Posted on 04/24/2003 7:31:58 AM PDT by William McKinley
Why do we have to do that?
Sodomy is one of the leading mechanisms of AIDS trnasmission in the country. AIDS costs the country billions of dollars a year. There is an obvious state interest in reducing that cost. Other major means of transmission (e.g. intravenous drug use, prostitution) are also illegal, or illegal in most jurisdictions. Minor mechanisms of transmission have very little social impact and the state can simply decide they're not important enough to deal with.
This is like arguing that because we enforce helmet laws on motorcyclists, and because pedestrians are also injured in auto accidents, we should impose hemet laws on pedestrians.
The case before the court is over what the legal foundation for the law is.
The question isn't over if it is a good law or if the law sets a bad precedent. The question is over if there is a legal foundation at all for the law or not.
I have to say, I am not even sure exactly what you are trying to get at anyway. What side are you arguing, and to what end? I am not sure if I am in agreement with you or not, since I can't tell. But what I do know is that you don't seem to be getting the gist of what Santorum was arguing. If you have not read the article at the top of the thread, please take the time to because the author does get the point and goes into it in detail about it (he doesn't agree with the point, by the way).
Umm…I’m pretty sure they’re NOT equating pedophilic incest with homosexuality. The two consenting adults in the privacy of their own home red herring still applies here.
The doctrine of States Rights and the system of Federalism that we have works wonderfully to allow local communities to develop and enforce their own customs and laws; and to an extent, I like it. Across these 50 states there are thousands of different ways to handle similar things, from running school boards to enforcing zoning laws to setting speed limits. But I wonder about the suitability of this system when the issue at hand is something foundational to that society, such as life and death (abortion and euthanasia etc) and the family (marriage, adoption and divorce laws). Just as in the case of Slavery in the 1840's and 1850's, there is something about those issues that simply do not allow a situation where some states will allow abortion and some not; some states allow the euthanizing of the elderly and some not; some states allow homosex and some not; some states allow incest and some not. If you have enough locally diverse customs on these fundamental cultural issues across the land, what you may end up with are the Diverse States of American instead of the United States of America. I worry about that. But I also worry about the power of the central government to compel everyone in the land to observe the same law. At that point, if you are in the opposition, where do you go?
Sorry if I have not been clear. First, I don't see why there is even a law against gay sex in Texas in the first place. The laws should apply to all people equally and not single out any one group for harsher punishment than all others.Ok, there are a number of issues here. I hope you will take my arguments for what they are, which is the argument of one who believes in the proper role for each branch of the government.
If there should be such a law or not is, in my eyes, one of merit. Does the benefits from such a law outweigh the costs of such a law (with benefits and costs involving a lot more than money). Such deliberations are the role of the legislature, not of the courts.
However, this is in the courts, because the plaintiffs are charging that there is a constitutional right to consensual sex of any stripe within the home. It is the proper role of the Supreme Court to decide if this is the case or not. The Supreme Court will not be deciding if there should be sodomy laws, but if there is the privacy right that they are arguing.
When you get into if there should be a law or not, my answer is that those are matters a legislature should decide, not courts.
Secondly, I see that Santorum is in effect, defending the anti-gay sex Texas law which tells me that he thinks it should stay on the books.I agree he probably thinks the law should stay on the books. But just be aware that not always does it follow that if someone argues against a particular line of legal reasoning that they want to support something; occasionally you will see the ACLU defending with legal arguments groups like the National Alliance. This does not mean the ACLU wants what the National Alliance wants.
I still don't get why he decided to compare adult consentual gay sex to incest and polygamy because that's apples and oranges.He didn't compare the two. He did point out that they share the same legal foundation- namely that the Constitution does not prevent a state legislature from passing laws regarding sexual conduct.
If he thinks gay sex is wrong he should just say it and stop beating around the bush with these other comparisons.Comparisons he has not made, but others have said he has made.
Thirdly, the whole 'privacy' argument should apply to all regardless of whether they are gay or heterosexual.That is his point. Either that right is there, and then all those other types of laws will face being struck down in the same manner, or that right isn't there, in which case they won't be.
If there is no right to privacy for gay sex then the same (stupid) rule should apply to heterosexual (including non-baby making type sex).What is the rule you are referring to? Because you are coming close to making the same argument Santorum is making. He is arguing, not that any rule should be equally applied, but any rule must be equally applied. And if the rule is "the state may not make any laws regarding sexual conduct in the privacy of one's home" then the rule must be equally applied and sodomy laws come down, as do incest laws, bigamy laws, adultery laws, bestiality laws.
Incest, polygamy, etc are not part of the argument except that santorium is trying to throw them in for some strange reason.He throws them in because the question before the court is "Does the state have the power to enact laws regarding sexual activity, even in the privacy of the home". The answer to the question before the court impacts all of those other things. That is why he made the argument.
If the court answers "the state has no such authority", then the ramifications are huge, and the ramifications touch each of the things Santorum listed. He wasn't saying gay sex and bigamy are the same. He was saying that the legal basis for laws regarding them are the same.
By my read, the Constitution does not forbid states from passing laws regarding sexual behavior. This is obvious to me, since there were dozens upon dozens of such laws on the books during the framing of the Constitution and in the decades that followed.
Should there be such laws? On that, I am torn. I am not convinced of the utility of the laws. I see a benefit in a society setting standards of acceptable behavior, but I also see a detriment in that when laws are enacted that are difficult to enforce and likely to be ignored you foster a culture of disrespect for the law. I am convinced that not every gay person is born that way; I am not convinced that none are. I know that I consider it to be sinful behavior, but everyone sins, and not every sin should be a crime. My ambivalence on the matter of laws of this stripe lead me to appreciate federalism. If California wants to have it be legal, but Utah doesn't, I am comfortable with it.
I do know that I think that incest SHOULD be illegal, as should bigamy, polygamy, and that adultery should have legal consequences in matters of divorce and separation, so I am very uncomfortable with the idea that the legal basis for such laws being struck down.
By my eyes, if the state cannot pass laws regarding sexuality, then prostitution laws, bigamy laws, incest laws, bestiality laws, and laws regarding the impact on adultery when it comes to divorce proceedings all are subject to the same legal attack. To me, that looks like fairly large ramifications, especially compared to the status quo, which is that certain areas have sodomy laws (and despite these laws, sodomy occurs).
we will have the jails full of lawbreakers of every color, creed, religious preference, and political offiliation.Seeing as the law has been on the books for a long time, and similar laws have been on the books in various areas for quite some time, and we have not seen jails filled with people charged with this, I don't think this assertion has merit.
If the question is over if there should be such a law or not, I believe the place that should be decided is in the legislature, not the courts.
My other point stands. You asserted the jails would be filled if this law stands. The law has stood, and the jails were not filled with people charged with it. You may think that even one person charged is too many, and you may be right (see my reply above to someone else on my opinion of sodomy laws). But to claim that suddenly there will be a homosexual gulag is just plain silliness.
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