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.
Probably because they made sodomy illegal for all citizens.
Sodomy, adultery, and fornication were all addressed in colonial times, and they were illegal for all people, so what's changed since then is that the majority wishes to have that restriction lifted (notice that adultery and fornication do not get a mention) from heterosexuals, but held firm for homosexuals.
There are no laws against premarital sex (fornication) in Texas, there are no laws making adultery illegal in Texas, and sodomy is legal in Texas for some, but not for others. We have destroyed the Founding Father's nation, and now, we are embracing some convaluded point which would allow some to commit sodomy, but not others.
I don't think that bringing the Founding Fathers in on this argument is a real good idea, morally speaking, they would think us all perverts.
I have taken, as I do so often, the position of devil's advocate in the fact that I am attempting to look at this from a non-biased perspective.
I think that the flaw in the argument here is the law itself, and the way it is worded in Texas. Unfortunately, and I mean unfortunately because I am no friend of the "gay agenda", this law left itself open for challenges.
Below, is the what I believe to be the thrust of the case against the Texas law, from Court's transcripts, the speaker is Paul M. Smith, for the plaintiffs:
"The one thing that, I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there’s one minority of people [who] don’t get that decision and the only reason we’re going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don’t want those people over there to have the same right."
Let's see the text. I read it, and I don't see any such right.
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.
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.
Yep, I ignore their irrational laws about slavery as well. Most anyone is a hypocrite about some aspects of life.
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.
I'm not arguing absolutes, and never have.
Big of you to admit privacy is reasonable tho. - Thanks.
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.
Unreasonable searches are violations.
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
'Caught' at what? - 'Sin'? - The state has no power to ban such acts.
--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.
You simply repeat your theory that states have the power to prohibit damn near anything. Eating horsemeat can be deemed a 'crime' in your view.
Getta Grip.
Well, the founding fathers agreed with me on sodomy, anyway. And you just keep repeating your theory that states DON'T have the power to prohibit damn near anything.
Eating horsemeat can be deemed a 'crime' in your view.
In some states, it probably IS a crime to eat horsemeat. :-)
Look, you're just assuming that libertarian principles are contained within the constitution, or that just because the government does not NEED to regulate something, it also CANNOT regulate it. I agree that many state governments regulate too much, and that means you should change the law through the political process. But there are only certain specific things that governments ABSOLUTELY CANNOT regulate, and that's the only time we invoke the constitution. To create a whole new category of such things, as this ruling may and as you want to, is not something to be taken lightly or jumped into without considering the consequences--namely the downfall of laws against other consensual sex acts that even pro-sodomy people think should be illegal.
States have always had the power to regulate matters of health and morals--that's all over SCOTUS precedent. Some states do so more than others. For sodomy, which is definitely unhealthy and also widely considered immoral, it is not unreasonable to see the state's compelling interest--if for no other reason than the health problems it creates.
Hundreds of children are still born in this country with AIDS each year, and almost all of them--really, it's probably all of them--get it because someone a rung or two up the chain of sexual activity got it through sodomy and passed it to the birth mother. Sodomy is an extremely high-risk activity, several times more likely than almost anything else--and definitely more likely than any other form of sexual activity--to pass along AIDS. That alone, aside from moral considerations, seems like a compelling interest to me.
So there is one possible argument for why states should be able to criminalize sodomy. I don't think it's the only one, or even the best one necessarily, but there is a good rationale for it.
There are also arguments against criminalizing it. Fine. So go pass a new law in Texas instead of soiling our constitution with this new alleged right and all of the consequences it will bring with it.
Without digging back into the Federalist and Anti-Federalist papers, I've not the inclination to rehash a topic which has already been beaten to death. The communications between the founders, and the discussions which occurred in the State assemblies prior to the ratification of the Constition, made clear the reasoning of the Second Amendment. The intent was that free citizens would not lawfully be deprived of their God-given right to the means to protect themselves from tyrannical government, or from the criminal elements, or from the beasts of the field and wilderness.
I'm not sure if you are playing Devil's Advocate, and wish to generate a fresh discussion to support the Second Amendment, or if you have actually sold out to the Dark Side and wish to live as a well-controlled subject of a totalitarian police-state government.
If it is the latter, the utopia you seek is just a short swim or boat ride to the south of you. With all due respect, I hope this is not the case.
I cannot find the other quotation, the first one you gave. I'm looking now.
This argument never has been, and will not now, be settled through civil discourse.
Here's some context to the precise quote you gave: Roe determined that a woman's decision to terminate her pregnancy is a "liberty" protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the specific practices of States at the time of the Fourteenth Amendment's adoption marks the outer limits of the substantive sphere of such "liberty." Rather, the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual's liberty and the demands of organized society.
This is corrupt jurisprudence: the whole basis of this decision is that these three justices--O'Connor, Kennedy, and Souder--were going to try to come up with some excuse for upholding Roe v. Wade at all costs.
The interesting corollary is that if you accept sodomy as a constitutional right, you almost certainly must accept Roe v. Wade.
All I'm saying is that you just quoted this thing passing it off as if it were some binding, or at least significant opinion. In fact it was a lone dissent--that is to say that Harlan was the only one who agreed with this.
Not "Glogg" (umlaut over the o)?
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