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Is Lawrence Worse Than Roe?
CRISIS Magazine - e-Letter ^ | 6/27/03 | Deal Hudson

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


TOPICS: Activism/Chapters; Crime/Corruption; Culture/Society; Extended News; Front Page News; Government
KEYWORDS: abortion; abortionlaws; activistcourt; activistsupremecourt; ageofconsentlaws; catholiclist; consentingadults; consentingminors; consentingteens; culturewar; druglaws; gay; homosexual; homosexualagenda; incestlaws; lawrence; lawrencevtexas; limonvkansas; notconsentingadults; privacy; prostitutionlaws; roe; roevwade; samesexdisorder; samesexmarriage; scotus; sexlaws; slipperyslope; sodomy; sodomylaws; statesrights; statutoryrapelaws; supremecourt
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To: independentmind
The point is that sin is the opportunity to do wrong, or right, and choosing the wrong option.

The Taliban believed they could get rid of sin, by being brutal to anybody who didn't obey the law. This did not lead to a moral society, just a terrified one. Not of God's wrath, but the guy next door about to reporth him to the authorities.

It is actually one of the fundamental reasons why I believe that pedophiles should not be released from jail for good behaviour.

If your sin is being sexually attracted to 4 year old girls and acting upon it, you are not "exhibiting good behaviour" in prison by not molesting the non existant 4 year olds that you have access to in jail. I believe that spiritually we are in the same boat. Set up a theocracy and we are the equivalent of that man. We can't sin, we desperately want to do so, but aren't given free access. There is no morality there, no spirituality, just terror and lack of options.

Banning consentual behaviour in adults does not make us better, doesn't save our soul, it makes us afraid of Rome, not of God.

If you are alone on a desert island, and you don't commit fornication, all the power to you, it doesn't test you one bit though.

If you walk through a street with strip bars on your way home, and ignore the temptation, it redeems your faith and strengthens it.

461 posted on 06/28/2003 2:28:28 PM PDT by dogbyte12
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To: sinkspur
How is oral sex materially different if performed by a man or a woman, on a man?

Other than the amount of foreplay needed?

462 posted on 06/28/2003 2:30:06 PM PDT by tdadams
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To: Torie
"Sometimes allowing folks the freedom to be immoral,as seen in our own eyes, is essential to human liberty."

People who are discreet and quiet about their vices have usually found plenty of room in the US. We have (upo until last Thursday) copious due process protections, jury trial, presumption of innocence and are protected from arbitrary search and arrest. In don't disgree with that sentiment you expressed for the Law should never be so harsh that it kills more than it revives or protects. That means some *fringe* preserves of outlawdry, obtained by not being so nosy into other people's lives and not only avoiding gossip, but rebuking purveyors of it.

463 posted on 06/28/2003 2:30:35 PM PDT by bvw
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To: independentmind
Why is it worse to murder a minor than an adult?

I didn't say it was worse. That's a subjective judgment. I'm sure the family of the adult murder victim would say that their loved one's murder was worse than some unknown child's murder would be.

I'm for harsher penalties for child murder because of the nature of children: trusting, believing in adults.

464 posted on 06/28/2003 2:31:11 PM PDT by sinkspur
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To: Luis Gonzalez
"On what grounds did the people and the legislature of the State of Texas stand on when they abridged the privileges of a minority of its citizens?"

Are you talking about the motorcycle helmet law?

You think the consitution permits that law?
465 posted on 06/28/2003 2:34:05 PM PDT by WOSG (We liberated Iraq. Now Let's Free Cuba, North Korea, Iran, China, Tibet, Syria, ...)
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To: aristeides; sinkspur
Obviously you're trying to reason with someone who's going to great lengths to be daft. As P.J. O'Rourke has said, "boring people to tears is a form of aggression."
466 posted on 06/28/2003 2:34:37 PM PDT by tdadams
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To: WOSG
To put it another way, they understood and believed in the concept of public morality as emanating from private behavior. And that such public morality could and should be regulated in cases.

That concept has been lost by the libertine-ians.

To which my libertine-ian response goes like this: If governments stopped subsidizing immoral behavior, then immorality would be automatically self-limiting. If drug addiction were punishable by death in some lonely gutter, we would get a lot less of it. Whether homosexuality is "evil" or not will be determined by gays' own will to live, given the public health consequences of their activities. In other words, the threat of HIV causes rational people to modify their behavior; those who don't, die off. It's as simple as that.

467 posted on 06/28/2003 2:34:52 PM PDT by BlazingArizona
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To: tdadams
I suspect the basis is that homosexual child molestation is swept in with the rest of homosexuality into the penumbras of protection under Lawrence. Maybe it can still be punished as a criminal act, but it can no longer be punished more than its heterosexual equivalent. (While there is still nothing to stop a state from punishing, if it chooses, heterosexual molestation more than homosexual molestation.)
468 posted on 06/28/2003 2:35:10 PM PDT by aristeides
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To: sinkspur
You're on to something, sinkspur. Different penalties for homosexual and heterosexual rape have much to do with the natures of men and women.

By the way, I wasn't aware that female rape of men was a widespread problem--how many convictions a year are made for that crime?

469 posted on 06/28/2003 2:36:18 PM PDT by independentmind
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To: sinkspur
Who here is planning on having homosexual sex now that the Supreme Court ruled this way? Who here is planning on drinking themselves to a stupor tonight because it is legal to do so at home? It is also legal to eat 2 gallons of Ben & Jerry's at home tonight.

I think some people's problem is that they really have no faith whatsoever in their fellow humans. Perhaps we should pass a constitutional amendment that bans smoking, booze, and sodomy and gives the death penalty for a first offense.

We would be healthier, we would be purer, and it would be a great country to live in. Reagan's optimism must have rubbed off on me in a bad way. I believe that people will find morality without having the nanny state ordaining it.

470 posted on 06/28/2003 2:36:45 PM PDT by dogbyte12
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To: aristeides
Maybe it can still be punished as a criminal act, but it can no longer be punished more than its heterosexual equivalent.

In which case it was remanded due to the equal protection opinion.

471 posted on 06/28/2003 2:37:46 PM PDT by tdadams
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To: tdadams
No, that is ruled out by the fact that the opinion of the Court in Lawrence expressly declined to rule on equal protection. If you think my explanation necessarily entails equal protection, then my explanation is wrong, and someone else will have to provide a better one.
472 posted on 06/28/2003 2:40:00 PM PDT by aristeides
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To: Luis Gonzalez
"No, I do not engage in homosexual sex, but I do enjoy, along with 97% of the people of Texas, the "privilege" of engaging in limited acts of sodomy with my wife.Do you? "

Luis, the vast majority of Texans dont share your weird predilection for backdoor sex. the idea is barely comprehensible and somewhat grotesque.

But it makes your strange obsession with heterosexual sodomy more understandable.


473 posted on 06/28/2003 2:40:18 PM PDT by WOSG (We liberated Iraq. Now Let's Free Cuba, North Korea, Iran, China, Tibet, Syria, ...)
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To: Polycarp
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.

I thought the Defense of Marriage Act exempted states from having to apply the "full faith and credit" clause to homosexual marriage. It was supposed to be a preemptive strike against this sort of thing.

Is Hudson right? Can Lawrence vitiate the Defense of Marriage Act?

474 posted on 06/28/2003 2:42:58 PM PDT by shhrubbery!
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To: dogbyte12
Banning consentual behaviour in adults does not make us better, doesn't save our soul, it makes us afraid of Rome, not of God.

Whether any consensual sexual activity between adults has harmful effects on society as a whole is very much open to question. That's what we have legislatures for.

475 posted on 06/28/2003 2:44:19 PM PDT by independentmind
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To: sinkspur
"The sentencing for sex with a minor should be the same."

If it is the same act I might agree. But if the sex acts are distinct, it is fair to treat them as distinct crimes.

I think you are proving David Frum correct. attempts to distinguish homosexual beahvior and hetero will be abolished in the law. There are reasons for the distinction and they are valid.

476 posted on 06/28/2003 2:45:27 PM PDT by WOSG (We liberated Iraq. Now Let's Free Cuba, North Korea, Iran, China, Tibet, Syria, ...)
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To: Polycarp
Dear Polycarp,
I missed this one - please ping me when you post things.
Thanks and Regards,
p.
477 posted on 06/28/2003 2:45:37 PM PDT by First Amendment
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To: aristeides
I agree, it wasn't the reasoning of the majority opinion, but it was a concurring opinion with the majority.
478 posted on 06/28/2003 2:47:20 PM PDT by tdadams
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To: cherrycapital
My point is that there should be no goon squads and no enforcement of anyone's private morals.

And my point is that there are always goon squads enforcing somebody's morals, no matter what -- because, in the end, that is precisely what government is. Man is by nature a political animal; the Marxist/libertarian fantasy of the "withering away of the state" is just that -- a fantasy -- because such theories ignore human nature and history and replace them with ideological models of how people ought to behave. History and human nature tell us that men cannot live in society without government, and since in essence all government comes down to goon squads enforcing morals, the only real question is: who will control the goon squads, and which "morality" will they enforce?

I choose Judeo-Christian morality -- the one that insists that human life is special, sacred, and created by a personal God Who has established an absolute moral Law by which we are to live. Unfortunately, what we're going to get is the pagan ethos -- where humans are just big-brained apes living in a natural world, where individual freedom and sensual pleasure are the highest goods, and "do as thou wilt" shall be the whole of the Law.

We are substituting the Nitzschean will to power for the Will of God -- and we will pay dearly for the mistake!

479 posted on 06/28/2003 2:48:09 PM PDT by B-Chan (Catholic. Monarchist. Texan. Any questions?)
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To: TonyRo76

480 posted on 06/28/2003 2:48:20 PM PDT by toothless (I AM A MAN)
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