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

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.

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.

No, you still don't get it.

Mem and women are prohibited from committing acts of sodomy...

Stop right there for a second. The act prohibited is "sodomy." You guys keep wanting to tack on "with members of the same sex" as if this makes the act of "sodomy" different. It's doesn't. It's still a mouth on genitals or however the act is defined. "Sodomy" is the same act: whether its for people of the opposite sex or people of the same sex. The act of "sodomy" is allowed for certain members of society but not for others. That's where the "equal protection" comes in.

See if you can wrap your head around this hypothetical: "Baptisms are allowed but they are only allowed for people of the Mormon faith." So all other people in other religions are not allowed to baptize. Clearly, not "equal protection."

Same thing here. The action (baptism/sodomy) is identical to both groups (Mormons vs Baptists/opposite sex participants vs. same sex participants). The only restriction on the law is the identity of the acting parties (Baptists/homosexuals).

If you don't get it by now, you never will.

And as it is discussed on this and other threads, some states which permit homosexual sodomy still make a distinction over the the age of consent for adults and minors to have sex.

Right and that's not "equal protection" either.

Some states permit heterosexuals to engage in intercourse, sodomy, what have you at say age 16 (and that includes a partner of age 18+) while holding homosexuals in violation of statutory rape laws for engaging in homosexual sodomy below the age of 18.

Again, not "equal protection", clear, obvious, irrefutible.

The act of "sodomy" is allowed for certain members of society but not for others. That's where the "equal protection" comes in.

The prohibited acts are listed under "homosexual conduct" in Texas law. Homosexuals do not have complimentary genitalia so the only way that they may copulate with a member of the same sex is to engage in homosexual sodomy.

Men who feel that they are homosexual are still permitted under the law to have heterosexual sodomy. That they are prohibited from engaging in homosexual sodomy is the law. Heterosexual men are also prohibited in engaging in homosexual sodomy (should they care to do so).

Male and female are genders and protected under equal protection. Homosexuals try to define their "gender" on a sex act and that holds no weight. There is no gender of homosexual male or homosexual female.

Again, not "equal protection", clear, obvious, irrefutible.

But rather than challenge the "unequal protection" (in your mind) of the age of consent laws in a state that already permits homosexual sodomy, they chose to challenge the notion of "equal protection" as it applied to persons who engage in homsexual acts in a state that does not permit acts of homosexual sodomy. And yes I still alledge that these men fabricated the situation under which they were "caught".

I guess that they got better PR pursuing this case in a "bigoted" state that prohibits homosexual sodomy than to pursue overturning cases of statutory rape against adults males who had sex with 16 year old teenaged males.

Each case could be pursued under the "equal protection" c;ause and be just as suitable to overturn the laws (if it is determined that homosexual sex acts are protected constitutionally).

And those who feel that Big Brother has no place in the bedroom would still have a case to embrace (although they might find it distasteful to support lowering the age of consent for adults and minors to engage in sex together).

This is ass backwards. Who are you saying would prohibit baptisms? Mormons claiming exclusive ownership to the concept of a baptism? (Don't laugh, the Scientologists do this with their "trade secrets").

Would the government in your farcical example permit Mormon baptisms but prohibit all others?

What about priesthood? A church that prohibits female ministers might be more fitting of the "equal protection" clause but because the state is not forcing this prohibition on female ministers it really doesn't strike as a parallel either; that would be more akin to the case where a golf club does not permit female golfers to join. Of course, there are health clubs that do not permit men to join and the NOW gang doesn't get upset about that.

The human consumption of horsemeat IS illegal in Texas. If a group of people identified themselves as "horse eating carnivores" or "horse eating ominvores", would they be protected constitutionally in their desire to eat horse meat? (And yes horses are currently slaughtered in Texas for consumption in Europe so they would be able to procure their desire without violating any animal rights that aren't already being violated).

Can someone define their persona as a horse eater? Sure they can eat cow, chicken, fish, or carrots just like all other Texans but they choose not to.

Homosexuals do not have complimentary genitalia so the only way that they may copulate with a member of the same sex is to engage in homosexual sodomy.

*thunderbolt* Woah, that was a revelation.

Why would homosexual men want to have heterosexual sodomy? More to the point, why does every single argument against homosexuality always talk about in it terms of gay men, only?

Homosexuals try to define their "gender" on a sex act and that holds no weight. There is no gender of homosexual male or homosexual female.

Wrong. Ask any homosexual what gender they are and they'll tell you "male" or "female."

Yeah, and?

And yes I still alledge that these men fabricated the situation under which they were "caught".

Fabricated or not, they were still prosecuted and that's why the case is in front of SCOTUS.

Maybe. Doesn't de-legitamize their cause, in my eyes.

Each case could be pursued under the "equal protection" c;ause and be just as suitable to overturn the laws (if it is determined that homosexual sex acts are protected constitutionally).

And rightfully so, says I.

So the thrust of this post is that this case was a calculated strategy, a set-up in a "bigoted" state to open the courts doors to address other issues relating to homosexual issues under the "equal protection" rubric, is that your point?

Whatever, calculated or not, homosexuals are clearly denied "equal protection" under this law and laws governing age of consent. Clear as crystal.

Ok, last response...

Who are you saying would prohibit baptisms?....Would the government in your farcical example permit Mormon baptisms but prohibit all others?

Yes, that's what I'm saying. My fictional (not farcical) scenario would involve the gov't permitting Mormon baptisms but prohibitting all others, yes.

*shakes head* No, a church is a private organization and can make its own internal laws and regulations however it sees fit. We're talking government/state laws, here.

that would be more akin to the case where a golf club does not permit female golfers to join. Of course, there are health clubs that do not permit men to join and the NOW gang doesn't get upset about that

See above. Your mixing apples and oranges.

Well, here's something new to chew on at least: the hierarchy of animals in law. "Horse-eaters" can always eat dog food (which is made of horse meat). But you know what? If someone wanted to kill their own horse and eat it, I don't have a problem (legally) with that (and I love horses.) Dogs and cats, though...mmm I dunno. I guess "Some animals are more equal than others." (couldn't resist, George!) I don't know why horsemeat is illegal for humans to eat. It's a fair question, I'll give you that.

(And yes horses are currently slaughtered in Texas for consumption in Europe so they would be able to procure their desire without violating any animal rights that aren't already being violated).

Are they really? Blech. Again, the whole issue of regulations on eating is an interesting one and you've given me food for thought. *ahem*

Can someone define their persona as a horse eater?

I don't see why not.

Sure they can eat cow, chicken, fish, or carrots just like all other Texans but they choose not to.

Your "horse-eaters" analogy is an interesting one, at least. Are they not protected under the 14th Amendment? Can I put that one on the back burner and think about it? Bada-bum.

But actually it's kind of a false rhetorical. The correct supposition is this: Is horse-eating legally denied to everyone, or just certain segments of the population? If the latter, then, yup, "equal protection" violation.

I see why you chose "horse-eating" since it's a matter of "taste" and "preference" and homosexuals' taste and preference are clearly the same sex. This is the critical flaw in choosing "horse-eating" though: let's replace "horse-eating" with..."men-eating". The "dish", as it were, in the Texas sodomy law is allowable under law to women but not to men. Hence, "equal protection" violation. Make sense?

Describe "why" homosexual sex is constitutional.

Nope, that's not the argument here. The argument is whether the Texas sodomy law is "unconstitutional" because it allows punishes certain people for one kind of behavior, while letting other people engaging in the exact same kind of behavior get away scot-free.

If homosexuality is not a sexual gender, then where does the equal protection come from? Is it a race?

It is neither a "gender" nor a "race". It is a behavior that is usually ascribed to persons who are of the mindset to practice it. Not unlike "receiving Holy Communion" is a behavior ascribed to persons who are of the mindset to practice it, namely Roman Catholics.

If you are looking for a close equivalent to a class that is already protected by "equal protection", it would come closest to religion. They are both mindsets/sets of beliefs with specific practices related to those beliefs. To boot, both are "changeable" and are not fixed beliefs/behaviors.

Your religious example held so little reality that I considered it a farce.

*shakes head* No, a church is a private organization and can make its own internal laws and regulations however it sees fit. We're talking government/state laws, here.

Can a church prohibit interacial marriages now? (No.) Can a church prohibit homosexual ministers from serving? (Yes.) Can a church prohibit homosexual union ceremonies? (For now, yes.)

If homosexual marriage is legalized, could a church refuse to marry a homosexual couple?

--------

Horse eating is denied to everyone but every can eat the same meats(beef, pork, venison, fish, fowl... they don't even have to prepare them the same way). Homosexual sex is denied to everyone but everyone can interlock with members of the opposite sex.

I see why you chose "horse-eating" since it's a matter of "taste" and "preference" and homosexuals' taste and preference are clearly the same sex. This is the critical flaw in choosing "horse-eating" though: let's replace "horse-eating" with..."men-eating". The "dish", as it were, in the Texas sodomy law is allowable under law to women but not to men. Hence, "equal protection" violation. Make sense?

Same sex sodomy is prohibited for both men and women under Texas law.

There is nothing "sacred" about homosexual sodomy. It can be criminalized just as certain meats are criminalized. You may argue that it isn't fair that you can eat cow but not horse (or dog) but to claim that horse eaters aren't given equal protection is false.

Homosexuals define their identity with their desire for the illegal sex act itself. That doesn't make it a protected class under "equal protection". Men can have sodomy with women and women can have sodomy with men.

I've stated this several times in my posts to you so I know that you've read it: homosexuals can only fornicate with members of the same sex by committing homosexual sodomy. Homosexual sodomy is outlawed for all.

The argument is whether the Texas sodomy law is "unconstitutional" because it allows punishes certain people for one kind of behavior, while letting other people engaging in the exact same kind of behavior get away scot-free.

They are "similar" behaviors but not the same behavior. Men interconnecting with women fit differenly than 2 men connecting or 2 women. The law is scoped that only one of these 3 pairings is acceptable (and that is the pairing that includes both a man and woman).

If the law only permitted 2 men to commit sodomy you'd be able to make your case since there would be no option for women to participate in sodomy (with another woman or a man).

Science (and the legal definition) prohibits members of the same sex from engaging in sexual intercourse ("Sexual intercourse" means any penetration of the female sex organ by the male sex organ.). Is that somehow unconstitutional too? Better team up with that guy from The Life Of Brian who wanted to give birth to babies, he declared that it was his right as a man.

If you are looking for a close equivalent to a class that is already protected by "equal protection", it would come closest to religion.

So much for the claims among the homosexual agenda crowd that it is "genetic". You put it under a belief system.

Some gourmands might claim that their faith in fine dining is being infringed on by preventing them from eating horse (and they could hold up all sorts of genetic data to show how close a horse is to a cow or deer).

Doesn't make it a relgion though (even Scientology existed for decades before President Clinton's administration officially recognized it).

Your religious example held so little reality that I considered it a farce.

That's why I called it a "hypothetical".

Can a church prohibit interacial marriages now? (No.)

Of course they can. They just choose not to. Example: Orthodox Hasidic churches only allow marriages amongst their own members.

If homosexual marriage is legalized, could a church refuse to marry a homosexual couple?

Absolutely. Churches, as organs of religion, have full liberty to decide what and what they cannot or should not do.

You are clearly equivocating prohibitions on horse-eating with homosexual sex when I pointed out the flaw in this parallel in the my next paragraph you cite...

"I see why you chose "horse-eating" since it's a matter of "taste" and "preference" and homosexuals' taste and preference are clearly the same sex. This is the critical flaw in choosing "horse-eating" though: let's replace "horse-eating" with..."men-eating". The "dish", as it were, in the Texas sodomy law is allowable under law to women but not to men. Hence, "equal protection" violation. "

Same sex sodomy is prohibited for both men and women under Texas law.

You completely missed my example. Let me illuminate it all ways:

Dish A: horsemeat, but only for cowboys, not for cowgirls. Dish B: pork, but only for Jews, not for Buddhists.

"Equal protection" violation, both examples.

Dish C: women, but only served to men. Dish D: men, but only served to women.

"Equal protection" violation, both examples.

Same sex sodomy is prohibited for both men and women under Texas law.

You're making the same error in logic. Over and over again. "Same sex sodomy" is not one undifferntiated dish, like horsemeat or pork or parrot. "Fellatio" is the dish. "Cunnilingus" is the dish. "Anal penetration" is the dish. The "same sex" describes the participants not the "dish."

There is nothing "sacred" about homosexual sodomy.

Who said anything about "sacred"? That's not even germane to this discussion, a discussion, I'll remind you about secular, non-religious, state law. Not canonical law.

[Homosexual sodomy] can be criminalized just as certain meats are criminalized. You may argue that it isn't fair that you can eat cow but not horse (or dog) but to claim that horse eaters aren't given equal protection is false.

Same logical error, once again. "Homosexual" describes the participants. "Sodomy" describes the dish.

Men can have sodomy with women and women can have sodomy with men.

I'm getting very tired of this.

And I've pointed out several times where your logic is in error, but you do nothing to refute my logic.

You don't get, you won't get it, we're both parrots, so just forget it, because we're both beating a dead horse, and no one wants to eat horsemeat, except the Europeans, of course.

Yes they are, it criminalizes an act they call "deviant sexual intercourse" for some adults, and allows it for others.

Statutory rape laws do not say (in spite of the age difference between legal consent age in some States) that it's only statutory rape when it couples people of the same sex, and not people of different sexes.

Statutory rape laws are consistent in the fact that it punishes all people who engage in a sexual act with a minor regardless of the sex of the individual's involved.

Texas sodomy laws create a crime, "deviant sexual intercourse", then go on to say that it is perfectly fine for some people to engage in "deviant sexual intercourse", but not for others.

Texas does not have a sodomy law, they have an anti-homosexual law. A sodomy law would make sodomy illegal in the State of Texas for all the citizens of that State.

Imagine that the State of Texas creates a law that labels the act of burning the American flag "treason against the United States", but only if the flag is burnt by a registered Republican, but it's not a crime if you are a registered Democrat.

According to you, that law would be consistent in the fact that it makes burning the flag a crime for all Texans who choose to register as Republicans, in spite of the age, gender, sexual orientation, or religion of the individual.

Would you consider that a just law and defend it?

Check out the 9th for the necessity to enumerate rights.

You completely ignore our entire legal tradition. The Ninth Amendment cannot be used to create new Constitutional rights that our 500-year-old body of legal history has NEVER recognized.

The founding fathers did not see any problem with the sodomy laws enacted in nearly every state. Sodomy laws were not even remotely controversial, and did not--unlike slavery, for example--contrast with anything contained in the Constitution, Declaration or other founding documents, or the writings and conversations of the Founding Fathers.

If you want to live in a libertarian society, go somewhere else. We have a constitution, rule of law and legal tradition in this country. We're not supposed to be ruled by just whatever any judge can pull out of his a$$.

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