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.
Not so?
The God of the Philosophers* is also the God of the Bible. Therefore, reason cannot contradict revelation. Aquinas synthesized the best of natural philosophy (Aristotle) with divine revelation, and Christ's Church regards St. Thomas Aquinas as the premier theological doctor of the Church. That's where I'm coming from.
___________________________________________________________________
*(Acts 17:23) For as I walked around and looked carefully at your objects of worship, I even found an altar with this inscription: TO AN UNKNOWN GOD. Now what you worship as something unknown I am going to proclaim to you.
OK. Make it unnatural sexual activities.
There is no logical reply to that position.
Things are clear to you which are wrong, AND you just did ANOTHER strawman. I never said anything at all like Jesus didn't accept the role of the military.
Who the hell are you debating? Yourself.
Are you balanced?
You can't handle the truth. You have lied repeatedly on this thread, what the hell would you know about truth?
How do you figure that? Are you talking political "rights" or natural rights?
This is simple utilitarianism, which is a simply idiotic philosophical system.
This is such obvious nonsense as to expose the stupidity of the advocate. Under a utilitarian system, if stealing from you makes you very happy, but losing your stuff to a thief makes you only somewhat annoyed, the theft is good because it increases the net amount of happiness in the world.
Exactly.
Under a libertarian system, the theft is evil because it violates the rights of the victim (no matter how little he might care, so long as he does not care so little as to actually consent to it).
I'm familiar with the argument. But if you notice in the original remarks there is no reference to "rights," just "happiness."
Several problems remain for the libertarian:
Where do rights come from?
Are they binding on everyone? If so, why?
By what authority do libertarians impose their idea of "rights" on society?
Great point!
We're talking about moral aboslutes here, and the fact remains that you're arguing that it is sometimes moral to kill children. That's an instance of situational ethics rather than moral absolutes...
If God, as Creator, has the right to destroy His creatures, He certainly has the right to order some of His creatures to destroy others. Therefore, in such a case God would not be acting immorally. It is not abnormal for God to work through proxies, as He does when He performs good acts through us.
The "voice of God" objection is a good one, but not insurmountable. This doesn't present a difficulty for Christians who, at a minimum, accept the close of Revelation with the canonization of the Bible. The Bible indicates that Christians must not murder (although killing is sometimes acceptable). The Bible also indicates that demons can appear as angels of light. Therefore, private revelation must be treated with skepticism and must conform to Biblical revelation. Therefore, a private revelation commanding murder would have to be rejected. Christians generally recognize that God used the nation of Israel to kill evildoers at least partially as a means of testing and forming them as a people, as when He ordered Abraham to offer up his son Isaac as a sacrifice.
The Catholic position is even more solid. The Church has determined that Revelation closed with the death of the last Apostle. Moreover, the Church, as the living Body of Christ, must be the final arbiter regarding the validity of private revelation. Private revelation must conform to both Scripture and Church teaching. Therefore, a Catholic would be obliged to disregard a revelation which commanded murder. The Church regards the circumstances regarding the slaughter of the Canaanites as special, as described above.
Hardly. History clearly demonstrates that the Catholic Churches' ethics have been as morally relative as God's.
This is not at all an irrelevant analogy. True, a painting belongs to a different category than human beings, but human beings belong to a different category than God. The difference between God and men is far greater than the difference between a man and a painting. The difference is infinite in all respects. God transcends all categories.
A human being is an ultimate end in one sense but not in another. Yet even earthly human life is not an ultimate end, since the taking of human life is often justifiable. In fact, individual lives can be sacrificed for the common good, as in the case of war. Ultimately, eternal life with God is the end that human life is directed toward.
The Bible also discusses a prophet who offered his virgin daughters to be raped and sexually abused as a method of appeasing the mob outside his door.
Sophistry and silliness.
I think you mean "the God purportedly described in the Bible".
Personally I find the "God" of the old testament very hard to swallow as a supreme being. More like a petulant tyrant.
But that doesn't preclude there being a "real" God, who wasn't morally relative.
Mystical hokum, which still does not disguise the moral relativism of a position which states that it's sometimes moral to kill little toddlers who are clinging to their mother's skirts...
That's true with appeals to revelation alone, although it is possible to determine whether divine revelation contradicts reason. Nevertheless, arguments based on reason alone, proceeding from First Principles, such as "the good is to be done and evil avoided," are knowable by all with at least moral certainty.
You might enjoy Aristotle's Nicomachean Ethics. He didn't appeal to divine revelation at all.
Really?
Right, that's what exactly I mean.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.