Posted on 06/28/2003 7:08:52 AM PDT by 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
I think because of contract law, tied in with Lawrence, the end result of this is pretty inevitable not withstanding a constitutional amendment.
Duh, sometimes YES! Two wrongs dont make a right. Or rather, the court must follow the law. correcting an error of the democratic process by violating 'rule of law' would undermine the whole foundations of our political system. If the Legislature erred, fix it there, not in the courts. The Justices were offended by the law, so they plucked principles out of thin air - not the constitution - to reach their decision. Very dangerous! Read the Thomas dissent:
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA’s dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a mem-ber of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valu-able law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases ‘agreeably to the Constitution and laws of the United States.’" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.
Etymology: Middle English, from Old French sodomie, from Late Latin Sodoma Sodom; from the homosexual proclivities of the men of the city in Gen 19:1-11So it seems that oral sex may, or may not be included in the definition of sodomy. By the way, even the repressive Catholic Church doesn't opine on oral sex per se, unless it involves a sterile sexual act.
Date: 13th century
1 : copulation with a member of the same sex or with an animal
2 : noncoital and especially anal or oral copulation with a member of the opposite sex
The sentencing for sex with a minor should be the same.
Should shoplifting penalties be different for men than for women?
Why? Because the same phrase can be used to describe all different varieties? Can't different phrases also be used? Should the penalty for all crimes be the same because they can all be labeled "crime"?
How about stiffer penalties for people who shoot cops?
No. Because it is the same act. How is the act of oral sex materially different if performed by a man or a woman?
Oh, it's much worse.
Roe merely allowed people to murder babies.
But Lawrence took away the state's "right" to peer into our bedrooms.
The horrors!!!!
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's your unfounded supposition about some very independent men. Did any of them 'bugger' slaves on the privacy of their plantations? If King George would have charged so, I doubt they would have meekly admitted their sins. OR even agreed that the colonial government had jurisdiction over their private lives.
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.
People & states [or feds] do not have the power to 'outlaw' non-criminal private acts.. No "However" about it.
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.
The 'nonsense' is wordplay.. Strike out imagined and the line still means the same. - That rights are unalienable is not at issue.
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.
You have 'buggary' on the brain. It's a nasty sexual practice, protected by our rights to live a private life. Hyping the issue is sophistry.
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.
Nope, Texas has never had the granted power to criminalize such a private act.
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?
Word play again on 'nasty'. The 14th declares such irrational prohibitive 'laws' unconstitutional on the basis of privileges/immunities, due process, & equal treatment.
Are you really in such a hurry to eviscerate what's left of the 10th Amendment?
Its not 'eviscrated'. That's more hype..
States can tell the feds to shove their pork barrel money at any time, and regain political freedom. That's reality.
We can't be clear on why the judges in the Limon case saw fit to overturn it "in light of Lawrence v. Texas" because they did not elaborate. They gave no rationale other than the quote above.
My guess is they based it on the equal protection opinion from Justice O'Connor. The sentence in the Limon case was starkly, and suddenly, dischordant with O'Connor's opinion.
Thank you for being receptive.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.