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.
If you consider the systematic exterminatin of women and children (as ordered by God) to be morally perfect, then you prove my point quite admirably...
All activity that has the potential to transmit disease should be outlawed under this standard. Kissing, working, sneezing, hetrosexual sex, etc. Not to mention that you seem to think that these laws have guarenteed that no disease would be transmitted. Your disease theory has been shot down so many times on this thread it looks like the French airforce. Which of course doen't keep you from saying it over and over ad nausem.
no injuries will be sustained,
People might hurt themselves? Maybe they will hurt you while they are having sex in their house and you are in yours.
no public money will be involved
Another shot down idea. I will tell you one more time, the public money confiscation is a separate issue. If you want them to stop taking your wealth for other peoples use, see your elected officials.
and no predatory thoughts will result.
LOL,, the thought police have arrived!!! A law against oral sex will keep people from thinking predatory thoughts! LOL,,, this stuff is precious!
If it's none of my business, why are you making it your business?
Huh? I will mind mine, and you mind yours. It is my business to oppose these dopey laws and the theocrats and assorted other thugs who advocate them.
A word to the wise, you can cut your std risk down conciderably by not engaging in sex outside of marriage, and keep your wife away from it as well.
Good start. same as I said.
These rights are enumerated in His word.
Name a few of them like I did. Tell me specifically where to find your right to use force to impose what you think is his will while your at it.
All unnatural activity. Homosexual sex is unnatural. That's a fact. If evolution is true, it is unnatural. If creation is true it is prohibited and unnatural.
People might hurt themselves? Maybe they will hurt you while they are having sex in their house and you are in yours.
No, they hurt me by influencing and recruiting children, raising my insurance costs, and forcing their political agenda on society.
A law against oral sex will keep people from thinking predatory thoughts!
So you think sodomy is only oral sex? If you deny the link between homosexuality and child molestation, you really have your head in the sand.
So you now oppose the parts of the laws that are concerned with sex between men and women? Or you are in favor of laws regulating what husbands and wives can do to each other?
Homosexual sex is unnatural. That's a fact.
It's your opinion, but it's not fact. People are part of nature and they do it. I think it is wrong, like worshipping idols, but I don't advocate force be used to stop it. It doesn't violate my rights.
No, they hurt me by influencing and recruiting children,
So these laws have stopped the influence on your children? Maybe your children value others influences more than yours. Maybe you should teach your children not to ingage in sex with their own gender.
more than raising my insurance costs,
Asked and answered, many times, see your politicions. Do want laws prohibiting all behaviors that might cost insurance to be higher? Laws against smoking? Drinking? Kissing? Driving?
and forcing their political agenda on society.
Forcing theirs,, kinda like you forcing yours?
So you think sodomy is only oral sex?
It's one part, you support the laws in their entirety do you not? Do you think the laws will deny people the ability to think about things? If so, (preposterous notion) why haven't they worked so far?
Thought control is a good thing for you to advocate. It shows your crazy ideas for what they are.
If you deny the link between homosexuality and child molestation, you really have your head in the sand.
If you deny that child molestation happens hetrosexually, you have your head somehwere else.
It is clear to anyone reading this exchange that you have some extremely bizarre ideas of the world. You are obtuse as well.
Violent theocracy is practised in a lot of places, not here however. Try Iran or Afghanistan if you want to live like that.
End of inane exchange.
In other words, the fundamental principle never changes: humans are made in the image of God and are therefore precious. However, it is moral to take a life if another is seeking to break that law.
I hope that you can look at this objectively, and not insinuate that the God of the Bible is evil and immoral. For you to judge the Almighty, who created you and has given you life, is the height of folly.
In the example of the conquest of Canaan, God was trying to save the lives and the souls of His people for the future. God was seeking to punish a wholly evil nation. God owns us all, and therefore has the right to do things that you and I don't.
I am looking at it objectively, and ask you to do the same. If, according to God, it is sometimes moral to murder a baby (the worst thing you can do to the child), then it also may sometimes be moral to torture or sexually molest the baby, as well as a whole host of other things.
Thus, if it is sometimes moral to murder a baby (which it is, according to the God of the Bible), then moral absolutes are out the window, especially in regards to abortion, etc. There is simply no way out of the dilemma, using the standard you have chosen...
Of course he is accountable--after all, we're talking moral absolutes here. You're claiming that God is the source of moral absolutes, yet has the right to be frivolous and change his mind about such "absolutes" according to his every whim. THus, you've certainly not proven that God is the source of such 'absolutes"--you haven't even come close...
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