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.
I'm afraid that you're wrong about heteroes. The difference isn't as large as you might expect.
Anyway I remember during his last run for president he was asked about sodomy laws and he was against them, repeat - against. He explained that they are practically unenforceable and when they are it is in an arbitrary manner. Furthermore desire to enforce them invites intrusive government which he is against. In sum he said that unenforceable laws on the books and arbitrary and uneven application undermines people's respect for all law and government institutions and therefore undermined a cohesive society. What do you think about that?
First: flawed view of human nature. Libertarians believe people are naturally good, i.e.
When we look back through history at the root cause of harm inflicted by people against people we find government and religion. In other words, it's not people that are innately bad, it is certain institutions that encourage and facilitate destructive behavior. If people were fundamentally destructive man would have already annihilated the species. Outside of institutionally facilitated destructions the most common destructions are crimes of passion.
Initiating force, fraud or threat of force against any person is a crime that violates the person's inalienable rights no matter who initiates the force -- be it a common petty criminal or politicians and bureaucrats. Wide-scope accounting shows that it is the initiation of force, fraud and threat of force wielded by politicians, bureaucrats and their minions that cause far more harm and suffering to innocent people -- people minding their own business that have harmed no one -- and their property than all other criminals combined.
That's a few thousand criminals in government causing much much more harm and suffering than a million violent criminals on the street. And to think the criminals in government garner respect and prestige. Even in the face of voting for the lesser of two evils always begets evil they garner respect and prestige. They're the champions of false advertising.
But that's par for the "course" and to be expected when the method politicians and bureaucrats use to fund their paychecks and government is threat of force in the first place. So right off the bat politicians and bureaucrats are in bed with creating injustice.
Income taxes are collected by strong arm tactics: "if you don't pay your taxes you'll be fined and go to jail". Conversely, a consumption tax such as the National Retail Sales Tax (NRST) is a voluntary tax. Wherein if you don't want to pay the tax don't buy the item.
First identify who the wealth perpetuator's are --
Praise them and draw them closer.
Then identify who the parasite criminals are --
Repeal them out of existence.
Compared to the massive fraud implemented by politicians and bureaucrats, fraud in the business community barley registers on the "Richter" scale.
Who are the wealth providers and who are the parasites? Who offers competitive products and services in a free market? Who provides jobs, necessities and luxuries that sustain and enhance human life? Who forces people to buy their services or else go to jail? Who initiates force, threat of force and fraud?
Politicians and bureaucrats are far more destructive and harmful to innocent people than all petty criminals combined. And for sure, business and science have done more to benefit people than politicians and bureaucrats. Those two -- government and business/science -- for the most part at this point in time are opposing forces.
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BTW, I'm not a Libertarian.
I take it you stayed home and studied during Spring Break.
Libertarian Tourette's Syndrome.
You also don't seem to grasp that both being born Latino and being born a woman is not a choice.
Therefore, it is unconstitutional to make a law prohibiting woman from performing cunnilingus while allowing men to do it.
It is unconstitutional to make a law prohibiting Latinos from eating junk food while allowing Caucasians to do it.
Yes, but homosexual acts don't represent "liberty" or "the pursuit of happiness" anymore than does robbery, at least not as our Founders understood these ideas.
For rights to be unalienable, they must come from nature's God. Logically, God cannot uphold a right to sodomy because sodomy is essentially unnatural and a contradiction of God's natural order, and because sodomy is forbidden in divine revelation (Sodom and Gomorrah, 1 Corinthians 6:9).
What about the homos who never engage in public sex acts? Are they to be held accountable for the behaviors of those who do?
LOL,, man you are on a roll! STDs are endemic in all promiscious sexual activity, homo or hetro. Syphillis, gonorrhea, chymadia, herepes,,all homosexual diseases? LOL
As are liver transplants and human flight.
Are you against those as well?
I know this is off topic, but I went to South Beach last weekend, and the amount of public sex among the spring breakers was enormous.
I saw girls being licked "down there" by drunk guys, among the tamest scenes.
So the Supreme Court should void state laws and order same sex marriages to be legalized? Libertarians and leftists share a tight embrace.
Taliban Tourette's Syndrome.
That's because Mr. Keyes has drunk too deeply into the libertarian well. That's the problem with modern conservatism. It's like the argument that liberal Catholics that they are "personally opposed to abortion, but won't impose their beliefs on others". Either you believe that there are standards of morality that apply to everyone, everywhere, or you are a moral relativist.
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