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 understood your pictures.
The only legal system that attempts "discouraging covetousness" is communism. In a free society, people are expected to want to earn goodies like the ones they see their neighbors enjoying.
Well said. And as always, the evil is not contained to those who supposedly consented to undergo it, but invariably splashes upon the innocent as well. Every evil deed has evil repercussions, and not only the guilty suffer. That is why there is no such thing as a 'harmless immorality.'
It's not only nice, it's simple. My pursuit of happiness violates yours when something I do directly stops you from pursuing yours. In other words, if your idea of happiness is enslaving me or preventing me from doing something which doesn't concern you, you have violated my rights. Your question is childish.
Also I didn't see you address the first three.
My experience with libertarian apologists is that they appoint themselves judges as to whether a person's rights have been violated. Surely it is unjust to let the violator determine if he has violated rights.
My experience with authoritarian aplogists is that they appoint themselves judges of what rights are, or they have absolutely no idea, like you. You ask questions, will not accept the answers, but never offer your view of what rights are and where they come from. Take a crack at it.
If people want to communicate the plague to each other through sexual misconduct, that's ok as long as it doesn't violate someone's rights? Willful transmission of a disease IS a violation of someone's rights!
This is a non sequiter. Willful transmission of disease is fraud and possibly assault, it has nothingwhatsoever to do with the question you asked.
Thou shalt not kill:
You need to revisit the commandments, it means "thou shalt not murder".
Spreading AIDS is killing.
So is driving a car when involved in an fatal accident. And stay in your own bed and you won't get stds. Your comment also applies to all disease, and stds are most common among hetrosexuals.
I'm glad you acknowledged a Creator.
Oh goody, you are glad. That makes me happy.
The Creator forbids homosexual sex.
Yep, he will deal with it, and all other sin as well. It has nothing to do with rights. He didn't tell you to punish people for sinning.
So.. You acknowledge the Creator, you acknowledge the Decalogue as a source of human rights,
Yes,,so?
but you discount the Creator's prohibition of homosexual sex?
No, you bear false witness on that. Hit your knees.
Homosexuality isn't in the ten commandments BTW.
, only that 3 of them needed to be answered.
Nice that you have a pass/fail level all of your own. LOL
Incorrect as usual. (legislation)
Really? Please cite the legislation that authorized the PROCLAMATION by the President.
and the Civil War.
So much for legislation.
I have tried being polite to you,
LOL
but you are being a moron
The namecalling which isn't name calling when you do, but only if someone else does it, LOL, good stuff.
(and that is not name calling, that is stating a fact).
ROTFLMAO
The Proclamation was legislation, and became amendment form. BTW, LOL, ROFLMAO, etc are not a substitute for debate. And when I said you are are moron, I stated a fact based on your rude and uninformed posts. When you compared people to Nazis and the Taliban for disagreeing with you, you were name calling (and very un-original and childish name calling at that).
LOL! ROFLMAO! (Libertarian debate rebuttal).
Handicapped people do not willfully engage in anti-social behavior. Handicapped people do not choose to be handicapped. Homosexuals choose their lifestyle. On the contrary, we should do everything to care for those whom circumstance has dealt a "bad card". However, homosexual men, who have between 500-1,000 sex partners in their lives, are not 'victims of circumstance'.
You are a moron, nah, nah, nah, nah, nah, nah. LOL
Great facts.
Your boy Bosco started the name calling, we can go back and show the posts, want to? I responded only as a parody of his posts. You just don't get it do you?
I would disagree with the 'invariably'.
My question isn't childish, it's one of the reasons libertarians can't scrape together half a percent of the vote.
Note "the pursuit" of happiness has mutated to "idea" of happiness. And who determines whether an issue does or does not "concern you?"
The entire theoretical utopia of libertarianism flies apart once reality sets in.
You ask questions, will not accept the answers, but never offer your view of what rights are and where they come from. Take a crack at it.
A reasonable person does not change his views unless he has good reason to change. The libertarian utopia has rarely attracted anyone not preoccupied with self. If you wish to convince others that you have a reasonable position you must present your best case. If your best is not convincing, ad hominem attacks only weakens your case.
Of course it childish, and I answered it. And changing the subject to some political party which is of no concern to me is just an attempt to get off the rights subject. You libertarian hater guys are one trick ponies. No ideas, just "I hate libertarians".
And who determines whether an issue does or does not "concern you?"
Another childish question. You think what I do is your business, of some concern to you. Two people having sex in their homes is none of your business. A person taking an unapproved substance on private property is none of your business.
The entire theoretical utopia of libertarianism flies apart once reality sets in.
Utopia is not an option. Tyranny is reality.
A reasonable person does not change his views unless he has good reason to change.
Non responseive "answer" to the question of your view of where rights come from and what they are.
I used an ad hominem on you? please cite it.
Of course you can guarantee that no disease will be transmitted, no injuries will be sustained, no public money will be involved and no predatory thoughts will result. If it's none of my business, why are you making it your business?
I used an ad hominem on you? please cite it.
Apparently you do not read my posts very carefully. I did not say that you made an ad hominem attack. But since you asked..
Typical, bear false witness and then slink away like a coward. Despicable.
There are more. Shall I list them?
Time after time, the God of the Bible commanded his followers to perform acts that were morally abhorrent. If that is your standard, then you are immoral indeed...
Nothing new here, especially considering that they're "kissing cousins."
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