Posted on 04/26/2003 12:28:27 PM PDT by The Old Hoosier
With the recent publicity surrounding Sen. Rick Santorum's remarks on the issue of sodomy, almost everyone on FR must be familiar by now with the Supreme Court case Lawrence v. Texas.
Petitioner Lawrence and his special friend are trying to overturn a Texas law against homosexual sodomy.
There are two issues in this case:
1) Is there a constitutional right for any two adults to engage in any kind of consensual sex, as long as it's behind closed doors? The petitioners say yes, there is, and are asking the court to agree.
2) Does it violate the 14th amendment's guarantee of equal protection to outlaw homosexual sodomy, but not heterosexual sodomy, as the Texas law does? In other words, should sexual orientation become a specially protected category under the 14th amendment--along with race? Again, the petitioners say yes.
If you do not think that this affects you, you are wrong. Depending on the outcome of this law, gay marriage could become the law of the land, without any legislation or reference to any democratic process whatsoever. Also, if you run a daycare center, you could be sued for refusing to hire a homosexual. You could eventually be driven out of business because of your religious beliefs.
It could get even worse. A bad decision could go far enough to invalidate state laws against prostitution. Consensual incest and polygamy would also become a constitutionally protected activity, as Santorum recently pointed out, referencing the same argument in the last major Supreme Court case on sodomy, Bowers v. Hardwick (1986).
Just as with abortion in the post-Roe period, there will be no political solution once the decision is made. Your vote will make no difference on this issue if the Supreme Court decides, by judicial fiat, to elevate sexual activity and/or sexual orientation to a special, protected class of activity.
You may even oppose sodomy laws and think they are antiquated and unevenly enforced. You may even be gay. Well, fine. If you want to repeal sodomy laws, go pass a law, do not let the Supreme Court take away the people's right to self-rule. Even if you are a homosexual libertarian from the Cato Institute, you should want us to arrive at libertarian policy decisions through democratic legislative proceses, not through dictatorial impositions from an unelected court.
That's why even you, whoever you are, should be pulling for Texas in this case. That's why you should write a letter to the White House asking President Bush why he did not file an amicus brief with the court in favor of Texas, as he did in the affirmative action case earlier this year.
Most likely, everything will hang on the decision of Justice Kennedy. If he votes to classify sexual orientation as a category protected by the 14th amendment, then immediately suits will pop up, citing this case, demanding homosexual "marriage" on the grounds that hetero-only marriage laws discriminate against people on the basis of sexual orientation. It could happen right away or after a short time, but soon homosexual marriage will be imposed on all 50 states as a result of such a decision. The only way to stop it will be a constitutional amendment, which is not likely or easy to do.
If the court also rules that there is a right to all private, consensual sex, then there will also be no basis for state laws against consensual incest or polygamy, as Santorum pointed out--or even prostitution. The logical conclusion will also be to legalize drug cultivation and use within the home, not just marijuana but also methamphetamines. Not even the most hard-core drug-legalizer, if he is sane, would argue that the constitution actually guarantees a right to grow and use drugs in one's home.
The court might come up with some bogus justification for not striking down all of these laws right away, but that won't last long. Sooner or later, a future court will use this case to strike down all state laws against anything whatsoever that is done in private, regardless of the harm it does to society.
This case should be rather frightening for anyone who believes in the constitution and the rule of law.
Write your congressmen and senators, as well as the President, and tell them you want them to save the constitution. Tell them to refuse to accept a Supreme Court ruling that elevates disgusting acts of sodomy above real constitutional rights such as gun ownership and freedom of religion.
A straightforward statement of the law. I believe it would be even more clear if the loaded and unnecessary term "homosexual" were simply dropped out or replaced as follows: "If [a man] does not wish to have oral or anal sex with a woman, it is not the court's fault. [A man] is free to have sex with [a woman] and not be prosecuted. Thus the man is not facing unequal protection of the law. [Male-male and female-female deviate sexual] acts are prohibited; [male-female deviate sexual] acts are not. This is the distinction of the law."
Under the law the terms "gay," "lesbian," and "homosexual" mean absolutely nothing. It is certain specified acts of male-male or female-female sexual behavior associated in the popuar mind with those terms that have meaning. But until and unless such an act is committed, there is no offense. Any man or woman who calls him or herself a "gay" or "lesbian" is at best merely serving public notice that he or she is or may be inclined to ignore or disobey that law.
"If [a man] does not wish to have oral or anal sex with a woman, it is not the court's fault. [A man] is free to have sex with [a woman] and not be prosecuted. Thus the man is not facing unequal protection of the law. [Male-male and female-female deviate sexual] acts are prohibited; [male-female deviate sexual] acts are not. This is the distinction of the law."
But what is the reason for the law?
You brain is in a deep, weary rut. Pull it out.
The law addresses men and women--ALL men and ALL women. It does not define and carve out a separate class called a "homosexual." You are doing that--not the Texas legislature. You are creating a suspect class whole-cloth so you can claim it is being discriminated against. You are employing a classic strawman argument but with a twist.
Again, Texas law makes it unlawful for any man to have deviate sexual contact with any other man; and for any woman to have deviate sexual contact with any other woman. There are no exceptions. Every man and every woman is being treated EXACTLY the same.
Now, I expect you to fall back into your gay strawman argument again. You have so far shown insufficient mental horsepower to think the law through logically as written (i.e., without adding your own private legislative definitions and amendments to it).
Your brain is weary because you are forcing it to come up with one after another logical fallacy, such as making it conform itself to the idea that a law addresses all men and all women but not if they are homosexuals, and not if they are heterosexuals.
You then come back and try to get your tired, old brain to believe that "gay", "homosexual", or "lesbian" means nothing in the eyes of the law, but force it to think that the same sexual act, sodomy, between heterosexuals is somehow not "deviant sexual intercourse", but is in the case of "homosexuals", "lesbians", or "gay" pairings.
You would have to study the legislative history behind the law, but typically these laws were written because such deviate sexual acts were considered to have destructive effects on public morals, order, and decency, leading to assaults and physical injuries, deterioration of neighborhoods and city areas requiring increased policing costs, the spread of STDs and other disease. Whether you agree with such rationale is not the point. The point is, they are fairly debatable and the place for fair debate on such points is in the state legislature--not in the SCOTUS.
So, Texas is saying that all these issues are exclusive to same-sex sodomy?
In oter words, these effects are not present in heterosexual sodomy?
The reason for the law is a bias against a subclass of citizen created by a definition that holds heterosexuals blameless for the very act that it criminalizes for homosexuals.
Either sodomy is illegal for all, or for none.
The right to legislate is laid out in the Tenth Amendment and it places no such restrictions on the people and elected officials of Texas to establish community standards based on any number of criteria.
Your point is well taken however.
Perhaps they reasoned that homosexual sodomy would spread STDs more quickly, I have no idea.
The point is, if it's bad policy, you can change it politically, not through judicial activism and the creation of rights/privileges that do not exist. If you agree to take the latter road, you will bring our nation to ruin before you know it.
I only 'fling it' at true statists like you curry. The FF wrote our greatest non-statist document, one which you cannot abide.
You might have been jailed for any of a variety of offenses in 1790 America that you now claim as "inalienable" rights.
They were rights then, just as they are now. -- And they were violated then, just as they are now. Small minded curry type bluenoses will always be with us, pandering their sociaist statist schemes to willing fools.
Certainly they could have. The Dallas police WILL NOT arrest homosexuals for sodomy, even in flagrante, in a private residence, even if the officers witness it. It is a policy of the department and the Dallas DA has signed off on it.
Only public lewdness, heterosexual and homosexual, will result in arrest.
Believe in a boogeyman looking in bedrooms if it makes you feel more confident in your position. You are being played by these homosexual activists (within a week of their arrest they discussed challenging the very nature of this law).
I'm being "played" by no one. I don't believe in selective law enforcement, and I don't believe in non-enforced laws on the books, kept there only because legislators fear the wrath of interest groups if they were to repeal them.
Remember, these laws have been on the books, have been upheld and are only now being called into question.
As Kevin said, many of the things now being claimed as a "right" would not have been tolerated by the framers.
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