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

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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

[bvw]

That's also the case in Jewish law, Witness Lot's offering his two daughters to be raped by the crowd in Sodom rather than the male guests he had.

[tdadams]

Thank you. That makes a little more sense. By the way, have you taken your blood pressure medication yet?

[Jhoffa_]

There used to be anti-sodomy laws in all 50 states. One by one as they were repealed, did we see people going down that slippery slope, asserting their right to sleep with goats?

As a matter of fact, we have seen this come out of the closet recently.. Look to internet "sex" sites. Listen to Larry Flynt. (he's a chicken screwer) Look at NAMBLA.

Incrementalism does exist.. The 2A is proof of such.

For you to poo-poo the obvious carries with it an implicit insult to the reader.

Also, when those laws were repealed, they were done so by the people of the States, in a lawful manner... Just as they were enacted int he first place. That's simple and it's fair.

Now however, you have the SC mandating a repeal and forcing their personal biases down the throats of everyone, everywhere, universally and without regard for the Tenth Amendment.

In addition, if copulation is a Constitutionally protected "right" and the Tenth Amendment is null and void, you will be hard pressed to find an argument to prevent gay marriage, homosexual sodomy, pedophelia, prostitution, bestality and so on and so forth..

The margins are eroding and the FED no right to meddle here.

These are clearly Tenth Amendment concerns.. and as such, fall to the states.

[Sabertooth]

To judge by Limon, that unenumerated right appears to include (consensual?) sex with 14-year-olds, at least if it's homosexual sex. Otherwise the Supreme Court would have routinely upheld the sentencing disparity under conventional rational-basis review.

Homosexual incest is the probable door through which a general right to incest is discovered. What is the compelling state interest in prohibiting sodomy between two adult brothers, or sisters?

As of Thursday, there is none. From there, we're an equal protection argument away from a general right to consensual adult incest.

The genetic objection to a legalization of incest is already on shaky ground, since most incest doesn't result in birth defects. Those who want to discover a right to sodomy, but hold the ground on incest because of the possibililty of birth defects, will have to cartwheel like a gymnast to explain why there isn't a state interest in regulating all extramarital heterosexual sex, since STDs can also induce birth defects.

[sinkspur]

That's why there has been such an outcry against the sex scandal in the Roman Catholic Church. If the offenses had only been heterosexual in nature, the headlines would not have been as big or lasted as long.

Because the priests would have been shown the door immediately.

It was not the nature of the offenses that has caused the scandal (because those offenses exist in other institutions as well), but the cover-up of those scandals by the bishops, and the willingness to tolerate the presence in the priesthood of child molesters.

That was the scandal.

If the bishops of the Catholic Church had handled homosexual molestation the way they handle a cleric who strays with a woman, there would be no scandal.

We know, of course, that those wayward priests are dismissed immediately, and no bishop ever fights to retain a priest who's sinned with a female.

[Dog Anchor]

I applaud your post. . .at least one person is
seeing the true danger in this decision.

ABROGATION OF STATES RIGHTS

One small step for the dysfunctional, one giant leap
for totalitarianism.

[mrsmith]

"...each time it is amended it changes... Why is this concept so difficult for people to grasp?"

Because rulings like this show that it doesn't need to be amended to change.
No amendment has changed the constitutionality of these laws, it was done by a court.

And, as is shown by the responses to this ruling on FR, that is how many people expect the Constitution to be changed.

Why would we ever pass another amendment...

There is certainly no need to amend a 'living Constitution'.

[billbears]

News flash, neither the Constitution nor the Bill of Rights was ever intended to be an exhaustive enumeration of a person's rights

You are one hundred percent correct. And the Founders even planned for that.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

And SCOTUS finished destroying what was left of that Amendment in 1973 and now here in 2003. The Republic is dead, welcome to the Empire

[Sabertooth]

Thomas was quoting Justice Black from the Griswold v. Connecticut case.

Did Black hold that laws could be ruled unconstitutional because they're "uncommonly silly?" Thomas clearly didn't.

[stop_fascism]

Why then didn't the writers of the 9th amendment demand that the sodomy laws in their home states be invalidated?

[Buck W.]

Logically, legalizing gay marriage would then lead to the acceptance and legalization of human/gerbil marriage.

[Polycarp]

getting "molested" by a 300 lb. Bubba

Nope. I'm bigger and badder than your Bubba.

[tdadams]

No he didn't but if you can find where I said he did, you'll win a prize.

[Eastbound]

"Don't you Bible-beaters have something better to do than worry about other people's sex lives?"

I don't think it's about sex. It's about government (man) deciding what a person should feel guilty about when that is the province of God.

[P-Marlowe]

Enactment of an amendment like the one the article calls for might be a sufficient rebuke to the Supreme Court to limit Lawrence to sodomy laws.

Dream on. If the people passed a constitutional amendment to overturn the Lawrence decision, the Supreme Court could merely interpret that amendment in such a way as to make it meaningless. The 10th amendment states clearly that the courts cannot do what they did in the Lawrence Decision. But the courts have rendered the 10th amendment meaningless by interpreting it in such a way as to give it no meaning at all.

The answer is to impeach these 6 justices for violating their oath to uphold and defend that constitution and replace them all with judges who have respect for constitution.

Frankly I'm not too optimistic. We have gone over the hill on the slippery slope. From here it will only get worse.

[Polycarp]

The courts have stolen the constitutional legislative power from the states and from the people.

Maybe so, but it didn't happen with this case. You can thank Roe for that.

Wrong. Roe was based on Griswold versus Connecticut. But only Catholics care or know about that decision (with a few notable exceptions) and understand the undeniable link between Griswold, Roe, and Lawrence.

[tdadams]

Also, when those laws were repealed, they were done so by the people of the States, in a lawful manner... Just as they were enacted int he first place. That's simple and it's fair.

Guess again. Of the eleven states to abolish their anti-sodomy laws in the wake of Bowers, ten did so by ruling of the state court.

[Jhoffa_]

Guess again. Of the eleven states to abolish their anti-sodomy laws in the wake of Bowers, ten did so by ruling of the state court.

And as such, it's an internal matter..

It's a far cry from a one size fits all "solution" from the SC.

[bvw]

Any tether to rule of law has been cut with this ruling. I started an FR thread late yesterday on Judicial Impeachment. It is at "Impeach THE Six Supreme Court Justices".