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.
Sure! Just kidding. No, but our statutes and schools should reflect the belief that children are accountable to their parents, who have the right to direct their lives.
Oh yeah? I, freeeee, am hereby inspired by God. And I declare up to be down and black to be white. This is the mind of God himself. How do you know? Well, I told you so. Stay tuned for more pronouncements from God himself, spoken through my mouth of course.
See how it works? (BTW, before you get all upset about blasphamy, I'm just kidding to make a point)
Because well over 75% of your countrymen and women, and probably yourself, have engaged in sodomy.
Sorry, my copy of the Bible is at home. But I know the story quite well. Lot is described as a prophet, right? I would assume prophets were people God approved of? And God saved Lot from the destruction of Sodom, right? And God did not reprove Lot for offering to allow his daughters to be raped and cruelly used by the men of Sodom, right?
C'mon. The plain reading of what happened is VERY clear. And to me, OBVIOUSLY immoral. Or do you think whoring your daughters to save your hiney is a moral act?
That's pretty funny. Do you have a stand-up act on weekends?
Private people should be able to freely associate on any basis they wish. This means discrimination laws should be repealed, except for government. Government should not be allowed to discriminate.
In many schools it is taught as normative.
My child will never attend one, and every parent should do the same, in my opinion.
In some countries it is illegal to speak against it.
Those countries are run by idiots who are practicing social engineering - in an un-Constitutional way.
1. Lot's daughters were never raped by the men of Sodom. He offered them and they refused, intent instead on sodomizing the angels of God that appeared at Lot's home.
2. I have found no verse in the Bible that states Lot was a prophet.
3. While it is true that God did not immediately wipe Lot from the face of the earth for his shameful act, remember that God is patient. He is long-suffering. I have sinned against Him countless times and He has not wiped me from the face of the earth just yet.
I believe that discrimination on the basis of color or race is wrong, and the South's institutional racism against blacks should have been dealt with by the government long before the 1960's. But as far as sexuality goes, we agree.
As for schools teaching it as normative and countries rndering speech against it legal, it simply proves the point that private behavior has public consequences. While you may disagree with the actions of these schools and governments, this is how the world works. It will eventually happen in America unless we seek to stop it now.
from a medical standpoint, the promisucous insertion of a penis into another person's rectum often causes capillary failure and blood transfer as the capillaries in the rectum are close to the surface.... in the vagina they are not.
HIV, among other horrors, is the welcomed guest!!
Those lawyers pushing "privacy" for their sexually deviant clients, where normal people must carry the financial burden, are duplicitous thieves....Morality and the related crimes against children aside.
Well, some people will put just about anything into their mouth.
Slaverly was overturned by the Emancipation Proclamation (legislation) and the Civil War. It was actually expanded by judicial fiat in the Dred Scott decision. So, wrong again, pal. I have tried being polite to you, but you are being a moron (and that is not name calling, that is stating a fact).
Just checking after the fact... are you familiar with Monty Python? I assumed you might be just because it was a big part of the culture at one time but depending on the generation one is from it might be meaningless. My remarks and pictures wouldn't make sense if one were not on the cutting edge 25 years ago.BTW I didn't take your remarks as personal I just couldn't pass up the chance for a "funny".
cordially,
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