Sodomy ruling prompts fears and cheers (Boy Scout and marriage questions?)

The Philadelphia Daily News ^ | 6/26/03 | William Bunch

[RonF]

FIRST COMES LOVE, then comes marriage?

On a day when the U.S. Supreme Court issued a historic ruling ending the last remaining laws against gay sex, conservative activists led by Justice Antonin Scalia had already started waging the next war - the battle over gay marriage.

...

Scalia warned that although the six judges in the majority insisted their ruling has no impact on allowing gay marriages, "Don't you believe it." "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions," he insisted.

Polls consistently show that while most Americans support some form of gay rights, a majority still oppose allowing homosexuals to join in marriage.

...

Malcolm Lazin of the Equality Forum, the Philadelphia-based annual gay and lesbian gathering, disagrees with Scalia on everything but one point: that gay marriage - recently given the OK in neighboring Canada - is going to be the next battleground over gay rights and morality. He said a pending decision by the Massachusetts Supreme Court in a lawsuit brought by men turned down for a marriage license could provide the next spark.

Lazin agreed that the ruling may be a tipping point in the national debate that took center stage this spring when Santorum made his controversial remarks in an interview.

...

But some of those issues are still going to relate to gay rights, not to mention issues of sex and morality. Lazin ticked off a long list of gay-rights issues that have not yet been resolved, including whether homosexuals can join the Boy Scouts or openly serve in the military.

"Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools or as boarders in their home," Scalia said in his opinion yesterday. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

[RonF]

First, I wonder why Malcom Lazin would figure that this SC decision settles various questions once and for all, but that the Dale SC decision doesn't settle whether or not homosexuals can be in the BSA once and for all. It's the same set of justices, and the issues the questions raised and were decided on were quite different.

I also have a prediction on homosexual marriages. Should the SC rule sometime in the near future strike down laws banning them, within two years they'll be overruled by a Constitutional Amendment. In their euphoria over this ruling, homosexual rights activists very much mistake the issues involved and the public tenor on this topic.

Favoring the right of people to engage in various sexual practices without having cops break down your doors to break it up is one thing. I'm not surprised at the public feeling on that. But as any married person can tell you, sex doesn't equal marriage. There are numerous sexual relationships that aren't viewed as leading to marriage, and being allowed to legally have sex with a particular person doesn't mean that marriage between those two persons is legal.

Secular marriage gives state sanction to the bonding of two people for various purposes. And although we have separation of church and state, the public perception of marriage has a spiritual component, even if the ceremony itself takes place at the County courthouse. The public can tolerate something that goes on behind closed doors between consenting adults, but asking them to bless it and give it legal and societial sanction is different. As homosexual rights activists will find out when they put it to the test.

[You Dirty Rats]

Many married people would also say that marriage doesn't equal sex.

Fortunately, I'm not one of them :)

[AntiGuv]

First, I wonder why Malcom Lazin would figure that this SC decision settles various questions once and for all, but that the Dale SC decision doesn't settle whether or not homosexuals can be in the BSA once and for all. It's the same set of justices, and the issues the questions raised and were decided on were quite different.

The reason is obvious: because those who would retain sodomy statutes know that the majority is against them, so they have to raise the spectre of gay marriage or gay scouts to drive their rhetoric..

Otherwise, had Lawrence been an Equal Protection ruling, then you would have a conflict with the Dale ruling as well as Don't Ask - Don't Tell. However, since this was a Due Process (right to privacy) ruling, there's no conflict with the latter.

If marriage becomes an issue before the Court, it will be on the basis of Full Faith and Credit, not on Due Process or Equal Protection (at least not anytime soon).

[RAT Patrol]

In reading Kennedy's words, don't you think he has done some changing since Dale? It looks like this Court is quite comfortable with changing their minds. Prepare yourself well (you always do).

[Travis McGee]

Why only two persons? What's so important about two people forming a marriage? If two men or two women can marry, why not three or five? If there is nothing unique about a marriage being the union of one man and one woman, then why the hangup on the number two?

And by what rationale may a state now forbid bestiality, or consensual (in the will) necrophilia or cannibalism? What if a deceased "life partner" consents to having his tattooed skin made into outerwear for his life-partner?

After this ruling, every father is free to spend 18 years seducing his children, and taking them as sex partners on their 18th birthdays, and even marrying them.

Can anyone explain to me why states may NOT outlaw one perversion, but MAY outlaw other "consensual" perversions, such as the ones I have listed?

[Jeff Chandler]

>>Can anyone explain to me why states may NOT outlaw one perversion, but MAY outlaw other "consensual" perversions, such as the ones I have listed?<<

The states may not outlaw ANYTHING the Supremely Supreme Court Justices don't feel like allowing them to outlaw.

[RonF]

This ruling concerns a sexual relationship between two consenting adults. The legality of sexual relationships that involve at least one entity who is legally defined as being unable to give consent due to a lack of capacity (age or mental status) aren't affected.

[AntiGuv]

Why only two persons? What's so important about two people forming a marriage? If two men or two women can marry, why not three or five?

As a point of law, marriage is a government institution to begin with, and so the government may regulate that institution accordingly. The correct parallel would be that between sodomy & adultery, not between sodomy & bigamy.

And by what rationale may a state now forbid bestiality, or consensual (in the will) necrophilia or cannibalism?

Many states (including Texas) don't forbid bestiality - and really have no legal basis for doing so except as a form of animal cruelty. As for necrophilia, I think that's outlawed in only 24 states; forty years ago it was legal in every state. However, it has been decided that one's dignity in life extends somewhat to dignity in death, and so both necrophilia and cannibalism falls under that realm (i.e. desecration). I'm altogether uncertain how the law would regard an outright contractual agreement by one person to permit his or her sexual use and/or consumption after death....

After this ruling, every father is free to spend 18 years seducing his children, and taking them as sex partners on their 18th birthdays, and even marrying them.

On the final point, marriage itself is a government institution which the government may regulate accordingly. As for the first point, seduction prior to the age of consent would still violate child welfare laws. As for the middle point, that's slightly more problematic, but it's generally agreed that incest prohibitions pass the rational review threshold due to the state's interest in regulating inbreeding..

[af_vet_1981]

This ruling concerns a sexual relationship between two consenting adults. The legality of sexual relationships that involve at least one entity who is legally defined as being unable to give consent due to a lack of capacity (age or mental status) aren't affected. yet

There is nothing in their reasoning to prevent it. They have no foundation to rest upon. They are making it up as they go, perhaps even subject to the latest in the porn fashion market.

As Justice Scalia pointed out, the battle lines are drawn, they are coming for us and our children. It is only a matter of time. It's really a shame Pat Buchanan is anti-Israel.

[Conservative til I die]

Give it 20 years and public sentiment will change. Gay marriage will be a reality. Don't get complacent and think that these obscure SC decisions don't actually mean anything as it regards public opinion or legal precedent. What's being done here is that barrier after barrier is being struck down.

When a gay marriage case comes to the SC, we'll get a Shylock speech ("If you prick us do we not bleed, if you tell a joke, do we not laugh?") accompanied by melodramatic revisionist films in the vein of "And the Band Played On" or "The Laramie Project" or even "Boys Don't Cry" which had the hilarious tagline about "Having the courage to be yourself (while taping your breasts down, stuffing rolled up sweatsocks in your pants and misleading the girl you love by telling her you're a man)."

Again, I think the antiquated sodomy laws are dumb, but the Supreme Court set bad precedent by being activists on this one. A very bad precedent that's going to open up Pandora's Box.

[sourcery]

incest prohibitions pass the rational review threshold due to the state's interest in regulating inbreeding.

Yes, because there is substantial risk of causing harm to any offspring, thus violating the rights of said offspring.

[Conservative til I die]

it's generally agreed that incest prohibitions pass the rational review threshold due to the state's interest in regulating inbreeding..

OK, but your argument here sets a bad precedent :

If the state has an interest (question: what type of interest, and would it hold up in a court of law?) in regulating (read: preventing) the effects of inbreeding (read: deformity or undesriable mental or physical traits) what is to prevent the government from preventing breeding by other "undesirables" that has a self-proclaimed "interest" in breeding? Preventing two alcoholics from having kids? Forcing abortions on pregnant mentally disabled people? Making it a felony for obese people to have children since their kids will likely be obese, thus being a burden on health resources and generally being unpleasant to look at.

It dangerously comes close to setting a precedent for a form of eugenics.

Let me add the usual disclaimer that I think incest is abhorrent, although to be fair, marriage between cousins -including first cousins- is legal in something like 30 states (not all of them redneck states either), and America is one of the few places where there is a taboo on it in Western Civilization, and studies show that there is not that much risk of heightened genetic deformity in the offspring of incestious parents.

However, you can't have your cake and eat it too on this one. You can't say on the one hand that government shouldn't be allowed in the bedrooms because government doesn't have the right to judge whether the acts of these people are moral or not, and then say that it is OK in some cases to judge these people's acts as moral or immoral. Because then it becomes obvious that we're making subjective judgements on morality based on popular opinion. Gays are popular, relatively speaking. Incestious cousins are not. But our Constitution is founded on principle, not trends. What goes for one interest group should go for another.

And anyway, your argument doesn't hold based on the idea that there is a health interest in preventing incestuous sex because one could also make the argument that gay sex puts a burden on the healthcare system by allowing the convenient spread of HIV and a myriad of other STDs. Again, these are subjective opinions, but to say it's OK for gays but not for others is clearly playing favorites.

Let's face it, all these laws are based on morality. And that's *JUST FINE* because the 10th Amendment generally allows states to make laws to reflect their own values and morality, provided they don't violate the Constitutional rights we all possess.

[Travis McGee]

So why can't a dying life partner give consent on video tape and in his will before witnesses that he wishes his surviving life partner to engage in necrophilia with his corpse?

Why can't a father spend 17 years seducing his daughter (or son) and then consumate their "love" beginning on his or her 18th birthday? The 18 year old would be giving legal consent.

How can a state outlaw the above acts, but not sodomy?

[Travis McGee]

Balderdash. The state would have more reason to forbid women over 40 from having first children, rather than incest, if inbreeding was the concern. The state would absolutely forbid marriage between tay-sachs carriers, for example, but they don't.

A father may now seduce his children (not touching them "improperly" and bed them on their 18th birthday. It's consensual, and private!

[Travis McGee]

So what if "daddy" gets a vasectomy before consensually bedding or wedding his 18 year old daughter?

And if gay marriage is okay, then there is no inbreeding arguement against "daddy" marrying his seduced sons on their 18th birthday.

If it was about inbreeding and genetic damage, 40 year old women would be forbidden to have first children.

[Travis McGee]

Right on!

[HurkinMcGurkin]

There is nothing in their reasoning to prevent it. They have no foundation to rest upon.

Once again, for all those who apparently wont read the majority opinion:

from Kennedy's opinion:

"The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter".

If that isn't clear, there is nothing in this decision based upon the case at hand that gives any legal arguments to public sex or government recognized queer marriages. The homos can clain some sort of "victory" all they want, but the things the radicals wan't will not come to pass because of this decision.

[af_vet_1981]

Did you read Scalia's dissent where he dealt with Kennedy's opinion ?

[MEGoody]

"The reason is obvious: because those who would retain sodomy statutes know that the majority is against them, so they have to raise the spectre of gay marriage or gay scouts to drive their rhetoric."

They aren't the only ones raising the 'spectre' of gay marriage and so forth. The gays were dancing in the streets yesterday (at least some of them) talking about how this was the first step in 'ending discriminiation.' The legal recognition of gay marriages was one of the 'spectres' they raised.