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.

[xdem]

A recent article in REASON magazine. 6.03, p.19, magazine mentioned that "60% of Americans believe a sexual relationship between consenting adults of the same sex is always wrong; fewer than 30% unequivocally say it is 'not wrong.' At least 60% oppose allowing gay and lesbian couples to marry."

And from the issue of REASON, "55% (of) Americans now favor () marriage-like rights for same-sex partners in such areas as inheritance, pension benefits, and health insurance; a slim majority believes gay couples should be allowed to adopt, and close to half favor legal protections for gay domestic partnerships. The stumbling block seems to be the word marriage."

None of this will matter. One side plays continually on defense. The other is patient, well-financed, and media-supported. The end result is obvious, and in no doubt. The only question is "when."

[tpaine]

The right to self-defense is not enumerated in the Constitution, but it is as old as the ten commandments--it is a part of the universally recognized moral law that is older than the ten comandments, going back to Hammurabi and probably before.

That is the reason we have it today, not based on some bogus modern legal theory, such as the absolute right to privacy.
-toh-


No one here is arguing for an 'absolute' right to privacy, as you well know.
Criminal acts commited in privacy are crimes.
Non-violent victimless 'sins' are not.

You are arguing a straw man 'absolute' position on privacy.
- As Luis is arguing a straw man absolutist position on a milita preamble to our RKBA's

I ask you both. -- Why?
What do you gain by denying individual rights?

[The Old Hoosier]

Criminal acts commited in privacy are crimes. Non-violent victimless 'sins' are not.

OK, in your opinion, is there a victim in consensual polygamy, incest or prostitution? Should states be able to regulate these in any way whatsoever?

[The Old Hoosier]

Sorry, also I forgot about drug use. Could you tell me if you think private drug use in the home is a victimless crime, and whether any state, under our constitution, can regulate it?

[Luis Gonzalez]

Yes, I think some drugs should be deregulated right along with tyhe ones that are sold openly in the market right now.

I've never found the section of the constitution that gives tye government the power to criminalize something that can grow free.

[Luis Gonzalez]

These guys are so freaked out about the Second, that they won't see what's clearly there. The preamble states that the right to bear arms to defend the nation belongs to the citizens, and that right shall not be infringed.

But they are so freaked out by all the BS arguments from the left all about "since we no longer need a militia, the right to bear arms is not absolute", and the argument by Laurence Tribe that "the people" actually means The States, that they spin meanings just like the Liberals.

The amendment is quite clear, the people (you, me, everyone) are entitled, and needed to defend the country, and to that end, the right to bear arms shall not be infringed.

The Libs claim that "well regulated militia" means...it means that people have a constitutional right to bear arms in the defense of our country, to organize ourselves in order to do so, and that Congress shall not f$%k with that right.

When I argue about the AWB, I am simply arguing from a political standpoint, and looking for an easier, common sense way to defeat it within the scope of modern-day politics.

I don't think pressuring Bush not to sign something the Congress sent him is the right way to do it. I think pressuring Congress not to send it to Bush at all is.

[Luis Gonzalez]

They should be able to regulate and tax prostitution..some already do.

Incest and polygamy, hard question that I haven't given a lot of thought to, but at the surface, there can be physical problems with children of an incestual relationship, so you are impacting the life of a third, non-consensual individual, and polygamy can be argued as long as all are consenting adults.

[sinkspur]

How many folks have had any government agent look into your bedroom in any way? I want a show of hands here. I believe it is an invalid and hysterical argument that is being laid before you.

It's not hysterical.

So, you're in favor of laws that won't be enforced? Non-enforcement of some laws lowers respect for all laws.

Besides, whether they've looked into my bedroom or not, the law gives them the right to look in my window, and I don't want them to have it.

[tpaine]

Criminal acts commited in privacy are crimes. Non-violent victimless 'sins' are not.

OK, in your opinion, is there a victim in consensual polygamy, incest or prostitution? Should states be able to regulate these in any way whatsoever?

Public aspects of prostitution can be reasonably regulated, sure.
But no, there can't be an adult victim in a consensual act by the logic of the term.
Can an evil person use undue influence on an innocent/naive adult to commit sin? -- Sure, -- but it is impossible to write a constitutional law to reasonably 'regulate' such acts, imo.

How do you propose to stop evil, & legislate morality in a free republic?

[Khepera]

No I expect for them to be enfourced. I just don't believe that charges will be leveled in the manor you describe.

[sinkspur]

No I expect for them to be enfourced. I just don't believe that charges will be leveled in the manor you describe.

How should they be enforced? How SHOULD charges be leveled?

Why should what two consenting unmarried adults do behind closed doors be criminalized?

[F16Fighter]

"How many folks have had any government agent look into your bedroom in any way? I want a show of hands here. I believe it is an invalid and hysterical argument that is being laid before you. Don't fall for that."

I agree with you -- displayed before us is a red herring in leiu of legitimizing the "sanctity of the bedroom" regardless of anything that goes on there.

[tpaine]

Sorry, also I forgot about drug use. Could you tell me if you think private drug use in the home is a victimless crime, and whether any state, under our constitution, can regulate it?
684 -toh-


States have the power to reasonably regulate 'drugs' just as they do booze. But they must use constitutional due process in both the writing of the statutes, and in the enforcement of such law.

Reread that quote by Justice Harlan.. States must have a compelling reason in order to criminalize private behaviors. [substance abuse/sex 'sins', etc]
... And there are virtually no compelling reasons to 'ban' private non violent possession/use of property like booze, drugs, guns or horsemeat.

[Luis Gonzalez]

I've never said that everything that's done in privacy ois legal, so don;t put words in my mouth. As a marre of fact, I haven't made much of an argument about the ritght to privacy, and my entire argument is in the disparity displayed by the Texas law.

You all keep bringing the Founders into the argument, so I went searching for some pearls of wisdom from the departed architects of our society, and lo and behold, it appears that Jefferson had something to say on the matter, he believed that sodomites "should be punished, if a man, by castration, if a woman by cutting through the cartilage of her nose of one-half inch in diameter at least", I guess old Tom was not enlightened enough to draw some absurd law that would have that castration, or that nose cutting carried out depending on the coupling of the offending "deviants".

Imagine that, Tom saw sodomy as being bad regardless of whether the sodomite was in the majority, or the monority of the population.

[Luis Gonzalez]

What the hell do you have against horses anyway?

[Luis Gonzalez]

Not true at all, why don't you take the time to actually read the thread.

the question, at least from my perspective, is a Texas law that condones sodomy by some people, and not by others.

[tpaine]

What the hell does anyone have against eating horses anyway?

And why would you want to give the state the power to tell me what I can or can't own/eat/drink/smoke/whatever?

[Luis Gonzalez]

I said nothing of the sort, I've eaten horse meat. I just want to know what your fascination with it is, it doesn't taste all that good.

[tpaine]

I've eaten horse meat. I just want to know what your fascination with it is, it doesn't taste all that good.


My 'fascination' luis, -- is only with the ridiculous concept that the state can outlaw eating horsemeat.

Two bits the 'legislators' that thought this one up were drunk & pulling everyones leg.

[F16Fighter]

"Not true at all, why don't you take the time to actually read the thread."

I am able to understand the gist without reading ALL 700 posts, Luis. It'd be nice if I was paid to read 'em all ;-)

"the question, at least from my perspective, is a Texas law that condones sodomy by some people, and not by others."

There is a difference between "condoning" the law, and the actual enforcement of the law.

Again -- the issue is a red herring for gay activists and paranoid FReepers, because the FIRST time I hear of ANYONE busted for engaging in sodomy will be the ONLY time.

But, according to those on other side of this argument, black helicopters and SWAT teams swarming around Richard Simmon's home are just one scripture verse and one phone call away from John Ashcroft's office.