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.
Sed contra, this is a winning issue that will help ring in a GOP sweep in 2004.
Who?
If precedent prevails, why did the SC take this case in the first place? It already had a ruling based on a non-existent privacy right, even though Georgia has a right to privacy in its Constitution.
Does the SC typically take a case just to reaffirm a precedent, or wouldn't the precedent be affirmed simply by refusing to take the case?
I've read here that they took this case specifically because the Texas statute excludes heterosexuals.
BTW, this has been a good discussion.
Premises, premises. Similar desire and behavior does not make you a "class."
Not necessarily, and in most cases no.
I understand the ninth amendment issue here. But in this case, no, there never was a right to sodomy recognized at any time in our legal tradition, and in fact laws against sodomy have always been around. Someone even listed some of them on a thread yesterday--"let them both be put to death" was the wording in Vermont, I think. Based on the commonlaw tradition, this is really a 10th amendment issue, because the courts have said that states have the right to regulate health and morals.
Regardless, this is the reason we have a representative democratic process--not so that we can have 9 judges decide what all the laws in the country are going to be.
Well, the GOP may sweep, but I doubt this will factor into the voting pattern of anybody who didn't already agree with Santorum.
I agree with you. As a conservative, I do not want government dictating what happens in anyone's home as long as it's not hurting anyone.
Darth Bader Ginsburg aka "Buzzie"
They took it becase at least four justices voted to take it, no other reason. Many members of the court (Ginsberg, Souder, Stevens, Breyer) have no regard for precedent, law or tradition whatsoever, but are really just activists who got on the court to advance their un-American agenda.
I've read here that they took this case specifically because the Texas statute excludes heterosexuals.
That is likely. But a 14th amendment decision like that, that adds sexual preference as a new protected class, would be a very unwise decision. Like I said before, that decision will lead to the striking of all anti-gay-marriage laws and amendments to state constitutions, as well as the federal Defense of Marriage Act. It is only a matter of time before some future liberal in a lower court uses that precedent to force states to grant marriage licenses to gays.
If the court rules that there is a right to private consensual sexual behavior, then yes, that is correct. Not only legal, but a constitutional right.
What is your opinion on the gov't confiscating my property (tax dollars) to pay for the social results of said "bedroom" activity? What about AIDS funding and research? What about condom distribution and sex-ed in schools? What about the family breakdown and all the needy or screwed-up kids that result from these free-willing bedroom activities? What about the STD's that inevitably result because the bedrooms keep rotating? Do you favor the gov't confiscating money from me to fund these issues and problems? Where's my freedom in all of this?
Is there lots of that stuff going on?
Somehow, I don't think people are just waiting for a cue from the SC to dump their spouses so they can sleep with their children.
It's not a question of whether it happens often. It's a question of whether states should even be able to outlaw it.
Or their children's dogs.
My thoughts on this case are that there isn't a right to privacy in the Constitution. People may want there to be one, but that's what the amendment process is about. And like state laws, amendments to the US Constitution are a legislative matter, not a judicial one.
If people want the Constitution to say something, draft and ratify an amendment. Get ready to define what "privacy" means and to explain how actions that happen in one's house do or do not effect others in the society you are a citizen of. I think you'll find the scope of "privacy" shrinking and shrinking if you think about the consequences all actions have, wether they occur on this side of a wall or that one. But don't twist the 9th and 14th amendments into signifying something no-one imagined until they conjured up the penumbras they needed for Griswold.
The debate about privacy, if valuable and sincere, is something worthy of the process of Constitutional amendment.
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