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

[kms61]

There's still a war going on in Iraq, and two soldiers went missing today. This nonsense about sodomy isn't even on my radar.

[ninenot]

It had EVERYTHING to do with eliminating the purview of the several States in legislation.

It can now be argued that Wisconsin's prohibition of sex with juveniles is un-con because it was done privately, and with consent.

Please demonstrate otherwise.

[Spiff]

Forget it, it's over. It isn't coming back, just like slavery isn't coming back. Yeah, prohibiting slavery overturned 4000 years of history and Biblical approval of same, also. To bad.

Spoken like a true Manhole Inspector...a bit overjoyed at the sodomy decision, are we?

[Labyrinthos]

a design for a fully-automatic firearm was presented to Congress for a funding request at the second Congress, and working designs for machine guns go back at least as far as 1718 (James Puckle's design). Concepts for machine guns go back even further. The founders were well aware of the inevitable progress of technology, especially in the field of firearms in which many of the founders were personally interested.

Citation? (I'm not asking because I doubt you, but because I want to use the information in future 2nd Amendment debates with the libbies in my office.)

[CobaltBlue]

Juveniles are not capable of giving consent to sex, just as they are not capable of forming contracts. They are legally incompetent.

[jlogajan]

SODOMY is not "oral sex."

Depends. Sodomy laws have covered many different sexual acts. Just about anything, including sex outside of marriage, has been covered under a sodomy law somewhere.

[ninenot]

"Legally" is becoming a rather elastic word.

And I believe that in your response, the "Legal" is determined by the several States.

Since the age for alcohol consumption can vary between the States, there's undoubtedly a group someplace who will argue that the 16-year-old Wisconsin law does not comport with its "Private and Consensual" activity with 12-year-olds.

The Supremes have now allowed for such an argument, and have further allowed it to be successful.

[colorado tanker]

Rush just asked: "Do we even need states anymore? I mean, if they can't act individually, what's the purpose?

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.

[CobaltBlue]

The statute in question prohibited both oral and anal sex. I am aware that in common discourse, sodomy refers to anal sex, but legally the definion of sodomy prohibits both.

>>The appli-cable state law is Tex. Penal Code Ann. §21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual inter-course” as follows:
“(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
“(B) the penetration of the genitals or the anus of an-other person with an object.” §21.01(1).<<

BTW, the opinion only strikes down homosexual sodomy, but by extension would also strike down laws against heterosexual sodomy, which until today was a class six felony in Virginia (we call it a "crime against nature" here):

§ 18.2-361. Crimes against nature.

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.

B. Any person who carnally knows by the anus or by or with the mouth his daughter or granddaughter, son or grandson, brother or sister, or father or mother shall be guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least thirteen but less than eighteen years of age at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.

(Code 1950, § 18.1-212; 1960, c. 358; 1968, c. 427; 1975, cc. 14, 15; 1977, c. 285; 1981, c. 397; 1993, c. 450.)

[weegee]

"...there is a right to privacy to protect private, adult consensual sexual activity. "

Hmmmm. And just what does this do for the states that have a higher age of consent (age 18) for homosexual sex acts than for heterosexual sex acts. Many states have an age of consent under 18 and some have set homosexual acts at age 18.

That call of "discrimation" throws the "consenting adults" argument out the window as one or more of the participants can be under the age of 18.

[weegee]

There was this comment in a Washington Post article:

"Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court."

Expect same sex marriage, adoption, healthcare benefits, etc. to be demanded. They seek these through the courts and not the legislature.

I guess that consenting adults can now smoke pot that they raised at home (in private) too, hmmm? "The law is a ass."

[CobaltBlue]

Read the opinion and you'll that where you're wrong.
http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf

Some states do have a lowish age of consent. In the 19th century sex with 12 year olds was allowed, but that's considered backward these days. The typical age of consent in the US today is 16.
http://www.ageofconsent.com/ageofconsent.htm

[weegee]

Let's just do away with the legislature. They cost too much money and aren't required to establish law in this country anyway. Wouldn't even have to challenge Campaign Finance Reform; let's just do away the with electorate and let the judicial branch establish the laws.

[weegee]

The statute that was struck down had nothing to do with sex with children.

If you want to argue that this is one more step down the slippery slope, fine, but we aren't there yet.

Not all states set age of consent at age 18.

Why can't an adult have consenting sex with their own child (if at the age of consent) in the privacy of their own home?

Additionally, some states set the age of consent for homosexual acts at 18 while having and age of consent for heterosexual acts younger (some as low as 14). Do you think that this will norm those age of consent laws to 18 for all or lower the bar for homosexual encounter to as low as 14 for all?

[weegee]

Juveniles are not capable of giving consent to sex, just as they are not capable of forming contracts. They are legally incompetent.

Are you stating that all states that set "age of consent" below 18 have laws that grant too much freedom to minors? Have you made even the slightest effort to see that the legislature raises the age of consent uniformly to 18?

[CobaltBlue]

Scalia is pretty hot about it, isn't he? Yet, even Scalia recognizes that certain fundamental rights are protected by the "liberty" clause in the 5th and 15th amendments:

>>Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection—that is, rights which are “‘deeply rooted in this Nation’s history and tradition,’” ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and con-
Cite as: 539 U. S. ____ (2003) 9 SCALIA, J., dissenting science of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (“[W]e have insisted not merely that the interest denomi-nated as a ‘liberty’ be ‘fundamental’ . . . but also that it be an interest traditionally protected by our society”); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is ra-tionally related to a legitimate state interest.<<

Take a look at what Scalia says - he argues that liberty interests are protected if they are deeply rooted in our history and tradition. Even Scalia believes that history and tradition can create rights that were not contemplated by the framers of the Constitution, e.g., the right of black people to vote was certainly never contemplated by the Founding Fathers.

He argues that the majority opinion in Lawrence v. Texas purports to rest on the "rational basis" test but he doesn't think it does. Well, that's the way the cookie crumbles.

Just thought I'd mention it for the edification of those who argue that the Constitution has no elasticity whatsoever.

[CobaltBlue]

Scalia is pretty hot about it, isn't he? Yet, even Scalia recognizes that certain fundamental rights are protected by the "liberty" clause in the 5th and 15th amendments:

>>Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection—that is, rights which are “‘deeply rooted in this Nation’s history and tradition,’” ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and con-
Cite as: 539 U. S. ____ (2003) 9 SCALIA, J., dissenting science of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (“[W]e have insisted not merely that the interest denomi-nated as a ‘liberty’ be ‘fundamental’ . . . but also that it be an interest traditionally protected by our society”); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is ra-tionally related to a legitimate state interest.<<

Take a look at what Scalia says - he argues that liberty interests are protected if they are deeply rooted in our history and tradition. Even Scalia believes that history and tradition can create rights that were not contemplated by the framers of the Constitution, e.g., the right of black people to vote was certainly never contemplated by the Founding Fathers.

He argues that the majority opinion in Lawrence v. Texas purports to rest on the "rational basis" test but he doesn't think it does. Well, that's the way the cookie crumbles.

Just thought I'd mention it for the edification of those who argue that the Constitution has no elasticity whatsoever.

[Van Jenerette]

the FOUNDING FATHERS UNLEASHED

WARNING...

"We have no government armed with power capable of contending with human passions unbridled by morality and religion...Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." - John Adams, October 11, 1798

WARNING...

"Have you ever found in history, one single example of a Nation thoroughly corrupted that was afterwards restored to virtue?... And without virtue, there can be no political liberty....Will you tell me how to prevent riches from becoming the effects of temperance and industry? Will you tell me how to prevent luxury from producing effeminacy, intoxication, extravagance, vice and folly?..." - John Adams, in a letter to Thomas Jefferson

The entire argument about sexual behavior is so simple it can be reduced to the following: Should there be any social rules about what sexual activity a human being engages in?

If the answer is no then everyone should just shut up...hetero is okay, cousins are okay, polygamy is okay, bi is okay; gay is okay, 13-year olds are okay, and one or one-hundred-at-a-time are okay, et. al.

However, if a society decides that certain rules about who does whom when and where is functional and perhaps even necessary, all that is left is to decide is WHAT are the rules of sexual behavior and WHO shall make them...simple.

Those who follow the 'rules' are then NORMAL and all the rest are PERVERTS or DEVIANTS... so very, very simple...you decide.

Van & Katherine Jenerette

www.jenerette.com

[aristeides]

The Court was quite correct on this.

Sodomy laws may be stupid. But are they unconstitutional?

[aristeides]

Is a law unconstitutional just because it's hypocritical?