Stand with Scalia and Texas

Townhall.com ^ | April 3, 2003 | Terence Jeffrey

[xsysmgr]

Not infrequently Antonin Scalia lights up the Supreme Court with a lightning bolt of common sense. He did it again last week during oral arguments in Lawrence v. Texas.

This is the case that in determining whether homosexual behavior is a "right" may explode the foundation of law.

Famed Harvard lawyer Laurence Tribe wrote the brief submitted in the case by the American Civil Liberties Union. "Americans," he said, "have a fundamental right to be free from government regulation of consensual sexual conduct in the home."

Paul Smith, attorney for petitioners John Lawrence and Tyron Garner -- who were fined $200 in Houston for activities I will not describe here -- restated the proposition in his own brief. "Among the liberties protected by the Constitution," he said, "is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex."

Some may wonder why this issue is arriving only now in the Court. Didn't we settle this long ago -- like, say, in a Woodstock mud pit? Isn't anything goes sexuality official Baby Boom doctrine?

We certainly don't want police in our bedrooms, do we?

Well, as lawyer Smith discovered, Justice Scalia missed all that rot.

The lightning bolt of Scalia's common sense crashed down on Smith as he was explaining that the problem with the Texas law banning homosexual conduct is that it represents an effort by the majority to impose their morality on the minority.

"But society always . . . makes these moral judgments," said Scalia. "Why is this different from bigamy?"

Indeed, if people have a "fundamental right" to "consensual sexual conduct in the home," why can't a man take two wives? Why not three? Why can't everybody pick the conglomeration of consensual partners that suits their peculiar appetite? As long as it's done "in the home," not in the street, it's a fundamental right. Right?

Wrong, said lawyer Smith.

Excuse me?

Right there before God, man and Ruth Ginsburg, the lawyer arguing for "the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy" conceded that some consensual arrangements could be prohibited. "Now, bigamy," he said, "involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples' behaviors . . . "

So here is the real proposition before the Court: If a man has sex with a man, he is expressing a right. If he has sex with two women, he is still expressing a right. But if he marries the two women first the state can punish him to protect matrimony.

The current petitioners may believe this. But one suspects their bedfellows in the cause will soon be clamoring for logical consistency. They will give Scalia a straight answer. To his question, "Why is this different from bigamy?" they will answer: It is not. Bigamy, too, is a fundamental right.

Where does it end? Who can tell -- given that a ruling for the petitioners could cause catastrophic collateral damage to the foundation of law itself? All men, said the Founders, "are endowed by their Creator with certain unalienable rights." If all consensual adult sex is one of those rights, either God gave it to us or some force other than God is author of our liberty.

Seventeen years ago, in Bowers v. Hardwick, when Laurence Tribe first argued for this right, Justice Byron White, writing for the Court, said "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road."

Chief Justice Warren Burger scoffed at Tribe's claim. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching."

The power to do just that resides now with five judges.

[eno_]

The only foundation of a free Constitution is pure Virtue

That was John Adams but it could well have been Kung Fu Tze. Virtue in governance is not a Christian, or even a religious concept. Confucianism is less a religion than a management philosophy, in that it has no dogma.

How odd that people seek to make men less free in the name of God. I guess these are the same Drug Warriors that cannot name a single unenumerated right, never mind understanding the source of those rights. They understand neither God nor the Constitution.

[eno_]

You miss an important distinction.

When the cops are getting less competent by the hour - look at the slipping solution rates for murder and rape, nevermind property crime - do you really want them chasing Katherine the Great wannabes?

Some transgressions have no practical need to be illegal.

[FF578]

You will worship Almighty God. Yes Sir, You Will.

[FF578]

The equal protection violation before the court is the fact that the Texas Sodomy law punishes only homosexual sodomy.

10 Other States (Including My State of North Carolina) punish both Homosexual and Heterosexual Sodomy. This issue isn't even before the Court.

So tell me, What is the equal protection violation in the laws that punish Both Heterosexual and Homosexual Sodomy?

[Viva Le Dissention]

As I've explained before, and I will explain again, no doubt fruitlessly, is that you can't legislate morality not because of any overarching question about government's purpose (although I believe it goes beyond the scope of government), but because once you legislate morality, it defeats the purpose of the entire law--people won't be behaving morally, but they will be behaving as a member of society who fears the wrath of the law.

For example, let's take two different people, both of whom are tempted to steal something, and both of whom choose not to steal--one person because he thinks stealing is a "wrong," and the other because he is fearful of prosecution by the State.

Although both people have acted the same way, only one has acted morally, because for morals to have any meaning, they must be exercised freely and without coercion or reservation.

[Viva Le Dissention]

You're focusing only on the first question of the case. There are three questions presented to the Court:

QUESTIONS PRESENTED
1. Whether Petitioners' criminal convictions under the Texas
"Homosexual Conduct" law - which criminalizes sexual
intimacy by same-sex couples, but not identical behavior
by different-sex couples - violate the Fourteenth
Amendment guarantee of equal protection of the laws?
2. Whether Petitioners' criminal convictions for adult
consensual sexual intimacy in the home violate their vital
interests in liberty and privacy protected by the Due
Process Clause of the Fourteenth Amendment?
3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should
be overruled?

Note question #2. If answered in the affirmative, your North Carolina statute will be declared unconstitutional.

If you would like to read the briefs, they are available her.
http://supreme.lp.findlaw.com/supreme_court/docket/2002/march.html#02-102

[eno_]

Well, it's interesting they decided to go for due process and not equal protection under the theory the law could not possibly be applied except sporadically and unevenly, but that was my point: not sex discrimination, but lack of equal protection because it is inherently capricious in application.

[The Red Zone]

And you have an excellent point. For the SCOTUS to declare state bans on buggery unconstitutional per se, would be as bogus a practice of constitutional law as Roe v. Wade was. There may be other specific problems with this law, such as an equal protection issue that may appear in that it bans unnatural acts between males but not the exact same unnatural acts between opposite sexes.

[The Red Zone]

"Worship" as used in the Bible is always a willing act. The confession of Christ that, e.g., the demons are forced to, is not willing and does not amount to worship.

[WL-law]

There may be other specific problems with this law, such as an equal protection issue that may appear in that it bans unnatural acts between males but not the exact same unnatural acts between opposite sexes.

Equal Protection jurisprudence does NOT protect a group just because it's a group --- the group must have a special status that the Court recognizes as requiring special protection, which means discrimination on the basis of race primarily, although women get an intermediate level of protection.

Discrimination against gays only requires a "rational basis" to meet the requirements of the Equal Protection Clause.

Meaning -- there is a rational basis to distinguish banning homosexual buggery because it is historically morally offensive.

[The Red Zone]

The law specifies gender. It's gender, not sexual orientation, that's the basis of the group. To be fair, the law in question should be gender blind with respect to the particular kind of prohibited penetration.

[WL-law]

The law specifies gender.

But -- Equal Protection jusrisprudence is intended to protect groups that are "minorities" from being continuously oppressed through the democratic majoritarian process.

The logic of that jurisprudence is, admittedly, internally inconsistent as it is applied to help women, since women are NOT a minority in the population, but the logic applied in that case by the Court is that they were historically 'oppressed' by the male majority in setting up legal institutions. So women get an intermediate level of protection.

But the bottom line is -- men as a group are NEVER viewed as oppressed and thus protectable by Constitutional fiat, because, as the logic goes, they are not intrinsically or historically disadvantaged in the democratic process, and can 'right' any 'wrong' adequately by the electoral process.

And gays aren't viewed as a "sex" or a sexual minority, since gayness is not an intrinsiic and immutable trait, it is a lifestyle BEHAVIOR.

[FF578]

If one uses your logic, then one comes to the conclusion that there should be no laws.

Frankly, I don't care Why someone chooses not to engage in immoral behavior. Either Moral reasons or fear of prosecution.

By keeping people from engaging in the immoral act, you protect society as a whole from being perverted.

As each immoral act is done, the public will become desensitized to it. That is the entire goal of the Homosexual movement. 20 or 30 years ago, homosexuals were simply not tolerated, gradually over time, libertarians/democrats/greens who believe morality is relative, became accepting of the immoral abominable behavior.

Way back in 1815, The Pennsylvania Supreme Court decided an important case, here are excerpts from that case: It reflects the case law of the day, and the attitude on which our nation was founded.)

This court is...invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society... Whatever tends to the destruction of morality, in general, may be punishable criminally. Crimes are public offenses, not because they are perpetrated publically, but because their effect is to injure the public. Buglary, though done in secret, is a public offense; and secretly destroying fences is indictable.

Hence it follows, that an offense may be punishable, if in it's nature and by it's example, it tends to the corruption or morals; although it not be committed in public.

Although every immoral act, such as lying, ect... is not indictable, yet where the offense charged is destructive of morality in general...it is punishable at common law. The destruction of morality renders the power of government invalid...

No man is permitted to corrupt the morals of the people, secret poision cannot be thus desseminated.

[GraniteStateConservative]

Marriage (between 2 or among 3 or more people) is a state sanctioned contract. The states can decide what constitutes a valid contract. We aren't talking about gay marriage in this case.

[GraniteStateConservative]

Yep. Too bad you can't ask justices questions. I'd like to hear Scalia say it would be legal for the government to outlaw all sexual relations except missionary position in a bed in a bedroom with the lights out between married heterosexual adults ages 21-40.

[GraniteStateConservative]

Murder takes away the right to life, right to property, etc. of another person. That's the standard. Do your actions take away my rights?

[GraniteStateConservative]

Description of Fallacious Appeal to Tradition:

Appeal to Tradition is a fallacy that occurs when it is assumed that something is better or correct simply because it is older, traditional, or "always has been done." This sort of "reasoning" has the following form:

1. X is old or traditional
2. Therefore X is correct or better.

This sort of "reasoning" is fallacious because the age of something does not automatically make it correct or better than something newer. This is made quite obvious by the following example: The theory that witches and demons cause disease is far older than the theory that microrganisms cause diseases. Therefore, the theory about witches and demons must be true.

This sort of "reasoning" is appealing for a variety of reasons. First, people often prefer to stick with what is older or traditional. This is a fairly common psychological characteristic of people which may stem from the fact that people feel more comfortable about what has been around longer. Second, sticking with things that are older or traditional is often easier than testing new things. Hence, people often prefer older and traditional things out of laziness. Hence, Appeal to Tradition is a somewhat common fallacy.

It should not be assumed that new things must be better than old things (see the fallacy Appeal to Novelty) any more than it should be assumed that old things are better than new things. The age of something does not, in general, have any bearing on its quality or correctness (in this context). In the case of tradition, assuming that something is correct just because it is considered a tradition is poor reasoning. For example, if the belief that 1+1 = 56 were a tradition of a group of people it would hardly follow that it is true.

Obviously, age does have a bearing in some contexts. For example, if a person concluded that aged wine would be better than brand new wine, he would not be committing an Appeal to Tradition. This is because, in such cases the age of the thing is relevant to its quality. Thus, the fallacy is committed only when the age is not, in and of itself, relevant to the claim.

One final issue that must be considered is the "test of time." In some cases people might be assuming that because something has lasted as a tradition or has been around a long time that it is true because it has "passed the test of time." If a person assumes that something must be correct or true simply because it has persisted a long time, then he has committed an Appeal to Tradition. After all, as history has shown people can persist in accepting false claims for centuries.

However, if a person argues that the claim or thing in question has successfully stood up to challenges and tests for a long period of time then they would not be committing a fallacy. In such cases the claim would be backed by evidence. As an example, the theory that matter is made of subatomic particles has survived numerous tests and challenges over the years so there is a weight of evidence in its favor. The claim is reasonable to accept because of the weight of this evidence and not because the claim is old. Thus, a claim's surviving legitimate challenges and passing valid tests for a long period of time can justify the acceptance of a claim. But mere age or persistance does not warrant accepting a claim.

[ThinkDifferent]

everyone is obligated to adhere to religious morality

And how is this different from sharia other than the specific religion that is enforced at gunpoint?

[ThinkDifferent]

Ignore FF578's rantings. He is either a troll or a liberal infiltrator trying to make conservatives look like Taliban wannabes.