Is Lawrence Worse Than Roe?

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.

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.

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.

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.)

Hmmm...Can universities and schools make or enforce rules aimed to prevent consensual sexual relations between teachers and non-minor students if it is done in the 'privacy' of a hotel or home?

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

There are two questions for conservatives with regard to homosexuality. 1) Is a homosexual a human being? 2) Does the practice help society, and this question should probably be interpreted narrowly from the perspective of reproduction.

1) Do conservatives believe homosexuals are not human? If we did, we would determine that someone who intentionally kills a homosexual had not committed murder. I don't think even the most extreme of conservatives would take this position.

2) Homosexuals are not going to reproduce biologically. Period. In the past, this mattered a great deal and society, which needed to grow, would oppose it on those grounds. Times have changed, but not all that much. We still have tax deductions for kids. We, as a society, still encourage growth to that degree. The sadness of parents whose child "comes out" has nuances. Some of it is not selfless. Some of it mourns for their own future joy of grandkids. And some mourns for the unhappiness they feel their own child will endure.

So. We, as conservatives, would do well to keep in mind that there are two ends to this spectrum. Our distaste is thoroughly constrained by item 1 above. Item 2 merely guides where on the shades-of-gray spectrum our position should be.

Of course, you are 98% ignorant of what I'm referring to. Go back to your TV and vegetate. Everything is just fine.

I'm of the belief that these laws are lame. The State has no business in the bedrooms of consenting adults. Most of the jurisdictions do not enforce them for this reason and they have been repealed willy-nilly.

But my dislike for these laws does not blind me to what the Supreme Court has done and what it portends for the future. This is another manufactured out of thin air ruling. Scalia's scathing attack on it is right on the money. People are pretending that there is no such thing as precedent and that lower court judges will apply this ruling to everything under the sun. We rage about the 9th circuit court but can you imagine what that court will use this ruling to justify in the future?

You are right, if the number is 99% then I'm with you as part of the 1%

Private universities certainly can restricts relationships between faculty and adult students, since they're not subject to the 9th or 14th amendments.

As to whether those rules would stand up to a Lawrence scrutiny in a public university, I suspect the answer is "no, but it doesn't matter." Rather than being subject to defense, as must adult consensual sodomy laws, against the lowest possible threshold of state rights, public universities get to appeal to a much higher set of state public policy objectives -- in other words, the state can use the rationale of the Michigan law school affirmative action case, and say that it is necessary to impinge upon the professor's rights to screw whomever he chooses in order to maintain the essential qualities of access and diversity on campus (the theory being that professor-student affairs negatively impact women).

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

I could care less about other's sex lives. But I care very much about the Supreme Court manufacturing half-baked decisions just to reach a social goal. Having unelected people in black robes legislate is not my idea of progress.

The sky actually is falling. Yesterday, in Limon, the Supreme Court vacated the sentence of someone who had homosexually molested a 14-year-old boy, on the basis of Lawrence. So much for Lawrence just being about ending the criminal prosecution of sex between consenting adults.

The Supreme Court can not overturn a Constitutional Amendment

Isn't is a pity that you are required to remind somebody of this fact?

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.

The constitution is living, each time it is amended it changes. If people genuinely want changes, they can petition the congress to pass an amendment. If for example, somebody wants to jail homosexuals, they could pass an amendment to the constitution, get it ratified by the states, and it would be the law of the land.

Why is this concept so difficult for people to grasp?

Even this warning is too limited. The theory the Justices applied doesn't stop at sex, doesn't even stop at privacy. AS of the time Thursday this rulling came out, we are officially an anarchy. Every single Judge can make whatever ruling pleases him, no according to rule, precedent, morality, common standards, etc.

The process used in arriving at this ruling is worse than the result.

Mr Justice Kennedy, for the Court:

"These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex".

So now, the Court claims the right to rule by discerning "emerging awareness" on the part of the population.

No need for voting, no need to listen to those selected through voting, no means to question the justice's perception of "emerging awareness" - if the laws passed by the People do NOT reflect "emerging awareness" what else can possibly do so?

The power to issue rulings based on a justice's discernment of "emerging awareness" is exactly the power claimed by the French revolutionaries to rule in the name of the General Will.

It is pure despotism, and it doesn't matter if they use the power to outlaw sodomy or to require it.

The consequences to a Free Republic are the same.

The sky actually is falling. Yesterday, in Limon, the Supreme Court vacated the sentence of someone who had homosexually molested a 14-year-old boy, on the basis of Lawrence. So much for Lawrence just being about ending the criminal prosecution of sex between consenting adults.

How about the rest of the story though Aristiedes. The molestor was a mentally delayed man of the age of 18 years old and 1 week. If the victim was a 14 year old girl, he would have received 15 months in prison, but Kansas differentiated between molesting a girl, or molesting a boy, and sentenced him to 17 years instead of the 15 months. The Supreme Court in no way said it was illegal, or unconstitutional to write laws sentencing everybody to 17 years in jail for statutory rape, but that the sentences must be equal.

Again, if Kansas wants to give everybody a 17 year sentence for this offense, they are free to do so.

I have no problem with having unelected people in black robes legislate as long as they are protecting individual freedom from the state. Democracy is a means, not an end. When democracy is inconsistent with individual freedom, it is democracy that must yield. The whole point of having a Bill of Rights was to make certain things vote-proof. As Justice Robert Jackson said:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943))

When you study the founding fathers--everyone up to about Andrew Jackson--it is striking how little they had to say about democracy. Some of them even used it as an epithet. They knew that unlimited majority rule is as bad as any other sort of tyranny--worse, in fact, because it is harder to fight.

And such an amendment would do more than end the prospect of homosexual marriage. It would represent the repudiation of the so-called thinking in the Lawrence decision and might persuade the Supreme Court to cabin the implications of Lawrence to what that decision was ostensibly about, striking down sodomy laws. Limon yesterday showed that the Supreme Court presently has no such intention. Quite the contrary.

You can have all the Judeo-Christian culture you want in your own homes and churches. But the government is not your private goon squad for the enforcement of Christian morals..

I wonder if we 'cleaned house' of ALL government laws, statutes, including the U.S. Constitution of anything based on Judeo-Christian morals and values, what rights would we the people have left?

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