense. The 14th Amendment doesn't create a constitutional right to commit sodomy, nor was it intended to do so.
Criminal sodomy statutes in effect in 1868: Alabama: Ala. Rev. Code 3604 (1867). Arizona (Terr.): Howell Code, ch. 10, 48 (1865). Arkansas: Ark. Stat., ch. 51, Art. IV, 5 (1858). California: 1 Cal. Gen. Laws, 1450, 48 (1865). Colorado (Terr.): Colo. Rev. Stat., ch. 22, 45, 46 (1868). Connecticut: Conn. Gen. Stat., Tit. 122, ch. 7, 124 (1866). Delaware: Del. Rev. Stat., ch. 131, 7 (1893). Florida: Fla. Rev. Stat., div. 5, 2614 (passed 1868) (1892). Georgia: Ga. Code 4286, 4287, 4290 (1867). Kingdom of Hawaii: Haw. Penal Code, ch. 13, 11 (1869). Illinois: Ill. Rev. Stat., div. 5, 49, 50 (1845). Kansas (Terr.): Kan. Stat., ch. 53, 7 (1855). Kentucky: 1 Ky. Rev. Stat., ch. 28, Art. IV, 11 (1860). Louisiana: La. Rev. Stat., Crimes and Offences, 5 (1856). Maine: Me. Rev. Stat., Tit. XII, ch. 160, 4 (1840). Maryland: 1 Md. Code, Art. 30, 201 (1860). Massachusetts: Mass. Gen. Stat., ch. 165, 18 (1860). Michigan: Mich. Rev. Stat., Tit. 30, ch. 158, 16 (1846). Minnesota: Minn. Stat., ch. 96, 13 (1859). Mississippi: Miss. Rev. Code, ch. 64, LII, Art. 238 (1857). Missouri: 1 Mo. Rev. Stat., ch. 50, Art. VIII, 7 (1856). Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal Practice Acts, ch. IV, 44 (1866). Nebraska (Terr.): Neb. Rev. Stat., Crim. Code, ch. 4, 47 (1866). [478 U.S. 186, 194] Nevada (Terr.): Nev. Comp. Laws, 1861-1900, Crimes and Punishments, 45. New Hampshire: N. H. Laws, Act. of June 19, 1812, 5 (1815). New Jersey: N. J. Rev. Stat., Tit. 8, ch. 1, 9 (1847). New York: 3 N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 5, 20 (5th ed. 1859). North Carolina: N.C. Rev. Code, ch. 34, 6 (1855). Oregon: Laws of Ore., Crimes - Against Morality, etc., ch. 7, 655 (1874). Pennsylvania: Act of Mar. 31, 1860, 32, Pub. L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905). Rhode Island: R. I. Gen. Stat., ch. 232, 12 (1872). South Carolina: Act of 1712, in 2 Stat. at Large of S. C. 1682-1716, p. 493 (1837). Tennessee: Tenn. Code, ch. 8, Art. 1, 4843 (1858). Texas: Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860). Vermont: Acts and Laws of the State of Vt. (1779). Virginia: Va. Code, ch. 149, 12 (1868). West Virginia: W. Va. Code, ch. 149, 12 (1868). Wisconsin (Terr.): Wis. Stat. 14, p. 367 (1839).
No, that is a principled argument. A principled argument in the realm of politics says that certain things are simply forbidden to the State. A prudential argument says that the State can do what it can get away with doing.
We've had eight years of prudential-style government.
It is true that a society that that could pass, for instance, a Human Life Amendment would never need one in the first place.
However, I am pointing out that many of the citizens in this society are using their vote to socialize the consequences of their anti-social behavior onto those of us who do not behave in such a manner.
Tell you what: why don't all the sex perverts, flamers, whoremongers, drug addicts, etc. everyone that doesn't like the "Victorian Moral Standards" of people like yours truly find a nice plot of land, and we social conservatives will do the same. See how easy it is to keep the social order and rule of law in a place where every time you try to curtail any kind of behavior for the greater good you hear: "You can't tell ME what to do!". I can guarantee that tyranny would result in such a place very quickly.
See Republic, Weimar.
One act is ordered to pleasing one's spouse, the other is orderd to pleasing a member of the same sex. The latter is unnatural.
Fellatio:
Between man and woman is OK, but between man and man is Not OK.
See above. However, "finishing" the act orally is unnatural.
Anal Intercourse:
Between man and woman is OK, but between man and man is Not OK.
Unnatural in both cases.
Where is the “equal protection under the law?”
Homosexuality is unnatural and intrinsically disordered. Heterosexuality is natural.
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