Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter ^ | 6/27/03 | Deal Hudson

[Polycarp]

Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter

June 27, 2003

**********************************************

There has been a lot of lot of talk since yesterday's Supreme Court decision in the case of Lawrence v. Texas, a dispute over Texas' law making sodomy illegal. The Supreme Court overturned that law by a vote of 6 to 3, saying that such laws "demean the lives of homosexual persons" and infringe upon their right to privacy.

Let me tell you right now: Lawrence is a devastating decision, worse than most people think -- and for reasons that haven't fully dawned on them yet.

I have to admit, the implications of this decision hadn't occurred to me yet, either, but after talking to my friend Professor Robert George of Princeton this morning, I can say that this is without question the most damaging decision handed down by the courts since Roe v. Wade -- one that will have even more far-reaching effects than its predecessor.

George is a political philosopher and a very smart guy. He pointed out a few things about the decision that I hadn't noticed. And because this decision is so huge, I wanted to make sure that I passed on his concerns to you.

Believe me, this is vitally important.

First, a little background history. As you may already know, Roe v. Wade based its decision to make abortion legal upon a woman's right to privacy, which the court found in the 14th amendment in the Constitution. The problem is, the 14th amendment doesn't give a person a right to privacy. What the 14th amendment REALLY guarantees is that no state "shall deprive any person of life, liberty, or property, without due process of the law." You won't find a right to privacy here or in any other part of the Constitution.

The 14th amendment only protects rights by due process, meaning that they can't be taken from you except by formal procedures in accordance with established law. In other words, you can't be executed (deprived of life), jailed (deprived of liberty), or fined (deprived of property) without the government going through the proper procedure of arresting you, giving you a fair trial, and so on.

So what does this have to do with a right to privacy? Absolutely nothing. And yet this is what the Roe decision is based on. Legal scholars, both conservative and liberal alike, have denounced this faulty reasoning that they call "substantive due process." It's really a contradiction in terms: Instead of simply guaranteeing that you will receive certain treatment by the law, the law has been stretched to mean that you will also be guaranteed a certain RESULT.

What began in Roe has now come to fruition in Lawrence: A certain privileged class of actions is being protected from legal restriction by the Supreme Court. First abortion, now sodomy -- what will be next? Euthanasia?

It's up to the people to vote into effect certain laws through their legislature. It's the only fair way of guaranteeing that what the people want becomes the law of the land, rather than what a few justices on the Supreme Court want.

But this, George explained to me, is what happened in Roe v. Wade. The justices forced their hand to produce a certain outcome. Since then, the Supreme Court has avoided using the tricky (and completely false) "substantive due process" rationale in deciding cases.

That is, until now.

The six justices who voted to repeal the sodomy law yesterday did so because they said the law produced an unfair outcome -- unfair because it discriminates against homosexuals.

But the law was enacted according to the rules of due process -- the people supported it, the state legislature wrote it, and the governor signed it. There is nothing unfair about the process it underwent in becoming law. If people today feel that the law is unfair or outdated, they can vote to repeal it just as they voted to enact it, and THAT would be a fair process.

But for the COURT to say that the law produced an unfair outcome takes this power from the people and puts it in the hands of nine Supreme Court justices. This was certainly never the intention of the 14th amendment.

Nevertheless, that's what the Supreme Court did. And not only that -- in his statement for the court, Justice Anthony Kennedy made his decision so broad that ANY case that comes before the court in the future could appeal to "substantive due process" to dispense with the law and get the outcome they want.

And that is what's really scary about this decision. With Roe, the decision applied only to abortion rights. But with Lawrence, the door has been opened for other kinds of sexual behavior to be exempted from restrictive legislation as well.

For example, if a case comes before the Supreme Court arguing in favor of incest, according to the Lawrence decision, there's no reason why incest should be outlawed. The court no longer has any principled basis for upholding laws that prohibit incest, bigamy, bestiality, you name it.

So what does this mean for the future? Well, think about this: Because Texas' sodomy law has been struck down, all the remaining states with sodomy laws will have to dispense with them as well.

And what about homosexual marriage? The Massachusetts legislature is considering that issue right now. If they decide in favor of it, any homosexual marriage contracted in Massachusetts has to be acknowledged in every other state.

With sodomy laws still in place, this wouldn't have been the case. No state is forced to accept contracts from another state that go against their own laws and policies. But now that the sodomy laws will be removed, no state has a legal defense against homosexual marriage. They'll all fall like dominoes.

The LAST HOPE for defeating homosexual marriage lies in a Constitutional amendment that explicitly defines marriage as the union of one man and one woman. The Alliance for Marriage, headed up by Matt Daniels, is leading the way in calling for the Federal Marriage Amendment to do just that.

If the Supreme Court finds the amendment unconstitutional -- which, thanks to Lawrence, they now claim the right to do -- then we're sunk. The homosexual agenda will have won the day.

And this is why it's absolutely CRUCIAL that Catholics, Evangelicals, and all social conservatives in America band together NOW to stop them. There has been infighting among the groups in the past -- some think the Federal Marriage Amendment is too strong, others think it isn't strong enough -- but we have to put those differences aside and make the best we can with what we have.

CRISIS ran an article on just this problem in our July/August issue last year, "Can Same-Sex Marriage Be Stopped?", encouraging people to take note of the slow change that is already beginning. With Lawrence decided, we can't spare another minute. Visit the Alliance's Website, www.allianceformarriage.org, to find out more about how you can help.

I hate to end on such a grim note before the weekend, but I wanted to get this out to you as quickly as I could. The sooner we understand the danger that marriage in America is in, the sooner we can act to save it.

Til next time, Deal

[Jim Noble]

But to say that private sexual transactions between consenting adults may be criminalized, is to ignore the 9th Amendment and give it no effect whatsoever.

The authors of IX recogized,as you do not, that such "transactions" seldom are truly private.

[aristeides]

The Supreme Court's order in Limon vacated the Kansas court's judgment and instructed it to reconsider the case in the light of Lawrence.

[cherrycapital]

A 17 year sentence vs. a 15 months sentence has no rational basis.

[Sabertooth]

Or, in the words of the court, "uncommonly silly."

Those were actually the words of Clarence Thomas in his concurrence with Scalia's dissent. Thomas held that the silly law was Constitutional, and that the SCOTUS had no legitimate basis to strike it down.

[tdadams]

I haven't thought about the issue enough to have a considered opinion.

Well it's nice of you to make this confession after you've launched a bellicose tirade about it.

[Jim Noble]

If all bad laws are going to be declared unconstitutional, we're in a heap of trouble

Especially if the grounds to strike them down is the power of the Court as an embodiment of the General Will.

That will lead HERE in short order.

[tdadams]

If all bad laws are going to be declared unconstitutional, we're in a heap of trouble.

Really? Why is that? I would think striking down bad law would be a good thing.

[aristeides]

That's as conclusory a statement as the Supreme Court's was in Lawrence that sodomy laws lack any conceivable rational basis, in what purported to be rational review.

[Hat-Trick]

What about the 4th Amendment. Do we not find a right to privacy somewhere in here:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Hat-Trick

[aristeides]

My tirade is against declaring the law unconstitutional. That I certainly have thought about.

[cherrycapital]

Yes, it's come to be known as "rational relations with teeth" which is a long overdue development.

[Reactionary]

It's spelled "fallacy." Fool.

[aristeides]

I take it you would be happy to be ruled by philosopher kings who have absolute power. No thanks.

[Schuck]

A contrarian view...

While I agree this case was wrongly decided (see Justice Scalia's excellent dissent), I'm not sure we are headed down the slippery slope.

Years ago, the Court ruled that illegal immigrant children had to be allowed to attend public school. (I'm too lazy to look up the case name or cite, think it was a Texas case). Everyone predicted that was it, it was just a matter of litigation until illegals had every right that citizens have. Didn't happen. While there may be one or two more exceptions, the Court has refused several times to extend other constitutional rights to illegals - that's why we can have "military tribunals" for terrorists, for example.

Why only the right to attend school? My theory is that the Justices let their desire to be charitable and offer a hand up trump the Constitution, and issued sort of a "one-time" exception. Legislating from the bench? Yes. Wrong? In my opinion, yes. But understandable - I think the thought of kicking poor children out of school onto the streets would give even the most hardened conservative pause.

Flash forward to Lawrence. The Texas law was archaic and, in Justice Thomas' words, "silly." The Legislature should have repealed it years ago, it was an invitation to discriminatory enforcement. It needed to go. So the Justices bent the Constituion this one time. I suspect when the issue is gay marriage (or polygamy or drug use or euthanasia) the Court will find an excuse to back-pedal away from their reasoning and let this decision stand as a one-time freak.

[aristeides]

You call it "overdue," I call it fundamentally dishonest.

[cherrycapital]

Better by far than the yahoos and pinheads in the state legislature.

[tpaine]

I disagree with the whole substantive due process reasoning, by the way, for the same reasons mentioned by the article. However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)
22 -cc-



Our general rights to life, liberty, and property encompass ~all~ of our unenumerated and enumerated rights that can be imagined..

IE.. It is doubtful that any rational person would argue against our right to live a 'private' life, secure in our homes and persons.
- Thus, does it not reasonably follow; - we have an unenumerated, fundamental right to privacy, found under both the 9th & 14th amendments.

In the same way, we can find our right to keep arms in both the 2nd, and in the 14ths restriction that we can not be deprived of property without due process of law.

Prohibitory state laws against behaviors or property can not be termed to be 'due process'. - They are simply the arbitrary rules of a majority.

[Western Phil]

The supreme court said the punishment must be the same. They in no way argued about the length a state can impose, only that the punishment must be equal.

You seem to be arguing that statuary rape and statuary sodomy should be punished the same. The crime is not the same and why should the punishment be the same?

[B-Chan]

If my kids want to be gay, that is a-ok with me.

Then I pity you, my friend. Would it be "okay with you" if they decide to become alcoholics? How about heroin addicts? Or necrophiliacs? Just more alternative lifestyle choices, right?

You can have all the Judeo-Christian culture you want in your own homes and churches.

Not for much longer. Pretty soon people with your sentiments will be locking up us "hate criminals" for what we do in our homes and churches.

Besides, it's not "culture" unless it's public and common to the majority of the population.

But the government is not your private goon squad for the enforcement of Christian morals. At least not anymore.

In general, the goon squads used to enforce the common morals of Western civilization, not specifically Christian morals. Some communities had laws that were specifically based on Christianity, true, but most laws enforced by the goon squads were based upon common-law restrictions on behaviors that were considered evil by people in all Western cultures -- you know, things like murder, rape, sodomy, and so forth.

But you're right -- we as a society won't enforce those laws anymore. The New Order has come swept away those tired old relics of a less-enlightened age! Behold, all things are made new!

But the goon squads remain. The question is: whose morals will they enforce now?

[aristeides]

Doesn't Limon show that Lawrence is already more than a one-time freak?

My chief reason for supporting the sort of amendment that this thread is about is that it might persuade the Supreme Court to severely limit the application of Lawrence.