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.
God says that sometimes it's wrong to murder a baby, but sometimes it's perfectly peachy. Ho hum...no absolutes there. You're arguing for moral relativism, plain and simple. If you don't know what moral relativism means, I suggest you look it up, so as to no longer argue in favor of what you're supposed to be arguing against...
I'm being unreasonable for arguing that absolutes are absolute? You think absolutes are relative and have the gall to call my reason?: According to your logic, I must be quite the paragon of reason, since I'm "unreasonable"!!
God is accountable to the laws of logic; if he claims to be morally absolute, then the must not be morally relative (which he is, based on the example I have demonstrated).
People are part of nature and they do it.
If people do it it's natural? Care to attempt to put that into a syllogism?
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.
You've got to get off of this myopic tricycle. If sombody in Siberia kills his kids it doesn't violate your rights either.
So these laws have stopped the influence on your children?
Laws against murder do not stop all murders. Should we dump them? A course in logic can help you with this.
If you deny that child molestation happens hetrosexually, you have your head somehwere else.
Homosexuals are far more likely to exhibit predatory behavior.
This from your home page: Protagoras- known as the "father of debate" because he taught that there were two sides to every question.
Change your ways or change your name.
Don't worry about getting that abortion you've been wanting--GOD MAY APPROVE OF IT!!!
Please don't make the mistake of assuming that the fetus inside you is innocent and deserving of life. Actually, the opposite MAY BE TRUE!!
Your fetus, like the children of Canaan, may be guilty---and deserve to DIE!!!!!!
After all, God says that it's sometimes okay to kill even a child that has ALREADY BEEN BORN! So you see, the murder of a mere fetus shouldn't bother you IN THE LEAST!!!
So, come see us at your neighborhood abortion mill, and remember: KILLING A CHILD CAN BE MORAL!!!!!!!! :)
Hard to read this whacky stuff, but I did.
HOMOSEXUAL sex is unnatural.
Off topic. The topic is sodomy LAWS, not sodomy.
The purpose of an anus is restrict or allow the passage of waste. You do understand that, don't you?
I understand that your head shouldn't be up there anymore than anything else. But hey, that way you can see your ideas.
You've got to get off of this myopic tricycle.
You have to get back on your meds. Your points are worse than myopic, they are goofy.
If sombody in Siberia kills his kids it doesn't violate your rights either.
Correct, they violate the rights of the kids. I'm sure they have ways of dealing with murder in Siberia.
Laws against murder do not stop all murders.
They stop some, sodomy laws don't stop any sodomy.
Should we dump them?
No, murder violates rights. Sodomy does not.
A course in logic can help you with this.
I have, you flunk on every level.
Homosexuals are far more likely to exhibit predatory behavior.
Nonsense, cite proof.
Change your ways or change your name.
Change your ways or change your name, Taliban man would be good.
Yes, I was being sarcastic, but I think you see my point. Relativism is relativism, be it from man or God, and the point I've focused on is certainly an instance of relativsm at its finest...
We're talking about killing children here. Are you saying that killing toddlers is sometimes morally justifiable?
What's that dogma based on? Where do rights come from?
Circular illogic. Define it.
Personal good can be defined in the Aristotelian sense as that which makes a person happy.
[Nicomachean Ethics, Book 1, JT] For us it is clear that, from what has been said already, that happiness is one of those things that are precious and perfect. This view seems to be confirmed by the fact that it is a first principle, since everything else that any of us do, we do for its sake; and we hold that the first principle and cause of what is good is precious and divine.This is the sense in which our Constitution refers to "Happiness." The common good then, would be that which maximizes happiness throughout society. The common good is more important than the personal good since the whole is greater and more perfect than its parts.
Aristotle said:
[Nicomachean Ethics, Book 8, TI, DR] All communities would seem to be parts of the political community. For people keep company for some advantage and to supply something contributing to their life. And it is for the sake of advantage that the political community too seems both to have come together originally and to endure, for this is what legislators aim at, and they call just that which is to the common advantage. All the communities, then, seem to be parts of the political community; and the particular kinds of friendship will correspond to the particular kinds of community.
The Catechism of the Catholic Church defines "Common Good" as " the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."
I would go even further. Aristotle lacked Christian revelation, and so his definition is slightly imprecise and incomplete. Personal "happiness" or fulfillment would be more accurately defined as conformity with God's will. The ultimate object of the personal desire for happiness then, is eternal life with God. Thus, the pursuit of the common good would be that which promotes the salvation of the souls organized in a society, although this definition does not necessarily require a State religion nor preclude religious freedom.
Aquinas said:
I answer that, As stated above (1), the law belongs to that which is a principle of human acts, because it is their rule and measure. Now as reason is a principle of human acts, so in reason itself there is something which is the principle in respect of all the rest: wherefore to this principle chiefly and mainly law must needs be referred. Now the first principle in practical matters, which are the object of the practical reason, is the last end: and the last end of human life is bliss or happiness, as stated above (2, 7; 3, 1). Consequently the law must needs regard principally the relationship to happiness. Moreover, since every part is ordained to the whole, as imperfect to perfect; and since one man is a part of the perfect community, the law must needs regard properly the relationship to universal happiness. Wherefore the Philosopher, in the above definition of legal matters mentions both happiness and the body politic: for he says (Ethic. v, 1) that we call those legal matters "just, which are adapted to produce and preserve happiness and its parts for the body politic": since the state is a perfect community, as he says in Polit. i, 1.Now in every genus, that which belongs to it chiefly is the principle of the others, and the others belong to that genus in subordination to that thing: thus fire, which is chief among hot things, is the cause of heat in mixed bodies, and these are said to be hot in so far as they have a share of fire. Consequently, since the law is chiefly ordained to the common good, any other precept in regard to some individual work, must needs be devoid of the nature of a law, save in so far as it regards the common good. Therefore every law is ordained to the common good.
No. It's intrinsically evil. It's never moral. Cigarette smoking is not intrinsically evil and can be moral under certain conditions, that is, when used occassionally.
If the effort to suppress a vice results in greater vice (for example, the criminalization of marijuana), then the vice should not be suppressed.
Aquinas said (please note italicized areas):
Whether it belongs to the human law to repress all vices?
Objection 1. It would seem that it belongs to human law to repress all vices. For Isidore says (Etym. v, 20) that "laws were made in order that, in fear thereof, man's audacity might be held in check." But it would not be held in check sufficiently, unless all evils were repressed by law. Therefore human laws should repress all evils.
Objection 2. Further, the intention of the lawgiver is to make the citizens virtuous. But a man cannot be virtuous unless he forbear from all kinds of vice. Therefore it belongs to human law to repress all vices.
Objection 3. Further, human law is derived from the natural law, as stated above (95, 2). But all vices are contrary to the law of nature. Therefore human law should repress all vices.
On the contrary, We read in De Lib. Arb. i, 5: "It seems to me that the law which is written for the governing of the people rightly permits these things, and that Divine providence punishes them." But Divine providence punishes nothing but vices. Therefore human law rightly allows some vices, by not repressing them.
I answer that, As stated above (90, A1,2), law is framed as a rule or measure of human acts. Now a measure should be homogeneous with that which it measures, as stated in Metaph. x, text. 3,4, since different things are measured by different measures. Wherefore laws imposed on men should also be in keeping with their condition, for, as Isidore says (Etym. v, 21), law should be "possible both according to nature, and according to the customs of the country." Now possibility or faculty of action is due to an interior habit or disposition: since the same thing is not possible to one who has not a virtuous habit, as is possible to one who has. Thus the same is not possible to a child as to a full-grown man: for which reason the law for children is not the same as for adults, since many things are permitted to children, which in an adult are punished by law or at any rate are open to blame. In like manner many things are permissible to men not perfect in virtue, which would be intolerable in a virtuous man.
Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like.
Reply to Objection 1. Audacity seems to refer to the assailing of others. Consequently it belongs to those sins chiefly whereby one's neighbor is injured: and these sins are forbidden by human law, as stated.
Reply to Objection 2. The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Ps. 30:33): "He that violently bloweth his nose, bringeth out blood"; and (Mt. 9:17) that if "new wine," i.e. precepts of a perfect life, "is put into old bottles," i.e. into imperfect men, "the bottles break, and the wine runneth out," i.e. the precepts are despised, and those men, from contempt, break into evils worse still.
Reply to Objection 3. The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. i, 5): "The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does." Wherefore, too, human law does not prohibit everything that is forbidden by the natural law.
Where does this assertion derive from?
We are talking about killing in large numbers young children who have already been born, since that is what God commanded his followers to do. You "moral absolutists" are arguing that mass infanticide is okay is certain instances, of which God approves.
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