Posted on 04/03/2003 1:46:27 AM PST by 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.
Yep, I think we'd absolutely love to watch you match wits with Scalia.
BURGER, C.J., Concurring Opinion Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law…. During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed…. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." W. Blackstone, Commentaries . The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
Thomas Jefferson on Sodomy Sect. XIV. Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least. Peterson, Merrill D. "Crimes and Punishments" Thomas Jefferson: Writings Public Papers (Literary Classics of the United States, Inc. 1984) pp. 355, 356.
More than a dozen briefs filed at the United States Supreme Court this week oppose the declaration of a new constitutional right in Lawrence v. Texas.
Alabama, South Carolina, and Utah (State Attorneys General)
American Center for Law and Justice
Jay Alan Sekulow, Counsel of Record
American Family Association
Stephen M. Crampton, Counsel of Record
Center for Arizona Policy
This brief refutes the errors expressed in the opposing amicus submitted by the American Psychology Association.
Len L. Munsil, Counsel of Record
Center for Law and Justice International
Pat Monaghan, Counsel of Record
Center for the Original Intent of the Constitution
Michael P. Farris, Counsel of Record
Concerned Women for America
Janet M. LaRue, Counsel of Record
Family Research Council & Focus on the Family
Robert P. George, Counsel of Record
Legislators, State of Texas
Kelly Shackelford, Counsel of Record
Liberty Counsel
Mathew D. Staver, Counsel of Record
Pro Family Law Center
Richard Ackerman, Counsel of Record
Texas Eagle Forum; Daughters of Liberty Republican Women of Houston, Texas;
Spirit of Freedom Republican Women's Club
Teresa Stanton Collett, Counsel for Amici Curiae
Texas Physicians Resource Council, Christian Medical and Dental Association, Catholic Medical Association
Glen Lavy, Counsel of Record
United Families International
Paul Benjamin Linton, Counsel for the Amicus
John Rankin was raised a secular humanist, an agnostic Unitarian prior to converting to biblical faith in 1967. He holds graduate degrees in theology from Gordon Conwell and Harvard, is author of the three-volume set, First the Gospel, Then Politics..., and is host of the Mars Hill Forum series. He and his wife have been married for nearly twenty-five years and have four children. Website: www.teihartford.com
The first thing I want to read is something I wrote about seven, eight years ago called "Human Sexuality and Civil Rights." I wrote this quite a bit prior to the debate over same-sex marriage. And it's a non-binding resolution that I desire to see politically debated. And again, it's entitled "Human Sexuality and Civil Rights." And it goes accordingly.
Whereas:
And whereas:
And whereas:
We affirm: [and there are three points of affirmation]
1. Marriage is defined as the union of one man and one woman in mutual fidelity;
2. No punitive laws shall exist to restrict private association, whether heterosexual or homosexual; [And there are people on the conservative Christian right that Norm's been talking about tonight who disagree with me on that. You'll find a very strong libertarian ethic, but it's based on a prior definition of equal life for all.] and;
3. All persons shall accept accountability for the public consequences of their private associations and actions, and they shall in no way deprive others of life, liberty, or property.
What I'm saying here is that I disagree with same-sex marriage. I disagree with homosexual relationships. Nonetheless, all people are free to disagree with me as I am with them, so long as we have an understanding of unalienable rights, that everyone has life, liberty and property, free not to be violated by other people. So the real debate comes down to those boundaries. And many acts of a homosexual or heterosexual nature, or other forms of sexuality, do violate life, liberty and property. And I'm equally opposed to all of those because I'm in favor of life, liberty and property. But for those acts of any nature that do not violate them, then people have that freedom in a civil society. And you will not see me pursuing those matters.
The second thing that I want to share with you is a petition that I've circulated around the state. I led off the testimony this year in the statehouse February 11th saying "no" to same-sex marriage. I was part of the same panel last year. And this is actually the summation of my testimony one year ago. And I'll walk through the definition of terms as I go. It's entitled, "Petition to Members of the Connecticut General Assembly."
Yes to man and woman in marriage.
No to same-sex marriage.
[Now an important predicate is, I don't say "no" to anything unless I first say "yes" to something. I think you will find that my agenda is a positive one, and my only concern is to protect life, liberty and property, or should I say, to affirm a government that protects life, liberty and property. I seek to do that myself to begin with. And so the real question is, can we honor these unalienable rights while also coming to a place of difference of interpretation. So my "no" is predicated on a prior "yes."]
As a resident of Connecticut I affirm the following: [and there are four affirmations]
1. In the United States, the civil rights which we all enjoy are rooted in the laws of nature and of nature's God, in the unalienable rights to life, liberty, property and the pursuit of happiness. [I have been in contact with all 187 legislators on this matter, at least five to eight times. I've heard back from 48 of them, and none of them will dispute the statement I just gave to you.]
2. The only source for unalienable rights in all human history is the Creator, the God of the Bible. [I've had a couple of people try to dispute me on this. And some years ago one was Nadine Strossen, who is president of the ACLU. And I said that the only source is the God of the Bible, and she started off that evening, and the topic was homosexuality and civil rights that evening. And she quoted the language from Jefferson, that we hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness. And as she quoted that, I said you started at the same source that I started: unalienable rights. And so I just have one simple question. Who is the Creator that Thomas Jefferson was referring to? And Jefferson was a rationalist. He was not by any stretch an evangelical Christian as myself, and yet he and those with him who were from an orthodox Christian background in a Protestant context, appealed to a source higher than King George III. They appealed to the Creator. So I asked Nadine Strossen, who is the Creator? She looked at me and said well, you have your Creator and other people have their Creators. I said no, you've just described polytheism. In other words, that's not the context to which Jefferson was referring to. And if you look at every polytheistic culture in all of human history, they have no concept of unalienable rights. Rights go to those who are in power, whereas the concept of unalienable rights upon which this nation is founded, are rooted in the biblical understanding of the Creator, that says that all people deserve the same rights because they are people, and not because of any other secondary reason.]
3. The God of the Bible defines true marriage as one man, one woman, one lifetime. [This is the order of creation, the image of God.] The health of society is rooted in this foundation.
4. In human history, no society has ever affirmed both homosexuality and unalienable rights. [So here is an intellectual challenge, to track out history, to find out where unalienable rights are affirmed. And if you can find any society that ever has affirmed homosexuality and unalienable rights together, you won't find it.]
There is only one moral Law, which everyone is obligated to adhere to regardless of their beliefs or lack thereof. Non-believers are not free to lie, to cheat, to steal, to rob, to rape, to murder, or any number of other cruel acts with impunity.
No there won't; risk says their won't.
So, feel free to go pork a pig or three and splash in the moral filth the dissemblers and atheist libertines such as risk have loosed in this country.
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