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

[Sabertooth]

I don't think Kennedy's waxing prose is very conducive to being applied to incest. I doubt very much that the extension of Lawrence to incest will happen (and its posited extension to beastiality is just plain silly)

Fifty years ago, even twenty years ago, the very rationale used by Kennedy to strike down the Texas sodomy law, and the outcome of that rationale, would have been regarded as silly. That something is silly is no longer a good indication that some court will not make a ruling based on that silliness.

At my daughter's school, where 16 year-olds are given their own Escalades and Lexi, tongue-piercing is rather popular among the girls. Why? Because apparently it enables them to give more pleasurable oral gratification to their boyfirends, and and between hook-ups their ability and willingness to do so. (at this point, my daughter doesn't even have pierced ears, whew!).

These are the Children of Clinton, who were raised watching Jerry Springer. Springer drew the line (but only after a pre-broadcast outcry, the show was taped) at bestiality, but incest between hotties was good for Sweeps.

"Animal rights" is a phrase that is bandied without fear of derision, and is taught in Harvard Law, and will undoubtedly spread to other law schools so long as judges can rule with whimsy from the bench. When the Springer/Clinton kids sit on the bench after 30 years of more "emerging awareness," how can there be any confidence that they'll see any silliness in rullngs favoring incest and bestiality?

[tdadams]

Like I said, you really shouldn't presume to know much about who you're talking to. If you'd like an executive summary of other pivotal USSC cases (Pierce -1925, Meyer -1923, Skinner -1942, or Aptheker -1964) just let me know.

Instead of hammering into submission everyone who seems to stray from your definition of "conservative", why don't you try to conceive that your opinion is not universal truth.

[sinkspur]

Isn't that beside the point. The citizens of the state, operating through their legislature, decided that one was worse than the other. Shouldn't they be able to make that determination?

What was the basis for the decision?

If the same legislature decided to punish red heads who violate speed limits by doubling the fines, shouldn't they be able to do that as well?

[Sabertooth]

How can you be so sure they're not simply aficianados who like to trade their wares? Ask any cop who works on kiddie porn cases. Nearly all of it is freely traded by aficianados.

There are over 39,000 barnyard sex sites linked at Google. Start clicking and tell me there aren't a ton of for-profit sites.

[sinkspur]

Upholding the sentence while noting that the law is unconstittional to the extent it lacks a rational basis for having a harsher sentence for lesbian rape, would be mere dictum.

I'm not sure I understand. The sentence was the issue, not the underlying law.

[Torie]

You can see the "son of Kennedy" writing thusly then:

"To criminalize the act of a person having intimate relations with his best friend, his dog, where there is no evidence that undue force was used in the union, when done in the privacy of one's own backyard that is screened from all the neighbors, is a denial of substantive due process in denying the liberty of the person's expression of his essential humanity to bond with his pet."

Whatever

[tdadams]

That's not exactly a strong argument you know. As I type in "Ronald Reagan" and "sex" I get 75,800 hits. Are all those Reagan porn sites? What a stud the old man is.

[Torie]

No, it was not about the sentence's draconianess, it was about the sentence prescribed in the law being harsher for homosexual rape than heterosexual rape.

[Arkinsaw]

Is there a lot of incest going on? I don't remember ever hearing about adults charged with incest.

The lawyers will find some who want to bring a case.

If kids are involved, this ruling is not applicable, as it's not consensual privacy.

True in a sense. Of course it has been determined that kids can have abortion on their own so one has to wonder just how firm that line in the sand is. In other words they are too young to consent to sex but plenty old enough to consent to abort the results.

Does anyone believe that even if this could be applied to incest, consensual adult incest would become a problem.

I can certainly see the State of Utah having a problem with multiple marriage cases and I certainly see the door opened to same sex marriages. At most, there will be a few incest cases designed to test the limits.

[Sabertooth]

You can see the "son of Kennedy" writing thusly then:

Sooner than you think, with an underwater asphyxiation clause as well.

[Polycarp]

Like I said, you really shouldn't presume to know

Like I said, my only sin of presumption was towards you personally. But you are a rare exception, so my general presumption still stands.

Instead of hammering into submission everyone who seems to

I don't very often succeed in hammering anyone into submission here. Not for lack of trying, mind you; I have a reputation to uphold ;-)

--Polycarp, founder and sole member, CKCA

[stop_fascism]

Yes. The constitution doesn't protect hair color. Does that mean it's a good law? No. But as justice Thomas said, the constitution doesn't protect us from silly laws.

On the other hand, the legislature couldn't double the fine on black people, because the constitution explicitly prohibits that.

[Polycarp]

This was a very sensible, conservative, anti- big government decision.

It must be nice and cozy in that fantasyland your mind inhabits. Probably a nice place to visit, but I fear you've lived there too long.

[tpaine]

You argue against a right to privacy..
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: - That 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.
-203-


I can imagine that an Amendment guaranteeing a right to privacy would have been ratified by the Founders, but not if it was understood by them to give legal protection to buggery.
-Sabertooth-



Fundamental rights, like privacy, protect everyone, 'morally' deviate or not. - Buggery is nasty sex, granted. But as a consensual act it is not criminal.

-- Irrational, prohibitive laws are also nasty, in that they jail people for what are decreed to be 'evil' possessions or 'sinful' acts.
Thus, such 'laws' are criminal in themselves, under our constitution.

[Eastbound]

Is that all you have to say?

Well, yes. I thought the implication was obvious. If the Supreme Court can do away with guilt, who needs conscience? If there is no conscience, there is no 'right' or 'wrong.' If there is no right or wrong, who needs laws in the first place.

Once the Supreme Court manages to opine away all guilt, it can permanently retire, having nothing left to do except include their memoirs in the last chapter of "The Rise and Fall of Civilization -- The Failure of the Great Experiment."

[Luis Gonzalez]

What's truly amazing to me is the hypocrisy of those crying about this SCOTUS decision as if it signifies the fall of Western civilization as we know it.

I wonder where the outrage was when Texas created the right to sodomy, and make no mistake, the SCOTUS did not create the right to sodomy, Texas and any other State that decriminalized sodomy for heterosexuals created the right to sodomy.

In the case of Texas, they replaced an older law which made sodomy illegal for all, with newer statutes and laws which clearly labeled sodomy as "deviant sexual intercourse", but lifted the criminality from the majority of the citizens.

Texas in fact, gave 97% of it's citizens the right to commit sodomy, all that the SCOTUS did was allow the remaining 3% to enjoy the same right.

[P-Marlowe]

You argue against a right to privacy..

No. I argue against the Supreme court stating that there is a constitutional right to abortion that is contained in the "penumbras" of the constitution that prohibits states from regulating certain behaviors and actions that the states and local governments deem inappropriate.

There is no right in the federal constitution. Indeed the Federal Constitution prohibits the Federal Courts from even ruling on these state matters, yet this so-called right to privacy has been used as a tool to remove democracy and repubican government from the control of the people.

I perceive that you are an anarchist or some kind of libertairan. Well this decision will have exactly the opposite effect that you hope it does. Your hope for libertarianism is to ensure that local control of government is not usurped by federal control. That's what happened here.

Enjoy your little pyrrhic victory. It will be short-lived. You will regret the day you championed this decision.

[Luis Gonzalez]

"In other words they are too young to consent to sex..."

That's not the only dynamic involved, the second, and most important dynamic is that an adult may not accept a minor's consent.

[stop_fascism]

The right to privacy suddenly appeared one day to legitimize the supreme court's meddling in a debate that should have remained at the state level. That is why I'm skeptical. Somehow the country had gotten along quite well without that right for almost two hundred years. Since the right was "discovered" society has degenerated, in my opinion. I believe there is a correlation.

[jwalsh07]

And suppose this ongoing bit of hand wringing has sapped you of any sense of humor too.

Only you knew for sure if it was offered in jest. If it was, then I apologise for being bereft of a snese of humor.