List of Rights Keeps Growing (Texas Sodomy Case)

The Denver Post ^ | April 30, 2003 | Al Knight

[RAT Patrol]

Denver Post
al knight

List of rights keeps growing

By Al Knight

Denver Post Columnist

Wednesday, April 30, 2003 - The U.S. Supreme Court has been asked to overrule one of its decisions made just 17 years ago.

There are good reasons it should pass up the opportunity.

The request, arising from a Texas sodomy case, undermines the notion of stare decisis - a Latin phrase that describes the policy of courts to avoid disturbing settled legal precedent.

In the Bowers vs. Hardwick decision in 1986, the nation's highest court said, "The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy." It upheld a Georgia law and dismissed the claim that the Constitution contained a "right to privacy."

In fact, the majority decision - written by Byron White, a Kennedy appointee - was a pointed lecture on why the court's authority must be limited. White said that it wasn't the business of the courts to create new fundamental rights. The list of fundamental rights is rightly restricted to those liberties that are "deeply rooted in this nation's history and tradition." The right to sodomy isn't on the list, White said. He pointed out that sodomy was a criminal offense at common law; that all of the original 13 states had laws forbidding it; and that, as late as 1961, all 50 states had such laws. It would be "at best, facetious," he said, to claim that the right to sodomy was "implicit in the concept of ordered liberty."

The Bowers decision said that efforts to create a right to privacy are properly directed to Congress and to state legislatures. "The court," White wrote, "is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

The 1986 case makes it plain that it won't be a trivial matter should the Supreme Court now suddenly find a constitutional right it couldn't find just 17 years ago.

The plaintiffs in the Texas case obviously know this and have devised a very novel approach to challenge the Texas law. They have asked the court to overrule the Bowers decision, but strangely do not directly challenge the key parts of the 1986 decision.

The gay and lesbian groups that filed supporting briefs argue instead that the state law is unconstitutional because it criminalizes sodomy only as performed by homosexuals. Nine other states, they say, currently have laws forbidding sodomy (defined as oral or anal sex) by any person.

The briefs go on to claim that much has changed socially since the 1986 decision and that gays and lesbians are now widely seen as victims of discrimination. Anti-discrimination laws have been passed in a number of states to protect them, and hate-crimes legislation in a number of states specifically applies to homosexuals. The Texas law is unconstitutional, these groups say, because it singles out same-sex sodomy for condemnation and arises from a pattern of discrimination.

In the Bowers decision, the court specifically held that it would be impossible to uphold the fundamental right of homosexuals to private sexual conduct in the home without also undermining the right of states to regulate a variety of other private conduct. The court mentioned pornography, drugs, firearms and stolen goods. It also mentioned laws against adultery, incest and other sexual crimes that are often committed in the home.

All of these laws, the court said, were based on moral choices made by legislatures. If these choices are to be set aside under the due-process clause, White said, "the courts will be very busy, indeed."

Interestingly, the gay and lesbian groups don't attack this conclusion directly. They instead argue that the Texas law isn't the product of a moral principle but rather the product of a moral "distaste" for persons attracted to those of the same sex.

It's a clever approach. It gives the court an out if it wishes to take it. The justices can affirm the ruling in the Bowers case and yet strike down the Texas law on relatively narrow grounds.

If there is a disaster looming, it's in the possibility the court will, against its own prior advice, make "judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

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Al Knight (alknight@mindspring.com) ) is a member of the Denver Post editorial board. His column appears Wednesday and Sunday.

[RAT Patrol]

Ping

[WellsFargo94]

Knew a young soldier that had a "Barracks Ho" get mad at him and file charges. During the court martial she felt bad and admitted that their trist was consensual, but because it involved an act of sodomy the kid did hard time for a year or two. A law is the law.

[Sonny M]

Some laws are stupid and should be overturned, this isn't one of them.

[AntiGuv]

The Texas statute will near certainly get overturned on "equal protection" grounds, and not under any "right to privacy" rationale. The editorial essentially states as much - that the Court will leave Bowers intact (actually, the Court will probably stay silent on Bowers) with a narrow "equal protection" ruling.

In short, it's difficult to see how anyone could challenge statutes regarding pornography, drugs, firearms, or stolen goods on anything remotely approaching "equal protection" violations. It's similarly difficult to see how challenges could be brought against statutes regulating adultery, incest, or any other unnamed sexual activity on "equal protection" grounds.

The editorial uses sleight-of-hand rhetoric to simultaneously argue on two different levels (objecting to a likely "equal protection" ruling on the basis of what could proceed from a most unlikely "right to privacy" ruling).

[WellsFargo94]

I'll tell you what, that kid came out of it a much better person. He thought twice before doing something stupid.

[supercat]

To my mind, the thing that stinks in this case is that the law was never enforced against private behavior until this case. If a law is widely ignored by both citizens and police, the police should not have the authority to enforce the law against any behavior which is not in some way more eggregious than behavior which cops routinely ignore.

I don't really know enough about the facts of this case to know what's really going on, but something stinks. I wouldn't be surprised, though, if some gay "advocates" tried to have these guy's arrested so they'd have a grievance against the government. Or if a former sex partner of one of the people tried to get them in trouble. To put it another way, something stinks--I just don't know what.

[weegee]

Men may perform acts of sodomy on women and women may perform acts of sodomy on men. There is no discrimination under the law.

Those who are claiming "discrimination" are those who engage in activities prohibited by the law. They define their lives on the basis of a sex act.

If the law only permitted male to male sodomy or even just woman on woman sodomy then there would be a sex discriminated against (all males or all females).

Men and women have complimentary genitalia and thus can physically engage in sexual intercourse as well as acts defined as "sodomy". Homosexuals lack complimentary genitalia and thus are unable to engage in sexual intercourse and can only engage in acts of sodomy for stimulation.

[weegee]

I wouldn't be surprised, though, if some gay "advocates" tried to have these guy's arrested so they'd have a grievance against the government. Or if a former sex partner of one of the people tried to get them in trouble. To put it another way, something stinks--I just don't know what.

You wouldn't be off the mark to follow that reasoning. Contrary to the claims that some have made that the caller was a homophobic neighbor (based on pure conjecture) the caller was actually a homosexual lover and roommate of one of the men. Reportedly there was a history of these men making false phone calls on each other.

The caller is now dead (unrelated assault in 2000) so we can only go on the word of these 2 men. I have not seen an interview of them describing what happened that night. I doubt that they would go on record as to just how they found themselves under arrest (for an offense that normally only carries a fine) in an unlocked apartment with police in their bedroom while they engaged in anal intercourse.

[AntiGuv]

The body of law you cite includes the 1996 Romer v Evans ruling which makes clear that a state cannot discriminate against homosexuals for no reason other than that they are homosexual.

We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ."

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

IMHO, you may wish to consult that opinion and reconcile your legal analysis with Romer v Evans.

[Carry_Okie]

White said that it wasn't the business of the courts to create new fundamental rights. The list of fundamental rights is rightly restricted to those liberties that are "deeply rooted in this nation's history and tradition."

When activists of any stripe demand rights for animals, rocks, or plants, what they are really doing is demanding disproportionate representation of their interests as the self-appointed advocates representing those constituents. Unfortunately, to enforce a right requires the police power of government, the only agent so capable. Government acquires this role because it is assumed a disinterested arbiter of competing claims.

History suggests quite the opposite, which is why limiting the number of enforceable rights is as important to liberty as is constituting them as such.

When government gains the power to confer rights to any constituency, it acquires the means to confer power upon itself as an enforcing agent. There is then no limit to the power to dilute the rights of citizens. Civic respect for unalienable rights of citizens then exists not at all.

[RAT Patrol]

When activists of any stripe demand rights for animals, rocks, or plants, what they are really doing is demanding disproportionate representation of their interests as the self-appointed advocates representing those constituents. Unfortunately, to enforce a right requires the police power of government, the only agent so capable. Government acquires this role because it is assumed a disinterested arbiter of competing claims.

History suggests quite the opposite, which is why limiting the number of enforceable rights is as important to liberty as is constituting them as such.

When government gains the power to confer rights to any constituency, it acquires the means to confer power upon itself as an enforcing agent. There is then no limit to the power to dilute the rights of citizens. Civic respect for unalienable rights of citizens then exists not at all.

Well Said!

[babygene]

"To put it another way, something stinks"

Well, I guess that's the way it is in a homosexual relationship...

[weegee]

So if a law cannot be held against homosexual sodomy only, can homosexual sodomy even be outlawed?

Homosexuals do not possess complimentary genitalia and thus cannot engage in sexual intercourse. Since they can only get sexual release through homosexual sodomy, and one cannot discriminate against a homosexual (by the court ruling you cite), how can the law deny them the only sexual release they would have? If heterosexual couples can have "sex" (intercourse, penis and vagina) yet homosexuals do not have such coupling, can there be a prohibition on homosexual sex (homosexual sodomy)? I am not asking in regards to states that permit heterosexual sodomy but prohibit homosexual sodomy, I am asking in regards to states that prohibit sodomy in total (no one performs sodomy legally).

[Kevin Curry]

To my mind, the thing that stinks in this case is that the law was never enforced against private behavior until this case.

Correction: until this case there had not been an instance in Teaxas of two adults being arrested for engaging in this vile behavior in the privacy of the home. It has been extensively used to prosecute the activity when discovered anywhere else. And here, the only reason the police were in the room is because the gay activists conspired to file a false report with the police to entice the police into the bedroom.

That's a huge difference.

If this case results in the "discovery" of a fundamental right to engage in sodomy, it have far wider impact on culture, society, and our laws than simply legalizing the vile, disease-spreading, early death-inducing act of sodomy wherever it may be found. It will give renewed vigor to federal and state hate-crime legislation initiatives and open the door to the related claim: that there is a "fundamental right" to same sex marriage. The government will be MORE involved in the lives of its citizens than ever.

Gay activists may be vile, but they are not stupid.

[AntiGuv]

Are you asking for my personal view or for the likely view of the Court? Since my personal view is of rather little consequence, I will respond to the latter.

I'm uncertain how the Court will rule in respect to statutes framed as blanket sodomy prohibitions, but they may very well get struck down if the Court decides that they create an arbitrary, unequal burden for whatever class of citizens (presumably homosexuals). If the Court is inclined to issue a ruling that broad, then it could find that such laws illegally single out homosexuals in either practice or in consequence despite their superficially neutral language.

My personal intuition is that the Court will rule on this basis to sweep away all sodomy statutes once and for all, but I have no great confidence in that whatsoever. The only outcome that would shock me is if this Court does not strike down the Texas statute under the same rationale as that of Romer v Evans.

[weegee]

I'm asking if it is constitutional to deny homosexuals the only sexual union that they can physically participate in (homosexual sodomy) since you cite a ruling that says that homosexuals cannot be discriminated against.

Are homosexuals members of a unique religion? It is a unique gender? A race? How do they earn a protected status on the basis of a sex act?

[AntiGuv]

This question was raised during oral arguments (the transcript of which I just read to make certain that the Equal Protection argument I stated above was advanced during Court proceedings - it was) and answered for all meaningful intents and purposes:

QUESTION: You don't even have to get to the -- as I understand it, you don't even have to get to the characterization of homosexual. The statute clearly defines certain acts committed by or together with individuals of the same sex and that's your class, isn't it?

MR. ROSENTHAL: Yes, it is.

So, there's your answer. BTW, I've noticed previously that you're fond of verbal contortions designed to avoid conceding the very existence of sexual orientations. The fact of the matter is that the vast majority of Americans know exactly what class of people is described by the word "homosexual" regardless of their beliefs regarding etiology. It seems rather pointless in my view for us to debate the matter.

In any event, the Equal Protection Clause does not make any of the distinctions which you appear to imply as requisite:

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

Texas ratified the 14th Amendment on February 18, 1870.

[No Dems 2004]

I'm really praying that this pending Supreme Court ruling won't be a full-blown victory for the homosexuals. That's not what this country needs. Somehow, I think something good will come out of all this. We shouldn't think that this court, though displeasing much of the time, is incapable of making a good decision. In a 5-4 ruling in June 2000 (not long ago), the court ruled that the Boy Scouts of America were constitutionally-protected to ban homos from their organisation. That wasn't a pro-gay decision. So, fellow Americans, let's pray for the best.

Even still, the message has been abundantly clear for some time -- we need better justices on the Supreme Court. The Supreme Court that rightly refuses petition after petition to stay executions (both federal and state), is the same Court that refuses to protect babies from the infanticide of abortion.

Stevens, Breyer, Ginsberg, Souter, O'Connor and Kennedy all need to be replaced, especially the first 5. I pray strongly that Stevens will have to go soon.

[RAT Patrol]

The Boy Scout vote was shockingly and appallingly close. We are talking about them being one vote away from being FORCED to allow homosexuals to lead their children. How could the vote have been so close?