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.
Interesting moral statement.
1)What are the rights of others?
2)How does one determine if the rights of others have been violated?
3)Is paying for the medical expenses of another person's promiscutity a violation of my rights?
4)What is the basis for any human rights at all?
Without answers to at least 3 of the 4 questions, your statement is meaningless.
This is why libertarians will never get elected to any major office. If you'll fess up to being ok with this, then I can't argue you out of your libertarianism. But I am conforted by the fact that you guys will never be in power.
Right now there is a black market in human organs because government dictates who gets what organs, regardless of what the donor wishes.
Willing donors could sell (or bequeath) their organs to whoever they like. Since it would be illegal to initiate force or fraud, organs could not legally be stolen from the unwilling.
There would be an open market for donor organs, and the black market for donor organs would disappear. There would still be a black market for stolen organs, but it would be illegal.
The title of this thread is "Libertarians Join Liberals in Challenging Sodomy Law". I stated "What I find funny is that the libertarians are in favor of the law being overturned by judicial fiat, with no legislative action. It seems as far as social issues go, the libertarians favor judicial activism as much as liberals do." I didn't make a charge, I stated a fact based on the title of this thread and the people who agree with it.
You cannot. Because you made it up, as usual.
Nope, the title of the thread backs me up.
Why would I say that?
Because you took such exception to my statement, I think you should come out and state what your position is.
I don't care one way or the other.
Hmmmm.... Your posts indicate otherwise, but if you say so I will take you word for it.
It has never been overturned judicially that I'm aware of, but I think it has been overturned legislatively many times.
You act like overturning a bad law is something your band of merry men thinks is bad, is that so?
Yes - if said law was constitutional for most of our history, overturing it in court IS a bad thing. That is what legislatures and amendments are for. Letting courts amend our constitution on their own makes it eventually meaningless.
The law would be wrong regardless of it's "passability".
So God requires that we don't punish evil acts?
I never said that, strawman. Turn it around, Does he require us to punish them? Which ones?
He will deal with evil, we must deal with interactions among men in this realm.
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?
Indifferent? The better question is, will you be looked upon favorably for using violence to enforce what you perceive to be his will?
I can't seem to find where Christ instructed us to enforce his will by violence or threat thereof. In fact, in one instance, he told us to bug off and he would handle it.
I am opposed to blood sports that are to the death, but in principle am not opposed to boxing as a sport, or other sports that are dangerous and potentially deadly. I am not as opposed to cock or dog fights, because chickens and dogs mere are animals not men. But we are not talking about animals, we are speaking of people. People who willingly engate in riskly behavior may be seeking thrills, but people who seek death are not well in the head. Slavery has been abolished at great cost, and I do not believe that it should be made lawful even at the agreement of the parties involved. Again, someone who gives his free will away in perpituity is not well in the head. This is not to say that I am against maids and the like, or even that I am against indentured servitude. Were it not for indentured servitude I would not be alive here today, because my ancestors came across the atlantic as indentured servants. The crucial difference between indentured servitude and slavery is that there can be no fulfillment of slavery. Working off one's passage to the new world was not slavery.
A man may not give these few gifts away, and I believe that we the people through the government have a certian interest that others do not give themselves away as slaves or cattle. However, that still great concern of government to prevent these things has no bearing whatsoever on the love life of my wife and I in the privacy of our own homes. We have the right to be secure in our places and persons.
Rational observations of their behavior can be used to impartially identify good and evil individuals.
Libertarians favor the courts checking the unbridled power of legislatures enacting un-Constitutional measures, i.e. removing laws conflicting with the Constitution.
Liberals favor the courts enhancing laws, increasing the power of government over the people, Constitutionally or not.
Naw, no difference - only that they're exact opposites !
LOL, nice try at a dodge. Slavery was constitutional for "most of our history" when it was overturned. This not-so clever dodge lets you advocate overturning some and leaving others, depending on your personal preference. Roe springs to mind.
Letting courts amend our constitution on their own makes it eventually meaningless.
They shouldn't amend it, they judge cases brought to them. They overturned at least one sodomy law according to the story.
I understand that most people are scared of freedom, and would rather take the easy way out. They don't want to take responsibility for themselves, they don't want to solve their own problems. For many, giving away their rights is an acceptable bargain for being taken care of. That's why socialism and collectivism are so popular, even if people are ashamed to admit that's what they prefer.
That's fine. I've accepted and acknowledge that. But you do what you can. One day I hope there is some free society on Earth. If there is, I'll go there.
They certainly seem to be.
Is the hearing system ordered toward hearing? Is the reproductive system ordered toward reproduction?
Yes and yes.
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?
No and yes.
Disordered, unnatural, yes. Should it be illegal, no. NO ONE'S RIGHTS ARE BEING VIOLATED.
Nonsense, I do not find it difficult at all.
Libertarian philosophy concerns itself with how men govern themselves and the proper role of government in a free society. It defends rights.
It leaves moral judgements to the individual and God. And that is what drives authoritarians crazy.
Which has nothing to do with judicially legislating sodomy "rights".
Please note I wasn't "OK" with it. I didn't like it, and I would work towards getting your sign removed. The only difference is the method I would use.
You would sacrifice your own property rights so government would take care of your problem. I would take responsibility for myself. I agree I won't get elected that way, people prefer to be pets.
It isn't a statement about morals.
1)What are the rights of others?
Life, liberty , property, the pursuit of happiness among them if you need a list. Anything that does not violate others rights.
2)How does one determine if the rights of others have been violated?
Life, liberty , property, the pursuit of happiness among them if you need a list.
3)Is paying for the medical expenses of another person's promiscutity a violation of my rights?
Yes. Paying for anyone's expenses against your will is theft. It is not the promiscutity that violates your rights, it's the theft of your money.
4)What is the basis for any human rights at all?
They are granted by the creator. Some can be found in the ten commandments if you look.
Without answers to at least 3 of the 4 questions, your statement is meaningless.
Curious standard. And it might be meaningless to you, which of course is no standard of meaning. I'm also curious which one you thoght couldn't be answered.
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