Posted on 06/27/2003 11:09:08 PM PDT by LdSentinal
THE SUPREME COURT yesterday proclaimed that there is a constitutional right as well as a fundamental human right to engage in sodomy. The prevailing cultural winds are indeed blowing toward widespread public acceptance of this premise. So as it did with Roe v. Wade three decades ago, the court yesterday employed deliberately sloppy reasoning for the purpose of reaching a moral rather than a legal conclusion on a matter of constitutional law.
The case involved two homosexual men who were arrested and imprisoned under a Texas law that forbade homosexual sodomy. Justice Anthony Kennedy, writing for the majority, ruled that the 14th Amendment’s due process clause (“nor shall any State deprive any person of life, liberty, or property without due process of law”) means that no state may outlaw homosexual sodomy because homosexual sodomy is a “liberty” protected by that clause of the constitution.
Not even the two homosexual men who brought this case based it upon that argument. They claimed that homosexual sodomy is protected by the equal protection clause of the 14th Amendment, which says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” As Justice Antonin Scalia duly noted in his dissent, the due process clause explicitly allows states to deprive individuals of their rights provided they do so by following the due process of the law.
Justice Sandra Day O’Connor agreed with the plaintiffs that the Texas statute violated the equal protection clause because it outlawed homosexual sodomy but not heterosexual sodomy, which is exactly what the plaintiffs had argued. This argument is problematic, but it is far more legally sound than the rationale used by Kennedy.
Justice Clarence Thomas had the best lines of the day. He wrote:
“I write separately to note that the law before the Court today ‘is . . . uncommonly silly.’ . . . If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
“Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to decide cases ‘agreeably to the Constitution and laws of the United States.’ . . . And, just like Justice Stewart, I ‘can find (neither in the Bill of Rights nor any other part of the Constitution a) general right of privacy,’ or as the Court terms it today, the ‘liberty of the person both in its spatial and more transcendent dimensions.’”
Thomas had it right. In striking down Texas’ sodomy law, the court reached a desirable result — the abolition of a “silly” law — via undesirable means — twisting the meaning of the Constitution.
Yes, he was. And so is Scalia. In my life I have never read an opinion using more tortured logic than this. They simply changed all the rules with a wave of the supreme liberal judicial hand, by fiat. I don't think even the majority fully understands what is going to happen now. The floodgates are truly open and there is no way to shut them off in the near term. This is bad, very bad.
Your question illustrates the whole point. The Constitution doesn't give them power "over" the law. The spirit of the Constitution charges them to interpret "under" the law. This concept is lost among the current Court save for 3 or 4 justices. If Bush and/or the Repubs cave on appointments, we are lost.
This is false. The challenge was brought on both the basis of Equal Protection and Due Process. Nothing in the Opinion of the Court did not appear somewhere in the Due Process challenge in the Lawrence brief....
If this editorialist wants to present an informed viewpoint, perhaps he or she should first inform himself...
As brilliant as Scalia's brilliantly written dissent was, what Thomas wrote echoes my feelings perfectly.
I don't remember anyone in Georgia being charged with criminal sodomy after the affirmation of that state's sodomy law (Bowers vs. Hardwick, 1986), and that law was repealed last year. Now look what's happened -- almost overnight, we've become more Canadian.
I wonder how the joker who prosecuted the two guys feels now. Whoever you are, you were the impetus for the suit heard 'round the world. Was it worth it?
Next up on the SCOTUS superleglislature agenda: gay marriage by judicial fiat. Does anyone really think the federal "Defense of Marriage Act" can and will withstand the onslaught? Gay activists sure don't. They've never felt so confident of a favorable result.
It's a gay new world.
"And Georgia struck down the very same law that the United States Supreme Court upheld in Bowers.." The Georgia Supreme Court noted:
The individual's right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong. Simply because something is beyond the pale of "majoritarian morality" does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers.
Judge refuses to toss same-sex marriage lawsuitThe Jersey JournalSaturday, June 28, 2003
By Tom Bell
Associated Press WriterTRENTON - One day after the U.S. Supreme Court struck down a Texas law banning gay sex, an attorney for seven gay couples argued in a New Jersey courtroom that same-sex marriage should be legally recognized by the state.
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