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Posted on 04/08/2003 2:34:27 PM PDT by Remedy
Whether you think sodomy is wonderful and should be constitutionally protected, or whether you think sodomy should be treated as a public health and safety hazard, you have to be amazed at what happened at the United States Supreme Court on March 26 in the Texas sodomy case arguments.
It was a stunning day, not because of what was said, but because of what was not said.
The New York Times put it this way: "The argument proved to be a mismatch of advocates to a degree rarely seen at the court." But, for a case that can lead to radical revisions of state marriage, sexual behavior, and public health laws, there were far bigger "mismatches." There was the near absence of constitutional common sense, history, facts, and relevant medical science for a case that somehow got to the high court with no real record below.
The case involves two men charged with sodomy under Texas law. They lost in state trial and appeals courts, and the Texas Court of Criminal Appeals refused to hear the case. With the help of the Lambda Legal Defense and Education Fund they appealed to the Supreme Court.
There was no real discussion in oral arguments of the terrible toll of sexually transmitted diseases, not even those uniquely spread by sodomy. The Centers for Disease Control has said that men who have sex with men are particularly susceptible to sexually transmitted diseases and their consequences.
Why? Anal sodomy is not the same as marital intercourse or even most other forms of extra-marital sex. Sexually transmitted diseases cost such a staggering amount – $17 billion according to the latest CDC report – that the public health, safety, and welfare issues cannot be ignored. The price tag itself makes the issue transcend "privacy" concerns. Many forms of sex outside of marriage, including this one are well within the state’s interest to regulate, but little was said of this before the High Court
The U.S. Supreme Court has repeatedly affirmed that state legislatures have the right to make laws in furtherance of public safety, health, and morality. The Constitution does not require states to address all perceived evils on an all-or-nothing basis. They can pick and choose which problems to address, even if some inequality results, as long as there is a rational reason for a law. Public health concerns alone justify Texas’ law.
The court did not hear how Lawrence v. Texas is really part of the broader attack on marriage, and only superficially about sodomy. Homosexual activists clearly reveal in Lawrence and other litigation – in Hawaii, Alaska, Vermont, Connecticut, Georgia, New Jersey, Indiana, Massachusetts, – that their goal is to redefine marriage through activist courts rather than using the democratic legislative process.
In Lawrence, Lambda and other radicals attacked the Texas sodomy statute under both due process and equal protection grounds. There are very serious consequences to this. If they win their due process argument, and if sodomy becomes a (newly discovered) fundamental constitutional right -- subject to a "strict scrutiny" standard , then fornication , prostitution and many other legal limits on sexual behavior must fall as well because such laws would also be unconstitutional. In other words, it would be unconstitutional to limit sex in many ways. Parents, are you listening? And as to equal protection the court and the country should have heard how that outcome so obviously points a dagger at the heart of marriage as exclusively an option for opposite-sex couples.
Throughout the argument some justices acted like they were unaware of the most basic legal precepts, such as the state’s right to exercise general police powers to regulate the, "health, safety, and morals" of their citizens. That power includes the right to define marriage; to place limits on sexual behavior; to prohibit sibling marriage, acts of pedophilia, polygamy, incest, and many other behaviors whose regulation must all must fall if theories advocated by Lambda win.
The court should also have heard much more about the American legal history of sodomy laws. A brief submitted by the Center for Original Intent of the Constitution documenting colonial and state legal history proves beyond debate that when the original Constitution was ratified, the Bill of Rights was adopted, and when the 14th Amendment was ratified, the framers and states had a clear understanding that sodomy was uniformly condemned and the behavior was not subject to some form of special privilege under the Constitution.
Most importantly, perhaps, the arguments were the perfect opportunity to bring up the separation of powers. The Constitution does not make the Supreme Court a "super legislature" to revise and remove each section of a state's criminal code not currently in vogue in Hollywood and the media. Matters of marriage and sexual morality such as these belong, as they always have in our federal system, with legislatures, not in federal courtrooms.
We pray that the swing justices will find the prospect of what would follow overturning the Texas law, even on the narrowest grounds, just too unpalatable and disruptive of law and society to allow this to happen.
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
Is Same-Sex Marriage Good for the Nation?
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.]
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And this is bad, because? What two or more willing adults do in the privacy of their home, is frankly none of your business. I managed to get an education, set aside for my retirement, purchase numerous homes, and raise a family all by myself. I do not need the gov't help telling me where and where I cannot place Mr. Winky.
No, you misunderstand. I don't think sodomy should be made a counstitutional right; I think it always has been. Call it Freedom of Association, Pursuit of Happiness or whatever. Again, what willing adults do, in private, is none of your business. They neither want your permission, nor seek your approval.
Personally, I find it ironic that people who believe in a conservative and small goverment, want to increase the the Gov't ability to force itself into people's personal lives. Given history as an example, giving the Gov't this much power has never been a good thing.
Sure, let's hold them accountable; as soon as we go to the bars and tax guys who have one night stands; and girls who sleep with more than 1 man in their life. Or are you proposing a double standard?
The 9th amendment guarantees the right.
"The enumeration in the Constitution of certain rights, SHALL NOT be construed to DENY OR DISPARAGE others retained by the people."
Yes, all males have the right, with a consenting partner, to put Mr. Winky wherever they want.
Personally, I do not encourage living a homosexual lifestyle. In fact, I strongly discourage it. But there is no constitutional basis for making a law against it.
I have raised three males in my life, from infant to adult men and have consistently reminded them, while they were growing up, that homosexual men's average lifespan is 45 years old.
There is obviously a powerful message being conveyed here about the very high dangerous health risk that is inherent in a homosexual lifestyle, so leave it alone.
If by "Gov't" you mean the Texas State Government, the people of the State of Texas have had the Texas State Government forcing "itself into people's personal lives" for a number of years, and a SCOTUS decision favoring the State of Texas would not be an increase.
If by "Gov't" you mean the US Federal Government through the SCOTUS, a decision against the State of Texas would be at the expense of State's rights in relation to the Federal Government, and given the circumstances.would probably be an increase.
"The 9th amendment guarantees the right."
"Yes, all males have the right, with a consenting partner, to put Mr. Winky wherever they want. "
While "The enumeration in the Constitution of certain rights, SHALL NOT be construed to DENY OR DISPARAGE others retained by the people," you have not made a case that what you assert as a right actually is a right retained by the people and therefore under the "protection" of the ninth amendment. .
Well, how did that happen?
Why didn't Texas introduce into evidence the materials it wishes to rely on?
You know, you are right. I read through the first 24 Admendments of the Counstitution, and found no mention of Mr. Winky at all. I wonder, then does the state have the ability to assert it's domain in relations with my wife? I think you make an absurd point, as using your logic, no one would be allowed marital relations without State approval. Or does the state assert it's moral authority of Mr. Winky's everywhere, only when certain critia are met?
For example, Massachusetts had very strict laws concerning adultery and fornication when they ratified. Those are definitely consensual behaviors that commonly take place in private. Those laws continued in effect after ratification.
The simple fact is that all states exist to regulate morality. The law reflects or seeks to reinforce the morality of its citizens. The only question is which morality is proscribed. If you wish to live in a community that takes a libertine attitude to sexual mores a resident of Massachusetts could move to a more relaxed area, such as New York.
The bottom line is that the Constitution was only meant to place limits on FEDERAL action. It was not created to place limits on STATE action. Even the 10th amendment recognizes that there are rights retained by the states.
I know.
Mr Winky's rights in regard to marriage had been established for centuries if not millenia at the time of the authoring of the ninth ammendment.
By your logic, anytime one claims a right it automatically becomes a right merely by that claim.
"Or does the state assert it's moral authority of Mr. Winky's everywhere, only when certain criteria are met?"
I'm not willing to say the state's authority is moral, but yes the state should assert it's authority of "Mr. Winky's everywhere" only when certain cirteria are met. The subject under discussion seems to relate to what the criteria should be.
And you still haven't made a case.
If you start with the presupposition, that men are automous and derive their rights from their own sovereign pleasure, then you could construct a scenario in which men always had the right to commit homosexual sodomy. One could also construct a scenario in which one could commit bestiality and necrophilia. I hardly believe that societies have flourished for long in an environment of liberinism.
Therefore, in order to have a social order, one must find some other source for "rights." Jefferson stated that they are given to us by God. If Providence is indeed the source of all rights, would Providence allow man to do, in the interest of liberty, something that is contrary to God's law? The suggestion is preposterous. It would destroy the entire basis for liberty. Therefore, if one looks to a transcendant source for rights, one must be subservient to the limits of liberty that source proscribes.
For example, do you have the liberty to beat your parents? If not, then what is wrong with the state punishing children for beating their parents? Various settlements in New England laid out strict punishments for these rebellious children. Under your scheme, such laws would be unconstituional. Why?
I agree, a right is something that should be 'self evident'. And, one could then extend that statement, that one's rights should not infringe upon anothers rights. This would apply to the right of free assocation, movement, and to pursue one's own destiny. As long as one person's rights do not infringe upon another's. In this case, you are imposing your moral rights, upon a population at large. I can assure you, that no matter how noble you may perceive your cause to be; not everyone shares the zeal in which you force your belief structure, upon them.
If you are married, we BOTH know that isn't true.
Rights boil down to the individual. As long as I enjoy my rights, and they do not deny you the equal ability to enjoy your rights, everything is kosher. This applies to housing (if we can both afford nice houses, I cannot deny you the right to purchase a house in the neighborhood), employment and generally establishes a guideline for living in civilized society.
However, in this case, people without a vested interest are imposing their right (Where Mr. Winky belongs) upon the population at large. Now, personally I don't care if people tie wild cats to their Mr. Winky, and take cold showers. It's their problem, not mine. This also applies in the privacy of their homes, in the company of consentual adults. Notice I did not say children, the recently deceased, or helpless animals. That would be forcing one's rights upon a helpless victim.
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