U.S. Supreme Court rewrites Constitution and 3,000 years of history

Alliance Defense Fund | 6/26/03 | Richard K. Jefferson

[Polycarp]

U.S. Supreme Court rewrites

Constitution and 3,000 years of history

WASHINGTON – The U.S. Supreme Court today rewrote the U.S. Constitution and 3,000 years of legal history by striking down the Texas sodomy law in a 6-3 decision.

The court overrode the Constitution, the history of American law, and its own precedent by declaring in Lawrence v. Texas that there is a right to privacy to protect private, adult consensual sexual activity. Justice Kennedy wrote for the majority, and only Justices Scalia and Thomas and Chief Justice Rhenquist dissented. The majority reasoned, unbelievably, that because of the trend in state legislatures to repeal sodomy laws, these laws have become unconstitutional.

The Alliance Defense Fund, a national legal organization based in Scottsdale, Arizona, said the framers of the Constitution could never have imagined an interpretation finding in the Constitution a right to engage in the act of sodomy.

“We are disappointed but we’re not giving up hope and we’re not going away,” said Jordan Lorence, a senior litigator with the Alliance Defense Fund. “This ruling provides us with new opportunities. We have already prevailed in other key cases, and we must persevere.” The Alliance Defense Fund supported the prevailing parties in Hurley v. Irish-American Group of Boston and Boy Scouts of America v. Dale.

In its 1986 Bowers v. Hardwick decision, the court upheld laws against sodomy. Then Chief Justice Warren Burger wrote in his concurring opinion “… in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.” Burger continued: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards…[Sir William] Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature’ and ‘a crime not fit to be named.’ To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

“It would have been a better day if the court had taken Burger’s words to heart, and followed its own holding in Bowers, and 3,000 years of history and precedent,” Lorence said.

The Alliance Defense Fund serves people of faith; it provides strategy, training, and funding in the legal battle for religious liberty, sanctity of life, and traditional family values.

Richard K. Jefferson Senior Director National Media Relations Alliance Defense Fund rjefferson@alliancedefensefund.org (480) 444-0020 15333 North Pima Road, Suite 165 Scottsdale, AZ 85260

[FreeTheHostages]

Hmm, I think the Supreme Court said criminalizing private sexual conduct violates due process.

That's different from saying a law that places proscriptions on public service in institutions would violate due process -- arguably.

The difference in burden between criminalizing and merely being excluded from one possible avenue of employment for specific, articulated reasons. Possible one could fail due process and the other could pass the test.

[CobaltBlue]

Social mores have changed. This probably isn't what you want to hear, but if you study the history of the Supreme Court it's the truth. They don't live in ivory towers, they live right here in the DC metro area, and read the same newspapers and magazines and watch the same TV that we all do. It's unrealistic to expect them to think exactly as the Founding Fathers did, many of whom, for example, owned slaves, and most of whom thought women should not work outside the home.

[DannyTN]

"That is a hideous idea." (Leaving a law on the books but not enforcing it)

For once I agree with SO9. The speed limit laws during the national speed limit days which were blatantly ignored in many major cities were the cause of a decline in general respect for the law.

Most sodomy laws wouldn't and haven't normally gotten enforced because you would have to invade someone's privacy without due cause. In this case the officers had due course and they were right in prosecuting.

It's the Supremes that are singing out of tune on this one.

[weegee]

Children don't get to consent to be adopted by non-"nuclear" families either (nuclear being one mother, one father).

[aristeides]

I think the legal doctrine that minors above the age of 10 or 12 or so are incapable of giving consent is a legal fiction. I don't think that legal fiction will be enough to support for long a distinction between today's decision and sex with children.

[Luis Gonzalez]

"Ahh--SODOMY is not "oral sex."

In Texas it is.

[puroresu]

###If that were true then the Constitution would not empower the Supreme Court to strike down state laws.


Everybody knows the Supreme Court has this power. What we are really arguing about is the outcome of this particular case.###


They don't have a unilateral power to strike down any law they wish. There must be a clear violation of an existing constitutional provision. For example, a state can't coin its own money, or legalize slavery (since the adoption of the 13th Amendment). The courts were never supposed to take some abstract concept like "liberty" or "privacy" and then start mowing down state laws they don't like, using those concepts as justification. That's the problem most of us have with today's rulings. There is ABSOLUTELY NOTHING in the Constitution which says states can't prohibit sodomy. Once the courts start using generalized concepts to strike down laws, we end up with the personal whims of the justices being imposed on us. If five of the nine justices favor sodomy and abortion, but only four of them favor polygamy and prostitution, then state laws banning sodomy and abortion get struck down, while ones banning polygamy and prostitution get upheld. We're governed by the whims of judges.

In fact, NONE of those issues are within the jurisdiction of federal courts to begin with. Unless the Constitution specifically says a state can't do something, then they can do it. It's just that simple. It's called the 10th Amendment.

[Michael81Dus]

Oh, I´m relieved that you call for abolishing the highest Court of the United States of America - the Supreme Court. Is that all you have to say? They make a decision you´re not content with and you say "we don´t need them"?

Well, now at least I understand your position on the UN and the Iraq-war-opposing countries a lot better.

[ninenot]

There are no "victimless" crimes.

Any derogation from right order will have at least one victim, possibly more. In the case of prostitution, the whore is a victim, as is the john.

Sex is not recreation, not a TV show, not NFL Football. It's quite serious and meant to be so.

Your libertarianism is showing, in defiance of "nature and nature's God."

[weegee]

A dead person can provide consent to sex acts in his or her will. I'm not saying that they would but there are those who would see their body as nothing but a husk and not be bothered by anything done to their corpses.

[brownie]

His remarks are ludicrious. The framers included the amendment procedures so that such changes could be made. They did not foresee, and would never agree to, the tyranical supreme court adding to the Constitution. I suppose Justice Kennedy things the amendment procedure contained in the constitution is for some other purpose then changing the constitution. He is intellectually dishonest, and I don't believe that he (and the other idiots who voted with the majority) actually believes his own tripe.

Indeed, Supreme Court constitional review was not even invented until well after the constitution was ratified and in effect for a number of years.

[puroresu]

A lot of people seem to think that there are two methods of amending the Constitution. Method one involves obtaining approval of two-thirds of both houses of Congress, and three-fourths of the state legislatures. Method two is that the sitting justices can change it anytime they decide that society's morals either have changed or need to change.

In fact, the Constitution only specifies the first method. The second one is nothing but an arrogant federal power grab by outlaw judges who are trashing our Constitution and our liberties.

[weegee]

We're governed by the whims of judges.

I agree. There are those who see this as an undeniable liberty, an act between consenting adults.

I could list countless acts between consenting adults that are illegally across this nation and some which are illegal in most states.

The argument made hints that they will be made legal due to privacy concerns but they won't be. Some issues, the legislature will try to "legalize" for the sake of regulation ("legalize it and then tax the hell out of it").

[weegee]

Activist Supreme Court BUMP

[Wolfstar]

Prosecuted for what?! I am opposed to today's ruling because I believe it opens just such a Pandora's box. If the right to privacy is so transcendant, and if we try juveniles as adults for crimes such as murder because we believe they understand the act, then it follows that juveniles are capable of other adult acts — such as consenting to sex. For that matter, juveniles already are able to obtain abortions without parental consent.

[Luis Gonzalez]

"...add admendments to the constitution that restrict the use of "privacy" as a legal argument."

So, you don't have a problem with your phone lines being tapped?

You are OK with your e-mails being read by government officials?

You are OK with me looking in on you and the wife having sex? Or maybe looking in when you daughter is showering?

You don't mind your mail beong opened by the Postal Inspectors?

[DannyTN]

"So, you don't have a problem with...(phone taps, voyerism, invasions of mail and email privacy)"

Of course I have a problem with those, those fall under the unreasonable search clause of the constitution. A warrant is required to do any of those things.

But if police did have probably cause and/or a warrant to do any of those actions they wouldn't find anything illegal.

The difference is that in this case there was reasonable cause for the police to search the home. And they found a clear violation of the law. At the most the supreme court should have said that the evidence was inadmissible because there was no warrant. They should not have overturned the sodomy law, because they were never granted the constitutional power to do that.

[Luis Gonzalez]

It was a stupid law that gae the other side all the ammunition they needed.

Texas should have just simply made sodomy illegal for all citizens.

[Luis Gonzalez]

I don't need a warrant to peek in on your daughter while she's bathing.

[jwalsh07]

If the libs get their way, the States will be as irrelevent as English counties or French departments. We won't be a federal state anymore.

Presumably, "libs" includes llibertarians applauding their flavor of judicial activism.