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.
So the Supreme Court based the Bowers decision on a law that was unconstitutional on its face?
If Georgia has an express right to privacy, how did this law survive as long as it did?
Gonna have to look at this a little more, as something's missing.
So the Supreme Court based the Bowers decision on a law that was unconstitutional on its face?
Poor sinky, it wasn't "unconstitutional" based on the US Constitution and that's the issue. When will you have time to posit your non-Catholic answers to my simple questions?
There's a difference between consensual private acts between consenting adults and the very public institution of marriage.
So define them. Defend them against the 14th Amendment and the soi-disant "right to privacy" you embrace. Go ahead.
But it was unconstitutional in Georgia.
Never saw your questions.
Yet.
You bet, and more will be coming if this decision comes back wrong.
If only those priests had waited a bit longer to get caught, they could have argued that they were engaging in a constitutionally protected activity. We do have a sitting justice on the court who wants the age of consent lowered to 12.
The way of the Left is exactly as you say -- to circumvent the democratic legislative process through which they surely lose, by going back door (no pun intended) via the nine SC justices.
Saturday, April 26 and no Sinkspur predicted Santorum apology. We'll check in again tomorrow and see if it occurs.
A conclusion that is devoutly to be wished, by anyone who genuinely respects individual liberty ... and that is already recognized by the Ninth and Fourteenth Amendments ... and that is exceedingly, and unfortunately, unlikely.
In any event, the removal of such differentiation under the law is akin to outlawing Jim Crow restrictions as to race, not "creating a protected class." It involves a restriction that is placed upon one class of persons being removed, not a privilege that is granted to such a class.
What this does as to federalism is indeed problematic -- but we have the Fourteenth Amendment, and an entirely reasonable case can be (and has been) made that setting up penalties for one class of people as to consensual acts is not "due process of law."
He likely won't apologize. In fact, he should say nothing more about this.
I predicted that he would, but I was wrong, as I frequently am.
Still, this was a distraction the GOP did not need.
It's called "precedent." The next case before the court will be decided based on this one. If they use logic, they could use Lawrence, depending on how it is decided, to strike down laws against everything from private drug use to bestiality.
This is what Sink and many others have not grasped here yet: If the Supreme Court makes a constitutional ruling striking a law, it is NOT the same as a repeal of that law. A repeal, in addition to being a democratic process, applies only to THAT PARTICULAR LAW. A SCOTUS ruling, on the other hand, is an ABSOLUTE, UNIVERSAL ruling that will have much broader implications.
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