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.
He must have foreseen the advent of mass body piercing. :-)
There are two parts of the argument, and i understand that even though you have argued some "right to privacy," you have stuck more to the 14th Amendment side of it--namely, that if sodomy is illegal for homosexuals, why not heterosexuals too?
As a policy matter, my personal opinion is that it should be illegal for both. As I was telling tpaine hundreds of replies ago, we would prevent a lot of babies from getting AIDS and other horrible diseases if we actually stopped the spread of STD's through sodomy, which is probably the most risky activity for spreading STDs.
However, because homosexuals are not a protected class under the 14th amendment--and in fact are not properly a "class" at all, but rather a group of people who like to engage in certain kinds of activity--it seems unnecessary to advance a constitutional objection to the Texas law.
Think of it this way:
John belongs to a group of people who really like to do X.
Jim belongs to a group of people who really like to do Y.
The state legislature passes a law outlawing X.
So, does that give John an equal protection claim?
Of course not.
So the law should be changed, IMHO, but let's leave the constitution out of it. Let Texans change their own law.
Otherwise, you'll have gay marriage very quickly, since the argument will fly right through the court that state marriage laws are discriminatory, and equal protection requires it.
Whatever your opinion is here, that's pretty damn funny.
"As a policy matter, my personal opinion is that it should be illegal for both."
You see, we agree.
"However, because homosexuals are not a protected class under the 14th amendment--and in fact are not properly a "class" at all, but rather a group of people who like to engage in certain kinds of activity--it seems unnecessary to advance a constitutional objection to the Texas law."
That's were we have a huge difference. The Texas law itself creates a class by setting them apart from other people who enjoy the full privilege and right to enter into what Texas calls "deviant sexual intercourse".
That's the fatal flaw in the law, it criminalizes some people for engaging in an activity that others can freely enjoy. That gave the activists their ammunition.
Do you realize that in order to make your argument work, you had to create two sets of people, and spin the activity into two activities instead of just one.
The problem with your argument is that in the case of Texas, that's not the case. There is only one activity, and that's sodomy. Then, Texas itself creates a classification, and puts it in statutes.
Let's start with the fact that in their statutes, Texas classifies sodomy as "deviant sexual intercourse".
It then goes on to say that some people can freely engage in that "deviant sexual intercourse", while others can't.
The law enforces the activists's argument that homosexuals need heightened scrutiny in the eyes of the law, because legislatures are creating laws specifically addressing them.
If there had never been laws such as this, there would have been no possibility of a challenge to the institution of marriage.
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