Santorum is Right, and You Should Be Supporting Him: An Explanation of Lawrence v. Texas

Serious Vanity | 4-26 | TOH

[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.

[sinkspur]

If everyone were as progressive as you, tpaine, beastility wouldn't be such an ugly word.

Do you honestly believe there are hordes of people just waiting for bestiality laws to be repealed so they can run out in their yards and have sex with the family collie?

There's no bestiality law in Texas, and I'm not aware of veterinarians having to treat sore-butted boxers.

[Jhoffa_]

You got it! Prohibitory decrees about 'sinning' are not "due process".

They were run through the judicial process, have right's to appeal and to representation, reasonable bail, etc.. They got "due process" In fact, this case going before the SC is proof of that.

After all; -- Constitutional amendments were required to resolve the 'sin of boozing' question.

Yes, at the Federal level. However it was previously outlawed at the state level, without any constitutional problems.

[tpaine]

If everyone were as progressive as you, tpaine, beastility wouldn't be such an ugly word.
434 -kc-


Kevin, if you live in a 'bestiality' state, anyone having sex with you could be prosecuted.

[tpaine]

Juries can nullify laws now..
435

Not 'permitted' in most states, or in federal courts.

Another sad comment on our system.

[Jhoffa_]

Do you honestly believe there are hordes of people just waiting for bestiality laws to be repealed so they can run out in their yards and have sex with the family collie?

To be honest? Yes.

There's the Larry Flynt (<- The self avowed chicken screwer) wanna-bee's and their online porn sites.

Certainly, I can easily see "models" being recruited for this kind of thing..

[Jhoffa_]

I will agree with you there.

I don't think nullification is automatically a bad thing.

[weegee]

What the hell does that have to do with the price of tea in China?

Fornication laws against unmarried consenual sex did exist in this country. Whether they did then or now does not support your claim that this homosexual sodomy law is unconstitutional. They were not thrown out by the courts, they were overturned by the legislatures.

[tpaine]

The Supreme Court should not meddle in what the states should legislate. This point seems to lost on most of the mass media discussion.
Again, it's up to Texas, and the other states. If the law needs to be changed, the gay lobby should work on getting the state legislatures to do so.
-- Joe 437


Some state legislatures are meddling with the RKBA's. Should the USSC stand aside while the gun lobby 'works'?

[weegee]

I believe that I read that Texas' original sodomy law prohibited beastiality as well (as an unnatural sex practice).

I'd also read that it was still prohibited after the 1973 change that made acts of sodomy between a man and a woman legal in Texas.

Do you have evidence that Texas dropped their beastiality law?

[sinkspur]

Whether they did then or now does not support your claim that this homosexual sodomy law is unconstitutional.

I don't know if the homosexual sodomy law is unconstitutional or not, and I've never said otherwise; that's why it's at the Supreme Court.

I predict that it will be thrown out, however, as there is already existing rulings that another state's law was constitutional.

[Capitalism2003]

off topic...This poll needs FREEPIN!!!

http://www.alexa.com

Are Bush's proposed tax cuts too big?

It's at almost 70% yes!!! The DU morons have been working it all day.
Let's go!

[sinkspur]

Do you have evidence that Texas dropped their beastiality law?

Only what I've read here; Fareed Zakaria on Stephanopoulous' show this morning said that the Texas bestiality law was explicitly repealed.

But that's all I know.

[tpaine]

After all; -- Constitutional amendments were required to resolve the 'sin of boozing' question.
-tpaine-

Yes, at the Federal level. However it was previously outlawed at the state level, without any constitutional problems.
442 -Jh-


Not true. States can ~reasonably~ regulate the public sale & use of booze. -- Outright prohibitions on possession violate due process.
- And attempts to enforce private possession violate other amendents.

[Jhoffa_]

Outright prohibitions on possession violate due process. - And attempts to enforce private possession violate other amendents.

I do not agree. The tenth makes it clear that other right's & privilidges fall to the states and the people of those states. Prohibition at the State level would hardly be unconstitutional.

Regardless, I have no desire to get into a pot & alcohol, prohibition debate. Those things are constantly raging in the backroom and I (typically) avoid them.

[WOSG]

The case was a set up. A gay lover of one of the men called the cops. The door was left unlocked. They kept having anal sex even after the police entered the bedroom. They could no more refuse to book them for the crime then they could if the men had been smoking crack. This is a job for the legislature to decide, not the courts. The men wanted a test case to raise up with challenges. The 2 men having sex were given a $200 fine. The man who made the false phone call was sentenced to 30 days. 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).

What about federal courts refusing to hear these kinds of 'forced conroversies'? There are a few cases where sodomy law has been enforced in Texas in recent decades, but only cases like public lewdness, ie, trying to bust up gay meet/sex markets in public parks after hours.

[WOSG]

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.
393 -OH-


Nope, that's backwards.
The point is, these laws violate our BOR's.
-tpaine

Those who assert the above have the words of the constitution against them, legal history against them, and santorum's point to overcome: namely, that a broad 'privacy right' that covers sodomy covers all manner of sex acts. It still hasnt been refuted by those arguing in favor of 'gay rights' position.

I think we ALL agree on one thing (or should): Flawed Constitutional interpretation can never be justified, no matter how 'noble' one might consider the result - one way or the other.

[WOSG]

The 14th was ratified in order to give negroes rights as citizens over objection of the former confederacy. That is all. Attempts to create some more expansive form of social engineering, attempts to use the 14th to interpret the US Constitution to be economic libertarian (eg Lockner) or social libertarian (eg Roe v Wade) have all been outside the scope of the original intent of the 14th amendment.

Likewise, this attempt would shock and confound all those states and those legislators of the late 1860s who passed the 14th while maintaining and continuing laws on sodomy.

I tis well outside the scope of the 14th, as they would not consider in any way shape or form some "individual right" to arbitrary sex acts.

[tpaine]

Outright prohibitions on possession violate due process. - And attempts to enforce private possession violate other amendents.
I do not agree. The tenth makes it clear that other right's & privilidges fall to the states and the people of those states. Prohibition at the State level would hardly be unconstitutional.

Regardless, I have no desire to get into a pot & alcohol, prohibition debate. Those things are constantly raging in the backroom and I (typically) avoid them.
454 -Jh-


These 'debates' are all about, in essence, the same principle.
Prohibitional laws at the State level are unconstitutional. They violate due process, at least..

The best opinion on this whole issue is here:
           In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9.

As the second Justice Harlan recognized:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.

This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.

  It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777


Thus, we see above that due process ~should~ protect us from ALL "sin" laws, which are indeed "substantial arbitrary impositions and purposeless restraints".

Damn shame that it doesn't.

[weegee]

A quick search of Google turned up this list of laws.

Texas defines sex 3 ways:

"Deviate Sexual Intercourse" is contact or penetration of the mouth or anus by a anothers genitals or an object,

"Sexual Contact" is "...touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire...", and

"Sexual Intercourse" is "penetration of the female sex organ by the male sex organ".

(Homosexuality)
Sec. 21.06 Under this definition "Deviate Sexual Intercourse" with a person of the same gender is a Class C misdemeanor.

(Beastiality)
Sec. 21.07 Any of the above acts with another person and any of the above acts with an animal in public is a Class A misdemenor.

So it is possible that fisting would also be included under deviant sexual practices (placing an object in...)

Texas still has a prohibition on beastiality contrary to the claims of this list of "beastiality laws" claims that Texas has none (warning this site had a banner ad for butt-plugs when I went to the site).

The answer can be found HERE:

http://www.capitol.state.tx.us/statutes/pe/pe0002100.html#pe003.21.07

Texas penal codes CHAPTER 21. SEXUAL OFFENSES

§ 21.07. Public Lewdness

(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;

(2) act of deviate sexual intercourse;

(3) act of sexual contact; or

(4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.

(b) An offense under this section is a Class A misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

Regardless of what Andrew Sullivan and others have said, there is currently law against beastility in Texas.

[WOSG]

"I've read that; I don't dispute it. But the cops did NOT HAVE TO ARREST THEM. If this had happened in Dallas, they wouldn't have, Santorum wouldn't have said what he said, and we'd all be talking about something else."

Here in our part of Texas (Austin) our county's sherriff is a lesbian. go figure. now, if the above is true, it begs a question of motivation for the arrest: If these gay men WANTED to be arrested, what would frustrate them more would be NOT arresting them nor taking them to court. I wouldnt put it past our own sherriff's dept to conspire with a political group in order to get it into a court test case. just a thought.

"There's lots of bad stuff going on out there that shouldn't be turned into crimes."

No doubt. And a lot of attempts to get an unenforced law enforced in order to make a federal case where there should be none.