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.

[Luis Gonzalez]

But Jimmy, Texas itself creates that classification in their statutes. That's been at the very heart of my entire argument here.

If Texas simply outlawed sodomy, this fight may have never ensued.

One last thing, how do citizens challenge what they believe to be unjust/unconstitutional laws?

Are individuals to be left without recourse in the face of the majority views?

Are we a nation built on the principles of individual rights, or are we governed by the will of the mob?

[Jhoffa_]

I just don't see anything unconstitutional about State/Local & Community standards with regard to sexual behavior.

Vermont doesn't have a problem with this, that's fine. Texas does, afaiac that's fine also.

I just fail to see the constitutional problem here.

Are we a nation built on the principles of individual rights, or are we governed by the will of the mob?

By the same token, are those on the local level to be subjected to the tyranny of the minority in every respect?

We have a bill of right's that re-affirms basic protections. However, these laws have been on the books and have been upheld since the time of our founding.

Again, I fail to see the Constitutional issue here.

[weegee]

The law you are talking about simply sets the age of consent for boys at a different age than it does for girls.

Brrt. Wrong. I used an adult male in my above example but an adult woman may have sex with a 16 year old boy if she wants (and there have been a number of cases of female teachers bedding their students and even getting pregnant from the union) and an adult woman is prohibited from having sex with a 16 year girl if she wants.

[narses]

Where's the "equal protection" argument here -- http://www.freerepublic.com/focus/f-news/897537/posts -- only certain people can cut off another guys nuts, at least legally, in Michigan. This poor guy (Suo-Shan Wang) was simply denutting another consenting adult in the "privacy of his own home" and those homophobic bastards in Michigan THREW HIM IN JAIL! What were they thinking?

[Jhoffa_]

Get the government out of our bedrooms!!

[Luis Gonzalez]

"Homosexual is not a "classification" of person anymore than horsemeat eating is."

If that's the case, then why does Texas draw a distinction between a homosexual person, and a heterosexual one?

They do it by creating a law that seeks to ban "deviant sexual intercourse" for homosexuals, and not for heterosexuals.

So, it's either a classification, and laws are enacted criminalzing "deviant sexual intercourse" strictly between homosexuals (that infamous non-existent classification), or it's not, and laws are enacted that make "deviant sexual intercourse" forbidden for all citizens.

You can't have both.

[Luis Gonzalez]

What is the legal age of consent for a male in Texas?

What is the legal age of consent for a female in Texas?

[weegee]

If that's the case, then why does Texas draw a distinction between a homosexual person, and a heterosexual one?

What you refer to as a "homosexual person" is simply a person who "engages in homosexual conduct". One is an action, the other is a "classification". Texas law outlaws the action.

[Luis Gonzalez]

Also, how can there be a legal age of consent for homosexual intercourse in Texas, when adults are not allowed to have consensual homosexual sex at all?

[weegee]

In Texas, as that chart I posted a link to earlier showed, is 17 (for both men and women).

You may note that the statue defines statutory rape as being an adult with a minor below age 17 (age of consent) and explicitly includes same sex pairings. This is not to acknowledge to legality of such pairings, but rather to prohibit a possible loophole for those who commit statutory rape. I'll leave it to you to look up one of those states I identified that permits homosexual sodomy but sets a higher age of consent for homosexual activity.

Here is the code:

§ 21.11. Indecency With a Child



(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:



(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or



(2) with intent to arouse or gratify the sexual desire of any person:



(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or



(B) causes the child to expose the child's anus or any part of the child's genitals.



(b) It is an affirmative defense to prosecution under this section that the actor:



(1) was not more than three years older than the victim and of the opposite sex;



(2) did not use duress, force, or a threat against the victim at the time of the offense; and



(3) at the time of the offense:



(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or



(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.



(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:



(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or



(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.



(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.



Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., p. 472, ch. 202, § 3, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 1028, § 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

Amended by Acts 1999, 76th Leg., ch. 1415, § 23, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 739, § 2, eff. Sept. 1, 2001.

[weegee]

READ CLOSELY. Your mind may be closed on this matter but I was referring to other states where sodomy was already legal (like Nevada and New Hampshire).

Round and round and round and round. Catch your tail yet?

[MHGinTN]

I'm still wondering why you wise folks haven't seen that even allowign this case tro go to the high court for adjudication affords status to a class of behavior defined people, giving them the status of a minority--which they have no business being defined as--and insuring that homosexuality as a chosen behavior will thereafter be granted all the protections (based on their chosen behavior) of any actual minority. I don't understand the vigor in defending homos as a minority, like racial minorities, when they are defined (they do it) by their chosen deviant behavior!

[Luis Gonzalez]

"The law targets activity, not orientation."

No, you have that backwards.

The laws criminalizes what it calls "deviant sexual intercourse", that being genital/oral/anal contact, but only between same sex, not between different sex couples. If you were right, "deviant sexual intercourse" would be illegal for everyone, regardless of orientation.

[george wythe]

Texas Penal Code

§ 21.06. Homosexual Conduct

(a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.

(b) An offense under this section is a Class C 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

In case you don't know what deviate sexual intercourse is:

§ 21.01. Definitions

In this chapter:

(1) "Deviate sexual intercourse" means:

(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object.

[george wythe]

If a guy is having a threesome with two women, and one of the women uses a toy to stimulate the other woman, she will be arrested.

The guy can use the sex toy to stimulate any of the women, but neither of the women can stimulate each other with the sex toy.

Who has time to think these weird laws?

[tpaine]

[Our rights to a private life, liberty, and private property] -- were first recognised in our constitution, then reiterated in the 14th.

Let's see the text. I read it, and I don't see any such right.

I dont have to steenking show you, hombre... All rights need not be enumerated, nor could they be. - Too many.. Get logical.

And why was the right to any private sexual behavior never recognized before by the federal government or any state government?

Because the FF weren't that stupid? Privacy in a 'mans castle' in those days was an obvious right, one that had been violated by the quartering of soldiers.. Thus the 3rd amendment..

Are you two really this dense on the issue, or are you just nitpicking on word games again?
- Either way you're playing the fool, denying your own right to a private life.

[Jhoffa_]

I'm still wondering why you wise folks haven't seen that even allowign this case tro go to the high court for adjudication affords status to a class of behavior defined people, giving them the status of a minority--which they have no business being defined as--and insuring that homosexuality as a chosen behavior will thereafter be granted all the protections (based on their chosen behavior) of any actual minority.

I made that point early on in refrence to homosexual marriage.

[Luis Gonzalez]

We are not talking about Nevada here. If you want to discuss what other States do in relation to this issue, then we will discuss the States that have already found these sorts of laws to be unconstitutional.

The State of Texas mucked up the waters and opened the doors to challenges by their wording of this law.

[Jhoffa_]

Who has time to think these weird laws?

Likewise, who put's so much thought into deviant scenarios which might violate them?

[Luis Gonzalez]

Because the law itself created the classification, and gives weight to the argument. Criminalize sodomy for every one and the quagmire goes away