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.

[tpaine]

Unethical pandering politicans will pass unconstitutional laws that will get them votes..
Which is exactly why we have a bill of rights, which supposedly stops them from such violations.

[george wythe]

I really don't know the reason why this law will be overturned, but I suspect it will.

Looking at the US Supreme Court as a disinterested party, my betting skills tell me that the US Supreme Court will not take a case to just reaffirm a previous case.

Nevertheless, I could lose my bet, which is that the US Supreme Court will overturn the Texas law by a 6-3 margin.

(BTW, I wish the US Supreme Court had not taken this case, since in my humble opinion, this should be a state issue, but I have to admit that not everyone thinks like I do)

Which is your prediction for the outcome?

[tpaine]

The right to self defense is not enumerated.
Most rights aren't, and don't need to be, among rational men.

[weegee]

Was Thomas Jefferson pandering?

[weegee]

I'm not like Gene Dixon or Criswell. I don't make predictions on the future but your scenario sounds plausible.

[tpaine]

Beats me.. Cite your context & make a point, then we can discuss it.

[weegee]

I've devoted enough time backing up my arguments (with details on the arrest and Texas law and national age of consent, etc.). I don't have these links bookmarked and searches can be time consuming.

Why do you do some research in books and on the internet for once?

[tpaine]

Can a state supreme court determine that a law violates the US Constitution? Or are they limited to test it against their state's constitution?

Sure they could. And they should.
IE, - CA has no RKBA provision, so the state courts should declare the CA assault weapons 'law' unconstitutional as per our U.S. document.

I argue that the state legislature can make homosexual sodomy (or horsemeat eating) legal or illegal. There is no US Constitutional protection for either ---

The 14th would apply under a denial of due process.
- I like horsemeat and there is no way you can stretch due process to deny it to me.

[Luis Gonzalez]

Note that no one has tried to tackle my question, no one will venture to show me that place in the US Constitution where a Second Amendment advocate's "right to self defense" is to be found.

I know where it is.

It's sitting right next to the right to privacy.

[tpaine]

Note that no one has tried to tackle my question, no one will venture to show me that place in the US Constitution where a Second Amendment advocate's "right to self defense" is to be found.
I know where it is.
It's sitting right next to the right to privacy.
609 -luis-


And privacy, of course, is very near the 'states rights' section that allows prohibitions on horsemeat.

[meadsjn]

...that place in the US Constitution where a Second Amendment advocate's "right to self defense" is to be found.

It is right there, but you have to read the whole Bill of Rights as a package (including the Preamble to the Bill of Rights). If you pick the amendments apart individually, their meaning is easier to misconstrue, as liberals have done for two hundred years.

Off the cuff: The fifth says no person shall be deprived of live, liberty, or property without due process.

The second secures the natural right of keeping and bearing arms, and as an aside, mentions the security of a free state. A Free State cannot, by definition be provided and/or secured by Police State government. A Free State does not exist where the law-abiding are fodder for the criminal element. A Free State exists only where there are Free Citizens, and Free Citizens exist only where the people have the means to protect their life, liberty, and property against any usurpers (which the founders understood, and made clear, could be government agents or other criminals). Therefore, it is imcumbent upon each citizen to provide for his/her own personal security, i.e. "self defense", as well as providing security for their State.

The 14th, although not part of the Bill of Rights, provides that no state laws can deprive inhabitants of their civil rights. It could be, and should be, argued that this includes the right to keep and bear arms, and by extension the use of those arms in self-defense.

I'm no lawyer, but those who are could put such an argument together if they wanted or cared to.

[weegee]

>>Unethical pandering politicans will pass unconstitutional laws that will get them votes.
>>Which is exactly why we have a bill of rights, which supposedly stops them from such violations

>Was Thomas Jefferson pandering?

Amendment VIII

Document 10

Thomas Jefferson, A Bill for Proportioning Crimes and Punishments

1778Papers 2:492--504
Whereas it frequently happens that wicked and dissolute men resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in it's principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears at the same time equally deducible from the purposes of society that a member thereof, committing an inferior injury, does not wholy forfiet the protection of his fellow citizens, but, after suffering a punishment in proportion to his offence is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange in a proper scale the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.

And whereas the reformation of offenders, tho' an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow citizens, which also weaken the state by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.

And forasmuch the experience of all ages and countries hath shewn that cruel and sanguinary laws defeat their own purpose by engaging the benevolence of mankind to withold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed.

For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished.

If a man do levy war against the Commonwealth or be adherent to the enemies of the commonwealth giving to them aid or comfort in the commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others, shall be adjudged treasons which extend to the commonwealth, and the person so convicted shall suffer death by hanging, and shall forfiet his lands and goods to the Commonwealth.

If any person commit Petty treason, or a husband murder his wife, a parent his child, or a child his parent, he shall suffer death by hanging, and his body be delivered to Anatomists to be dissected.

Whosoever committeth murder by poisoning shall suffer death by poison.

Whosoever committeth murder by way of duel, shall suffer death by hanging; and if he were the challenger, his body, after death, shall be gibbeted. He who removeth it from the gibbet shall be guilty of a misdemeanor; and the officer shall see that it be replaced.

Whosoever shall commit murder in any other way shall suffer death by hanging.

And in all cases of Petty treason and murder one half of the lands and goods of the offender shall be forfieted to the next of kin to the person killed, and the other half descend and go to his own representatives. Save only where one shall slay the Challenger in at duel, in which case no part of his lands or goods shall be forfieted to the kindred of the party slain, but instead thereof a moiety shall go to the Commonwealth.

The same evidence shall suffice, and order and course of trial be observed in cases of Petty treason as in those of other murders.

Whosoever shall be guilty of Manslaughter, shall for the first offence, be condemned to hard labor for seven years, in the public works, shall forfiet one half of his lands and goods to the next of kin to the person slain; the other half to be sequestered during such term, in the hands and to the use of the Commonwealth, allowing a reasonable part of the profits for the support of his family. The second offence shall be deemed Murder.

And where persons, meaning to commit a trespass only, or larceny, or other unlawful deed, and doing an act from which involuntary homicide hath ensued, have heretofore been adjudged guilty of manslaughter, or of murder, by transferring such their unlawful intention to an act much more penal than they could have in probable contemplation; no such case shall hereafter be deemed manslaughter, unless manslaughter was intended, nor murder, unless murder was intended.

In other cases of homicide the law will not add to the miseries of the party by punishments or forfietures.

Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least.

But no one shall be punished for Polygamy who shall have married after probable information of the death of his or her husband or wife, or after his or her husband or wife hath absented him or herself, so that no notice of his or her being alive hath reached such person for 7. years together, or hath suffered the punishments before prescribed for rape, polygamy or sodomy.

Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfiet one half of his lands and goods to the sufferer.

Whosoever shall counterfiet any coin current by law within this Commonwealth, or any paper bills issued in the nature of money, or of certificates of loan on the credit of this Commonwealth, or of all or any of the United States of America, or any Inspectors notes for tobacco, or shall pass any such counterfieted coin, paper bills, or notes, knowing them to be counterfiet; or, for the sake of lucre, shall diminish, case, or wash any such coin, shall be condemned to hard labor six years in the public works, and shall forfiet all his lands and goods to the Commonwealth.

Whosoever committeth Arson shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers threefold.

If any person shall within this Commonwealth, or being a citizen thereof shall without the same, wilfully destroy, or run away with any sea-vessel or goods laden on board thereof, or plunder or pilfer any wreck, he shall be condemned to hard labor five years in the public works, and shall make good the loss of the sufferers three-fold.

Whosoever committeth Robbery shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed on any Mansion house, would be deemed Burglary, shall be Burglary if committed on any other house; and he who is guilty of Burglary, shall be condemned to hard labor four years in the public works, and shall make double reparation to the persons injured.

Whatsoever act, if committed in the night time, shall constitute the crime of Burglary, shall, if committed in the day be deemed Housebreaking; and whosoever is guilty thereof shall be condemned to hard labor three years in the public works, and shall make reparation to the persons injured.

Whosoever shall be guilty of Horsestealing shall be condemned to hard labor three years in the public works, and shall make reparation to the person injured.

Grand Larceny shall be where the goods stolen are of the value of five dollars, and whosoever shall be guilty thereof shall be forthwith put in the pillory for one half hour, shall be condemned to hard labor two years in the public works, and shall make reparation to the person injured.

Petty Larceny shall be where the goods stolen are of less value than five dollars; whosoever shall be guilty thereof shall be forthwith put in the pillory for a quarter of an hour, shall be condemned to hard labor one year in the public works, and shall make reparation to the person injured.

Robbery or Larceny of Bonds, bills obligatory, bills of exchange, or promisory notes for the paiment of money or tobacco, lottery tickets, paper bills issued in the nature of money, or of certificates of loan on the credit of this commonwealth, or of all or any of the United States of America, or Inspectors notes for tobacco, shall be punished in the same manner as robbery or larceny of the money or tobacco due on, or represented by such papers.

Buyers and Receivers of goods taken by way of robbery or larceny, knowing them to have been so taken, shall be deemed Accessaries to such robbery or larceny after the fact.

Prison breakers also shall be deemed Accessories after the fact to traitors or felons whom they enlarge from prison.

All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes.

If the principal offender be fled, or secreted from justice, in any case not touching life or member, the Accessories may notwithstanding be prosecuted as if their principal were convicted.

If any offender stand mute of obstinancy, or challenge peremptorily more of the jurors than by law he may, being first warned of the consequence thereof, the court shall proceed as if he had confessed the charge.

Pardon and Privilege of clergy shall henceforth be abolished, that none may be induced to injure through hope of impunity. But if the verdict be against the defendant, and the court before whom the offence is heard and determined, shall doubt that it may be untrue for defect of testimony, or other cause, they may direct a new trial to be had.

No attainder shall work corruption of blood in any case.

In all cases of forfeiture, the widow's dower shall be saved to her, during her title thereto; after which it shall be disposed of as if no such saving had been.

The aid of Counsel, and examination of their witnesses on oath shall be allowed to defendants in criminal prosecutions.

Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.


The Founders' Constitution
Volume 5, Amendment VIII, Document 10
http://press-pubs.uchicago.edu/founders/documents/amendVIIIs10.html
The University of Chicago Press

The Papers of Thomas Jefferson. Edited by Julian P. Boyd et al. Princeton: Princeton University Press, 1950--.

[Luis Gonzalez]

Your very same argument then can be made for what others claim is the non-existent right to privacy. While nop explicitly enumerated, it nevertheless exists, just like the right to self-defense.

In this case, and to use your argument, some people in the State of Texas are deprived to their rights.

As an aside however, the second does not mention the security of s free state as an aside, it leads with it.

"A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

[weegee]

Here's another comment attributed to Thomas Jefferson:

Perhaps the most important function of sodomy laws is to deter to the spread of homosexuality in society. As revered a constitutional figure as Thomas Jefferson cited this justification in his restatement of the law on sexual crimes. Labeling homosexual sodomy as "buggery," he noted that, classically, "Buggery is twofold. 1. With mankind. 2. With beasts," and noted that of the two, homosexuality was worse, because "Bestiality can never make any progress" (Thomas Jefferson, Library Classics of the United States, 1984, p. 355).

[tpaine]

Yep. Old Tom was typical politican of his day, {brilliant writer/thinker though}, and in the 'hole in the nose' bit, I think it could be fairly said that he was either pandering to the crowd, -- or pulling its leg. -- Maybe both.

So, what else is on your agenda?

[The Old Hoosier]

If a guy is looking in your window while you and the wife are having sex, can he be arrested?

He could be, but not for violating your constitutional rights. There are laws against peeping toms in most communities.

[The Old Hoosier]

Because the FF weren't that stupid?

For the fourth time, you keep ignoring the fact that we've had sodomy laws since well before the founding of this country, and the FFs had no problem with them at all.

Also, even if you want to argue that citizens have a non-enumerated right to some expectation of privacy--a reasonable idea--you cannot rationally argue that it is a blanket, absolute right. As the constitution also states, warrants can lead to searches of homes, so any "right of privacy" in one's house is a conditional right to begin with. Moreover, a non-enumerated right to privacy would protect you from unwarranted surveillance during acts of sodomy, but it would not protect you from prosecution based on your private actions, including sodomy, if you were caught--ie, you invited a cop into the home, or he came with a warrant, while you were engaged in sodomy, just as if you had invited him in while you were doing drugs or killing someone.

The English principle that "a man's home is his castle" does not mean that anything you do in your home is legal--the false principle that your argument depends on.

[The Old Hoosier]

Do we have a right to self defense?

Yes, that's something that's always been around in the law, all 500 plus years. The idea that a right to sodomy somehow counts as part of "a man's home is his castle" is nowhere to be found in that tradition, nor in the text of the Constitution.

[Luis Gonzalez]

"There are laws against peeping toms in most communities."

I don't think I'm going out on a limb when I say that probably all States have laws against peeping toms.

What are those laws based on?

[Luis Gonzalez]

There is no right to self-defense in the constitution.