Posted on 04/03/2003 1:46:27 AM PST by xsysmgr
Not infrequently Antonin Scalia lights up the Supreme Court with a lightning bolt of common sense. He did it again last week during oral arguments in Lawrence v. Texas.
This is the case that in determining whether homosexual behavior is a "right" may explode the foundation of law.
Famed Harvard lawyer Laurence Tribe wrote the brief submitted in the case by the American Civil Liberties Union. "Americans," he said, "have a fundamental right to be free from government regulation of consensual sexual conduct in the home."
Paul Smith, attorney for petitioners John Lawrence and Tyron Garner -- who were fined $200 in Houston for activities I will not describe here -- restated the proposition in his own brief. "Among the liberties protected by the Constitution," he said, "is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex."
Some may wonder why this issue is arriving only now in the Court. Didn't we settle this long ago -- like, say, in a Woodstock mud pit? Isn't anything goes sexuality official Baby Boom doctrine?
We certainly don't want police in our bedrooms, do we?
Well, as lawyer Smith discovered, Justice Scalia missed all that rot.
The lightning bolt of Scalia's common sense crashed down on Smith as he was explaining that the problem with the Texas law banning homosexual conduct is that it represents an effort by the majority to impose their morality on the minority.
"But society always . . . makes these moral judgments," said Scalia. "Why is this different from bigamy?"
Indeed, if people have a "fundamental right" to "consensual sexual conduct in the home," why can't a man take two wives? Why not three? Why can't everybody pick the conglomeration of consensual partners that suits their peculiar appetite? As long as it's done "in the home," not in the street, it's a fundamental right. Right?
Wrong, said lawyer Smith.
Excuse me?
Right there before God, man and Ruth Ginsburg, the lawyer arguing for "the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy" conceded that some consensual arrangements could be prohibited. "Now, bigamy," he said, "involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples' behaviors . . . "
So here is the real proposition before the Court: If a man has sex with a man, he is expressing a right. If he has sex with two women, he is still expressing a right. But if he marries the two women first the state can punish him to protect matrimony.
The current petitioners may believe this. But one suspects their bedfellows in the cause will soon be clamoring for logical consistency. They will give Scalia a straight answer. To his question, "Why is this different from bigamy?" they will answer: It is not. Bigamy, too, is a fundamental right.
Where does it end? Who can tell -- given that a ruling for the petitioners could cause catastrophic collateral damage to the foundation of law itself? All men, said the Founders, "are endowed by their Creator with certain unalienable rights." If all consensual adult sex is one of those rights, either God gave it to us or some force other than God is author of our liberty.
Seventeen years ago, in Bowers v. Hardwick, when Laurence Tribe first argued for this right, Justice Byron White, writing for the Court, said "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road."
Chief Justice Warren Burger scoffed at Tribe's claim. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching."
The power to do just that resides now with five judges.
That one is easy: Bigamy requires state sanction. If he had asked "Why is this different from group sex?" the simple answer would of course be that it isn't.
Burger was also wrong: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching."
No, it would only cast aside government as an incompetent and incapable enforcer of morality.
"Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated. Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society -- the family." ---- Chief Justice Moore of the Alabama Supreme Court in a decision denying custody of children to a lesbian mother.
The Corpus Juris Civilis is the sixth-century encyclopedic collection of Roman laws made under the sponsorship of Emperor Justinian. "It is Justinian's collection which served as the basis of canon law (the law of the Christian Church) and civil law (both European and English)."
The following is a statement in Law French from Corpus Juris: "'Sodomie est crime de majeste vers le Roy Celestre,' and [is] translated in a footnote as 'Sodomy is high treason against the King of Heaven.' At common law 'sodomy' and the phrase 'infamous crime against nature' were often used interchangeably."
"Thou shalt not lie with mankind, as with womankind: it [is] abomination." (KJV) Leviticus 18:22
"If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood [shall be] upon them."(KJV) Leviticus 20:13
"Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived; neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor homosexuals, nor thieves, nor the covetous, nor drunkards, nor revilers, nor swindlers, will inherit the kingdom of God." 1 Corinthians 6:9-10 (NASB)
"There shall be no whore of the daughters of Israel, nor a sodomite of the sons of Israel." (KJV) Deuteronomy 23:17
No matter how much society appears to change, the law on this subject has remained steadfast from the earliest history of the law, and that law is and must be our law today. The common law designates homosexuality as an inherent evil... ---- Chief Justice Moore of the Alabama Supreme Court in a decision denying custody of children to a lesbian mother.
"The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. " The United States Supreme Court in BOWERS v. HARDWICK, 478 U.S. 186 (1986) 478 U.S. 186
Criminal sodomy laws in effect in 1791:
Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, 2 (rev. 1672). Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, 5 (passed 1719). Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981). Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975). Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785. New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978). Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, 7. New York: Laws of New York, ch. 21 (passed 1787). [478 U.S. 186, 193] At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, ch. 17, p. 314 (Martin ed. 1792). Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, 2 (passed 1790). Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977). South Carolina: Public Laws of the State of South Carolina, p. 49 (1790). At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, 6, p. 127 (1821) (passed 1776).
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).
Below are some of the early Statutes Banning Sodomy:
That the detestable and abominable vice of buggery [sodomy] . . . shall be from henceforth adjudged felony . . . and that every person being thereof convicted by verdict, confession, or outlawry [unlawful flight to avoid prosecution], shall be hanged by the neck until he or she shall be dead. NEW YORK
That if any man shall lie with mankind as he lieth with womankind, both of them have committed abomination; they both shall be put to death. CONNECTICUT
Sodomy . . . shall be punished by imprisonment at hard labour in the penitentiary during the natural life or lives of the person or persons convicted of th[is] detestable crime. GEORGIA
That if any man shall commit the crime against nature with a man or male child . . . every such offender, being duly convicted thereof in the Supreme Judicial Court, shall be punished by solitary imprisonment for such term not exceeding one year and by confinement afterwards to hard labor for such term not exceeding ten years. MAINE
That if any person or persons shall commit sodomy . . . he or they so offending or committing any of the said crimes within this province, their counsellors, aiders, comforters, and abettors, being convicted thereof as above said, shall suffer as felons. [And] shall forfeit to the Commonwealth all and singular the lands and tenements, goods and chattels, whereof he or she was seized or possessed at the time . . . at the discretion of the court passing the sentence, not exceeding ten years, in the public gaol or house of correction of the county or city in which the offence shall have been committed and be kept at such labor. PENNSYLVANIA
[T]he detestable and abominable vice of buggery [sodomy] . . . be from henceforth adjudged felony . . . and that the offenders being hereof convicted by verdict, confession, or outlawry [unlawful flight to avoid prosecution], shall suffer such pains of death and losses and penalties of their goods. SOUTH CAROLINA
That if any man lieth with mankind as he lieth with a woman, they both shall suffer death. VERMONT
"Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm for the detestable and abominable Vice of Buggery committed with mankind of beast: It may therefore please the King's Highness with the assent of the Lords Spiritual and the Commons of this present parliament assembled, that it may be enacted by the authority of the same, that the same offence be from henceforth ajudged Felony and that such an order and form of process therein to be used against the offenders as in cases of felony at the Common law. And that the offenders being herof convict by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realme. And that no person offending in any such offence shall be admitted to his Clergy, And that Justices of the Peace shall have power and authority within the limits of their commissions and Jurisdictions to hear and determine the said offence, as they do in the cases of other felonies. This Act to endure till the last day. of the next Parliament" Buggery act of England 1553
Britton, i.10: "Let enquiry also be made of those who feloniously in time of peace have burnt other's corn or houses, and those who are attainted thereof shall be burnt, so that they might be punished in like manner as they have offended. The same sentence shall be passed upon sorcerers, sorceresses, renegades, sodomists, and heretics publicly convicted" English law forbidding sodomy dating back to 1300AD.
These quotes are just a few of the many that are avaliable.
Now, why did these laws exist? Libertarians and other assorted liberal folk don't like any laws that protect society and prevent the moral decline of a nation's people. They are immoral people and they want to be free to be immoral.
What did our founders say about this? Way back in 1815, The Pennsylvania Supreme Court decided an important case, here are excerpts from that case:
This court is...invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society... Whatever tends to the destruction of morality, in general, may be punishable criminally. Crimes are public offenses, not because they are perpetrated publically, but because their effect is to injure the public. Buglary, though done in secret, is a public offense; and secretly destroying fences is indictable.
Hence it follows, that an offense may be punishable, if in it's nature and by it's example, it tends to the corruption or morals; although it not be committed in public.
Although every immoral act, such as lying, ect... is not indictable, yet where the offense charged is destructive of morality in general...it is punishable at common law. The destruction of morality renders the power of government invalid...
No man is permitted to corrupt the morals of the people, secret poision cannot be thus desseminated.
Keep in mind now that the judges on this court had lived through the revolution and fought for the nation's survival. This was just a few years after the Constitution was Adopted. SO the libertarians who are going to scream that these judges didn't know what they were talking about are way off base. (They want you to think that your basic pot head knows more about the Constitution than the men who were actually there at the nation's founding.)
Now why did the court take that position? Simple, a Nation without morality cannot function. A nation that loses site on principle is doomed to go the way of the Roman Empire. Every single nation that has lost sight of basic moral principles has fallen. Homosexuality is anathema to morality. The two cannot exist together. Homosexuality is unnatural (no matter how much liberals will try to convince you otherwise.) And it is immoral. It cannot be tolerated period.
Homosexuality is immoral, Indecent, abhorant, and repugnant. It is a stain on our society, and must never ever be tolerated.
and a lot of other things... burning at the stake for setting a neighbor's field afire? cool!
dating back to 1300AD.
So if you want to have sex with a goat/kid/deadbody it is okay, as long as it is in your home?
How about 20 wives?
How about a slave?
Murder?
Rape?
Libertarian scum, and I do mean SCUM, are just as bad as democrats and greens. Libertarians want license to do what ever perversion that they think is right in there own eyes. They come on a CONSERVATIVE Message board when there message has much more in common with the SCUM at DU.
A nation cannot function without morality. Because man is a depraved creature, he cannot be permitted to define morality. Morality can only be Defined by Almighty God.
"We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams
"The only foundation of a free Constitution is pure Virtue, and if this cannot be inspired into our People in a greater Measure, than they have it now, they may change their Rulers and the forms of Government, but they will not obtain a lasting liberty." John Adams
"Statesmen, my dear Sir, may plan and speculate for liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand. John Adams
"Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being....And, consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker's will...this will of his Maker is called the law of nature. These laws laid down by God are the eternal immutable laws of good and evil...This law of nature dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this... Sir William Blackstone
I will take Adams and Blackstone over any pot smoke 1960's radical libertarian hippie anyday.
At the Founding of our nation, EVERY STATE, EVERY SINGLE STATE Banned Sodomy. MOST States Punished it as a CAPITAL CRIME, those that didn't punished it with lenghty prison sentences.
In fact in 1868 Every State had a law banning Sodomy. It wasn't until the hippies of the 1960's and their Dope/Rock/Sex ideology that a movement began to remove sodomy laws and embrace all sorts of sexual perversion.
What you have in essence, is libertarians spitting on the founders and embracing pot smoking, draft dodging, sexual perverts as their leaders.
If the Supreme Court Overturns the sodomy laws, it will start the long slide down the slippery slope that cannot be stopped. Soon there will be libertarians/sodomites/democrats claiming a right to sex with kids, multiple wives, sex with goats, sex with dead people ect... Libertarians right now say "NO! I would never endorse those sorts of things!" However with no objective morality, their moral fabric will soon be chipped away to accepting those things as normal, because it "feels good".
There is already a new movement to lower the age of consent and embrace and allow sex with minors.
Thomas Jefferson said: "Indeed I tremble for my country when I reflect that God is just and His justice cannot sleep forever."
If These Libertarian scum get their way, I will pray for God's Justice to come swiftly.
Whose god, Allah? You sound just like the Taliban.
Marriage (20 wives) is something for which the state has interest. So is slavery and murder. The government needs to keep out of our personal lives. I don't understand why freedom-loving Americans can't see this.
I don't believe in your God, and he has no authority over my life. If you try to force me to worship him, or live by his book, you will fail.
Remember, we came to this country to avoid religious persecution. Scalia is wrong, and I hope his opinion is overruled by the rest of the court.
Your point here misses the real point, which is whether the Constitution PROHIBITS the passage of laws regulating sodomy. By your own logic, the normal legislative process, over time and controlled ultimately by the electorate as a whole, seeks to find that balancing point between individual rights and community interests. All Scalia is saying is that the Constitution does not provide a basis for the USSC to REMOVE that decision from the legislative arena as regards sodomy rights.
But those laws by definition would imply enforcement. Enforcement would require the government to be allowed to monitor. Monitoring is certainly a privacy issue.
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965) has some very useful linkages to multiple Constitutional amendments regarding privacy. How will the state know, unless it is free to invade one's home?
Note: I would argue that the state has the right to discuss public sexual behavior, and any private sexual behavior with minors. I'd be interested learning how to do that based on the Constitution, but I think it's easy: minors have the right to pursue life, liberty, and happiness and sexual abuse would clearly interfere.
Thanks. And I will take a step toward the conservative position here: I am happy to stand with Christians against oppression, for liberties, and in the warmth of their fraternity, especially at a time like this.
There are a number of issues I've set aside in the past month because I believe the Christian right is not the enemy of freedom in this country, by any means! Liberty, including strong values for separation of church and state, wouldn't exist in this world today (I'm convinced) without the bravery of the Christians who founded this country.
No, because going to church is an exercise of religion. No one is obligated to perform any religious ritual, but everyone is obligated to adhere to religious morality regardless of their personal beliefs.
In the past 50 years I have seen a remarkable change in attitude toward the Homosexual. Today it is common practice and accepted by a majority of people both as a fundamental privacy issue and an accepted life style. I often wonder if, in say another 50 years, we will as a society accept bestiality as an accepted lifestyle. After all it will be behind closed doors in the privacy of ones own home or barn as the case may be. If you think this to be far-fetched you haven't been following PETA to closely.
I guess Saddam really is dead if they are hiring for the position of Caliph of Bagdad. Tune up your resume.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.