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

[Luis Gonzalez]

I am curious.

Is sodomy a perverse act in your mind?

[tdadams]

If I was trying to be vindictive, I would have omitted the link showing a post to Chemist_Geek.

[Ohioan]

You cannot with a straight face equate a teenaged boy coming on to a teenaged girl with a teenaged boy forcing deviant and unnatural attentions on another boy. To advocate similar penalties, you have to equate the actions.

While I doubt that Justice Kennedy went so far as to suggest anything so ludicrous; it does show the danger that whatever the Supreme Court did decide, will be deliberately stretched by those with an anti-social agenda.

Frankly, I have not read the decision. But if it was premised upon "privacy," that is 9th Amendment rights--which are protected against Federal intrusion--under some theory of applicability to the States, also--that would not seem to rule out dealing harshly with those who flaunt the conduct that the 6 Justices declared private. Actually, protections from illegal searches, meant that sodomy laws were not actually being enforced, anyway, against those who actually kept their conduct private.

I guess I should stop my keyboard, until I actually see the decision. I would like to suggest a way around it; but without reading it, that would be really foolish. Of course, I can state the completely obvious: This is one more reason for Conservatives to dig their heels in and fight any appointment to the Federal Bench for anyone who is not honorably committed to traditional Constitutional values. And we are not going to be able to stop such appointments, unless we find a lot more men with the strong character of the late Strom Thurmond--who more than any other man was responsible for what Conservatives we do have on the Federal Bench--to send to the Senate.

William Flax Return Of The Gods Web Site

[tdadams]

You could even make a good case that the rarely quoted 3rd Amendment protects the right of privacy in the home.

No soldier shall, in time of peace be quartered in any house, without the consent of the owner

Now why is this? Because it's your property. Your private property.

[Sabertooth]

You argue against a right to privacy..

Not at all, I believe that there is an unenumerated right to privacy, and that the Founders would have agreed.

The question, then, is to what that right of privacy extends. Does it extend to suicide? Consensual homicide? We can all agree that there's a limit somewhere, even if we disagree on where that limit is.

The Founders would not have agreed that there is an unenumerated right to buggery, by way of an extension of the right to privacy. Neither do I.

That doesn't mean I think it's a good idea to throw out California's consenting adult law, or that governments should try to outlaw every possible thing for which we don't have a right.

However, on the basis of the 10th Amendment, that's a matter for the people and the states, not the SCOTUS and the feds.

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

Nonsense, rights don't come from our imaginations, they are unalienable, as they are endowed to us by our Creator.

To assert a right to buggery is to assert that our Creator has endowed us with that right. Those asserting such a right need to provide some evidence that our Creator has done so.

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

Whether or not to criminalize an act for which there is no right an argument for the Texas State Legislature.

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.

Where does the Constitution empower the Supreme Court to strike down laws because they're nasty?

Are you really in such a hurry to eviscerate what's left of the 10th Amendment?

[tdadams]

You cannot with a straight face equate a teenaged boy coming on to a teenaged girl with a teenaged boy forcing deviant and unnatural attentions on another boy.

Another person who wants to throw their comments in the ring without reading the relevant case. Why am I not surprised?

[Sabertooth]

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.

This is not well-reasoned. You're confusing rights with priveleges and prerogatives. That something is legal does not make it a right. Driving is legal, is it a right?

Rights are not created by legality, nor are they destroyed by being outlawed, as they are eternal and unalienable.

Where a law conflicts with a right, that law is struck down and the right is preserved. Rights trump laws. To hold that laws create rights is to say that rights are trumped by laws.

[FreedomCalls]

The Supreme Court can not overturn a Constitutional Amendment.

The Lawrence v. Texas decision overturned the 10th Amendment. The 10th is now null and void.

[FreedomCalls]

"... the right to privacy does not appear in the Constitution, as stated in the article. "

Isn't the right to privacy a part of the 9th Amendment?

[FreedomCalls]

By this ruling doesn't ALL ADULT CONSENSENUAL SEX with other consenting ADULTS become protected private behavior?

Likewise, all the military laws prohibiting "fraternization" between officers and enlisted are out the window.

[dogbyte12]

You cannot with a straight face equate a teenaged boy coming on to a teenaged girl with a teenaged boy forcing deviant and unnatural attentions on another boy. To advocate similar penalties, you have to equate the actions.

A 14 year old boy is highly sexualized by viewing gay porn on the internet let's say. He spots an 18 year old man, and offers to perform a sexual act on him. The 18 year old wrongly accepts the offer. His conscience gets the better of him and he goes to the police and admits to it. That is 17 years in jail.

A 18 year old man for weeks flashes a smile at a chaste 14 year old girl. He tells her that he loves her, but she replies that it is sinful to have unmarried sex. He psychologically batters her for weeks more, saying that he is her one true love, and that if she rejects his advances, she will lose him forever. He demands the same sexual act from her, oral sex. She complies, and as soon as it is completed, he laughs, and says thanks, and goodbye. She reports him to the police. He receives 15 months in jail. They go to jail today. The 18 year old guy who pressured the girl, gets out in September 2004, in time to watch all the new freshman girls enter the high school. The 18 year old gay man who allowed himself to be sodomized by the younger boy is in jail til June 2020.

If you believe justice was done there, your ideas of american jurisprudence and mine differ.

[Torie]

Everybody is saying Lawrence is a privacy case. It is not. Is a case about a new right called the right to the liberty of the fundmental expression of one's essential humanity, which in the case at hand was applied to sodomy when done privately, is unconstitutionally denied. The evil is not in the invasion of one's privacy, but in the denial of the liberty of one class of individuals to express their essential humanity via their chosen form of intimate relationship conducted in a decorous and private way.

That is why this precedent could well be expanded to gay marriage via this newly invented, or at least now turbo-charged, constitutional right. Marriage after all has nothing to do about privacy (indeed marriage to the contrary is all about the expression of one's intimate relationship in the public square). But many argue that the proscription of gay marriage does have everything to do with the with the arbitrary and cruel denial of liberty to folks who are hard wired to be gay, to express their essential humanity via having their intimate relationship sealed through the bond of marriage. Andrew Sullivan had described the issue thusly in almost exactly those words.

Indeed, Kennedy's prose in Lawrence, and Sullivan's, so synchronously echo each other, that it is almost akin to a veritable symphonic score, where the various prose lines seamlessly interweave with each other, such that the echoes become a melodic cornucopia, with the whole being so much more than the sum of its parts.

I hope that helps.

Maybe I should submit an essay to the New York Times on it or something.

[jwalsh07]

They'd say the man. That would be homosexual rape.

The girls,however, would also say the man, and that would be heterosexual rape.

There is no rationale in law to decide that one is more traumatic than the other.

Of course there is, crimes that do more harm to the victim are treated more harshly. If you agree that young boys raped by men would exhibit more trauma, physically or mentally, than young boys raped by women, then that is the all the proof you need to sentence the homosexual rapist to longer time.

If it is true that young girls suffer equal harm from homosexual and heterosexual rape, then you would treat that differently.

In either case, it isn't Anthony Kennedy's decision to make.

[FreedomCalls]

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

It's not about people's sex lives. It's about the process by which laws are made and the powers the people posess to control their own lives. Each state that has a law about sodomy has a method by which that law can be altered of abolished. The general trend is to do so. But this decision subverts that whole process and gives it to unelected judges.

According to the constitution, the federal government can do only those things that the constitution says it can. All other powers are given to the various state governments unless the constitution forbids the states from doing certain enumerated things. No where in the constitution is the power to regulate sexual activity given to the federal government. That therefore is a state power. If you have a problem with the sodomy laws in Texas you can work to get those laws repealed or changed, or you can move to another state that does not have those laws. By taking on this power, yet again, the federal government moves to increase the amount of power held in Washington and lessens that held in your state capital. Yesterday it was gun ownership. Today it is sex. Tomorrow it will parental authority over your children.

You should not dismiss this ruling as a ruling about sex. It is not. It is about control over power and who wields it.

[FreedomCalls]

If the congress and the states pass an amendment that states all cheese except for Extra Sharp cheddar is illegal, the supreme court must honor that as law.

So then, why did the Supreme Court ignore the 10th Amendment in the Lawrence decision? And how does Congress get away with ignoring the 27th Amendment every year?

[jwalsh07]

If you are referring to anal intercourse and/or beastiality, the answer is yes.

[ijcr]

It goes without saying that, under our Constitution, judges have no legitimate power to substitute their personal assessment of the current "will of the people" for its earlier expression in the ratification of the various constitutional articles and amendments. That's what we have elections for. It also goes without saying that judges have no legitimate power to substitute their own policy preferences for "the will of the people." They are only our "agents," after all.

Someone should tell the Supreme court.

[Luis Gonzalez]

"You're confusing rights with priveleges and prerogatives. That something is legal does not make it a right."

Then, when you argued in many previous posts that there was no "right to sodomy" you where debating some other issue and not this case?

This case simply leveled the "privileges" of the people in Texas according to you.

So then, if God deemed sodomy to be a sin, and historically in the US, the general concensus was that no one could violate the laws of God and engage in sodomy, what basis did the people of Texas use to enact a law which elevated 97% f the population above the laws of God, but sought to force 3% of the population into observing the same laws they voted themselves above?

On what grounds did the people of Texas award the majority the "privilege" of engaging in deviant sexual intercourse without fear of repraisals?

[Torie]

The issue was that the underlying law mandates differential sentences, so it is the statute that is being challenged because it prescribes differential sentencing.

[bvw]

The rule of the land is as of two days ago "emerging consensus" as determined by any Judge.

Cheaper than paying for elections, eh?