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.
For instance, the people in posts of government authority agreed that they could not simply pander to the will of the mob, but rather must excersize only those powers explicitly available to them within the bounds of the protections of personal privacy and liberty set forth in the law.
There, was that so difficult to comprehend?
I missed that part. How do you justify that idea?
You may have identified why it will be struck down, but not whether or not it should be struck down.
I have no problem with that kind of duality. Can you marry your dog? Why not? It's your dog! "It's not fair that people get to only marry the opposite sex, but I can't marry Sparky..."
Sure I would. Humor me with an example, if you could.
Libertarians believe people are naturally good
No I don't. I believe people are a mixed sort, some good, some bad.
"Why shouldn't everyone have a right to have a nuclear bomb?
Oh, that old canard. It's been dispelled on this forum ad infinitum, but I'll have another go at it.
You have a right to own a weapon, but not to initiate force with it. For example, you can own a gun, but you can't point it at anyone. Even if you don't pull the trigger, by pointing it you have threatened initial force against another , and that is a violation of rights.
A nuke, by its very existence is akin to a pointed gun. Everyone within its range is subject to the threatened initial force similar to a pointed gun. As such, one has no right to a nuke.
Next.....?
Nice try, but what I said was control yourself or be controlled. It's that simple. Those of you that don't want to control your sexual urges are begging for government help.
For instance, Florida sodomy laws make cunnilungus illegal for both men and women. Therefore, no 14th Amendment violation.
In contrast, Texas sodomy laws make cunnilingus illegal for women only.
Florida sodomy law is constitutional, Texas sodomy law is not.
Nonsense. If an act is opposed to the natural order of the universe, then attempts to perform that act will simply fail. For instance, it is contrary to the natural order of the universe for me to jump out the window and fly like Superman, and if I attempt it I will instead fall to the ground.
That's true, but what does this statement have to do with the discussion?
The old same sex marriage argument. Liberal and Libertarians really are in bed together.
That's a key idea behind the US Constitution. All states would decide those things for themselves. People would vote with their feet according to the results obtained.
But that's not the case anymore. States and communities can no longer decide those matters for themselves. A central authority has usurped local control by force. Which do you prefer, the central model or the local model?
BWAAAHAHAHAHAHAHAHA!!!
Libertarians believe people are naturally good
Nonsense. Statists believe that people are naturally good (or, to return to a point you never did get around to answering, that the "people" in government positions are really space aliens or something). Libertarians believe that people cannot be trusted with anything beyond a bare minimum of political power.
That's your opinion, not the opinion of the Supreme Court.
Furthermore, I would suggest to you that many Christians consider cunnilingus between married people "unnatural."
Therefore, your opinion that cunnilingus is not unnatural under certain conditions differ from the Christian position through centuries.
Therefore, a law against the behavior of buying junk food could be enacted, making illegal for Hispanics to buy junk food.
Of course not. Latinos cannot help that they were born Latinos. Homosexuals can help that they engage in homosexual behavior. The law is about behavior.
The first part is nonsense, "common good" is a matter of opinion. The second part is none of your business.
All sin does. And law should be ordered to promoting the common good.
I think the "common good" would be served if you were not allowed to speak. See how that works?
I have never attempted to justify so called evil behavior. Straw man.
However, such a law would make it possible to "clean out" public bathrooms, etc.
There are laws against certain sexual behavior public, homo and hetro. No sodomy laws are needed for this.
Any of various forms of sexual intercourse held to be unnatural or abnormal, especially anal intercourse or bestiality.
Define abnormal so everyone agrees about what it is. Your interpretation is different than mine.
When the act is "finished" orally, yes, it represents sodomy. Such an act is obviously opposed to the natural order.
So you are in favor of laws prohibition oral sex between man and wife. Good luck.
So God requires that we don't punish evil acts?
Bizzare leap. Strawman. Define evil.
To which you replied:
When the act is "finished" orally, yes, it represents sodomy. Such an act is obviously opposed to the natural order.
But when the act is "started" orally, is it then natural? This would seem to me to be splitting hairs, as it were. Either it is natural or it is not. If the act is unnatural, no rearrangement will change it. What does it matter in what order natural acts are completed? What business is it of yours if my wife ends up on top? Where is the compelling state interest to keep her below me in my own home?
Before long, these scholastical distinctions are going to end in the conclusion that the use of clockwise tongue strokes is acceptable, but that the use of anticlockwise tongue strokes is unnatural (or vice versa in the Southern Hemisphere).
George, how many heterosexuals engage in sex acts in public places? Not many. Homos do it all the time. Prudentially, we can say that homosexual behavior leads to public homosexual behavior, which leads to disease etc. Thus it can be regulated.
You spend a lot of time thinking about what people do in bed. HMMMMM,,,
That's true, but what does this statement have to do with the discussion?
Since you have repeatedly insisted that the only grounds upon which government power is to be limited are grounds of political prudentiality, I should think that the relevance of the statement is painfully obvious.
ROTFLMAO, you need to get out of the house more. Just about the only sex act I haven't seen taking place in public is homosexual sex.
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