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.
More false witness, Hit your knees moral man.
Because if there were sufficient demand for human sandwiches, there would be a successful black market in them. There isn't.
You guys believe that people are naturally good.
I already told you I don't believe that. Some people are good, some are bad. Because of bad people (those who initiate force and fraud) governments are created for the purpose of upholding individual rights. Also, bad people are 'darwinized' out of existence by their partaking in activities harmful to themselves, and then not being saved from the consequences of their actions by a socialist society.
Did you see that story from a month or so back
Yes.
For seven hundred years, millions of people watched other people get impaled, burned, chopped to pieces, mauled by lions, etc. for their own viewing pleasure.
Initiation of force. Libertarians would outlaw the Roman coluseum to unwilling participants. And somehow, I doubt there would be sufficient volunteers for it to continue otherwise.
Seven hundred years that went on until the Christians shut it down.
And after Christianity became the mainstream Roman religion, Roman Christians persecuted those who would not convert. Anyone can initiate force and violate rights, even Christians. All it takes is acceptance that the majority or the powerful can rightfully initiate force, and the disrespect for the rights of the individual to be left alone.
Philosophies are not capable of moral judgements, people are. Philosophies ARE moral judgements in some cases.
For instance, the First Commandment must be rejected as a basis of law in order to preserve freedom of conscience. However, the prohibitions on murder, theft, and false witness (unless your name is "Bill Clinton", it seems) are simple reiterations of principles required to protect personal and property rights.
They prettify it by arguing that they are not really seeking to defend sodomy in particular, but to expand human freedom in general. But in the end, it really comes down to defending sodomy in particular.
You guys think that people are naturally bad? And that somehow they become good if they are elected?
Great stuff.
That is why no government may be permitted to wield the powers you would assign to it.
Talk about missing the point.
There is no black market for human food. Therefore, people have morally chosen for themselves to not partake in it, and government intervention is entirely unnecessary.. That is libertarian philospohy.
The first part is nonsense, "common good" is a matter of opinion.
The common good means the good of society. That much is unarguable. As an organizing principle of society, what is the alternative to pursuing the common good?
The second part is none of your business.
Normally yes, if the behavior is behind closed doors. But what if it's made public?
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?
No. You need to provide a reasonable explanation of your assertion proceeding from First Principles.
I have never attempted to justify so called evil behavior. Straw man.
As long as you don't assert a "right" to homosexual activity which is intrinsically evil, I can agree with you.
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.
What about the case in point?
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.
That's the dictionary definition. I agree with you regarding "abnormality." Unnatural acts can be determined objectively, however.
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.
Such a law may be impossible to pass. That wouldn't make such a law wrong.
So God requires that we don't punish evil acts?
Bizzare leap. Strawman. Define evil.
You told me that God will pass his judgement at the end. My question to you is, will God look favorably upon me for being indifferent to the criminalization of homosexual acts?
Check your history...there were plenty of free men who competed in the Coliseum...
Here's another example. Recently, the SCOTUS ratified (in a mind-bogglingly dumb decision) virtual child pornography, on the rationale that no child is hurt in the creation of this "product". Ok...so here's another one for you libertarians.
Lets say I make a 16' by 20' billboard of the most revolting (simulated/legal--and I could prove it) child pornography that you've ever seen and then put it up in my front yard right in front of your house. It's on my property, and I'm not hurting anyone, and no one was hurt in the making of said pornography. So, would you allow this?
No, no, no -- it really comes down to defending The Demon Weed With Roots In Hell[tm]. Please try to keep to the talking points, or Roscoe will have to scold you.
Circular illogic. Define it. This case is a perfect example. The good of society is either served or not depending on which side of this argument you are on.
Is there a black market for human organs? Yep. Would you allow this in libertarian 'world'?
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