[The Old Hoosier]

'Caught' at what? - 'Sin'? - The state has no power to ban such acts...You simply repeat your theory that states have the power to prohibit damn near anything.

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.

[tpaine]

"So go pass a new law in Texas instead of soiling our constitution with this new alleged right --"

Protecting privacy with
due process is not a new concept:

           In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.

See U.S. Const., Amend. 9.

As the second Justice Harlan recognized:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures;
and so on. 

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777