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.
Strawman. Many states have done away with this nonsense legislatively. I saw one poster opine that it would be overturned, I have seen no one speak in favor of it being overturned. If I missed one, please cite the posts.
Lots of name calling from the libertarians here - calling people Nazis, comparing people to the Taliban and Hillary.
Your buddy Bosco came onto the thread doing it, I fired back. I'll do it everytime, it shows him up for what he is.
And btw, no one in their right mind takes you clowns seriously.
Not so fast. No such thing would happen. No one will eat there, so no one is going to get sick. Furthermore, this restaurant won't be around long. And where would this person get his restaurant supplies? I'd imagine few if any would sell napkins or utensils to this restaurant.
No government whatsoever is needed to stop such a restaurant. I'm sure it just irks you that the restaurant would fail and close without government intervention, but its true.
Then it should not come as a surprise to discover they are really just the shocktroops or useful idiots for the Democratic Socialists.
Your problem here is the government. Public schools are troubled but would not be as big a concern if they were under strict local rule and not under centralized control. Big Government dictates are what you should decry not sodomy laws. Furthermore if government recognition of marriage were not an issue - meaning if marriage was a private legal contract there would not be public fights for official recognition by gays. Without this fight and sodomy laws there would be no need to hear of them.
Amalgamated Seminal Search Homeland Official Legal Enforcement.
Are aspects of the body ordered toward specific ends?
Is the hearing system ordered toward hearing? Is the reproductive system ordered toward reproduction?
If not, then is the act of attempting to reproduce with one's ears equivalent to attempting to reproduce with one's reproductive system? Would the former activity be disordered and unnatural?
And privately too with your beloved laws.
Maybe you should ask your buddies here how many of them have engaged in sodomy.
Most of them are admitted druggies, maybe they have other problems as well.
The only thing you have shown is that you are a name caller.
And btw, no one in their right mind takes you clowns seriously.
That was original coming from someone who calles his opponents Nazis.
I think you'll find Nessie in Loch Ness before you'll find one of those... It's probably the case that male homosexuals are more promiscuous than heterosexuals, and I would submit that this is simply because both people invloved are *men*, who are genetically predispositioned toward having as much sex as they can get, whereas women have an instinct to hold out for the best mate. (Think about it, you very rarely see reports of lesbians having sex in public.) But to claim that no homosexuals are in monogamous relationships is preposterous.
For instance, it would be wrong to tar Saddam Hussein by association with Adolf Hitler because they both wear silly little mustaches, but it would be perfectly reasonable to do so because they are both murderous dictators.
I call that the reductio ad nauseum argument...
I would normally see no problems with these types of laws, but for the fact that we have enough government intrusion as it is. The only way you can consistently enforce this law is to monitor people in their homes and that ain't going to happen. Look at how this case has played out and look how they were found.
They want the same thing for dope.
Strawman. Many states have done away with this nonsense legislatively. I saw one poster opine that it would be overturned, I have seen no one speak in favor of it being overturned. If I missed one, please cite the posts.
I noticed you didn't answer this part.
No, again this is prudence. You cannot go into everyone's bedroom and police them. But you can send a message as to society's disapproval of homosexual behavior by keeping a law like this on the books. I don't the government snooping on me either.
What you libertarians will never understand is that if this kind of perverted society where people are performing cunnilingus on girls they met five minutes ago continues, the moral structure of this nation suffers. Self-policing obviates government policing. No public virtue, no liberty.
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