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

[aristeides]

And I've never seen an opinion vacated on the basis of a concurrence with the judgment. A concurrence with the judgment lacks the force of law, and I don't believe it's a satisfactory basis for vacating a judgment.

[tdadams]

They could have remanded it as an advisory opinion.

[aristeides]

The Supreme Court may choose to use different words to describe what it has done, but homosexuals are now de facto a protected (suspect) class, and sodomy is now the functional equivalent of a fundamental right.

[aristeides]

They could have remanded it as an advisory opinion.

I do not recall ever having seen that done. Have you?

[Diddle E. Squat]

How is it an infringement of the right to travel to not recognize civil unions? People cohabitate outside of marriage all the time these days, most motels wouldn't bat an eye. Nor would most home sellers, telephone directories, etc. Now getting equivalent insurance coverage and certain other issues(property, inheritance) might be more difficult to navigate in a state that doesn't recognize CU's, but are they really so grave that a bit of legislative corrections and nuances couldn't smooth over without formally recognizing. I fail to see the grave harm to gay couples from their operating in the equivalent of common law status. And hey, there are benefits and disadvantages for every state, people are free to choose what best suites their preferences.

One basic question: when the talk is for pushing to recognize gay marriage, are civil unions considered the equivalent of gay marriage, or is that legally a quite distinct term? Seems to me by creating a separate category(CU's) which recognizes the obvious differences between heterosexual and homosexual unions, some of the most intractible problems of blunt redefining of marriage might be avoided, with society/legislatures(for the moment) still allowed to shape policy per their will.

[Luis Gonzalez]

During the Clinton presidency, with a Senate controlled by Democrats, signed a "Defense of Marriage Act".

How conservative of Bill and the Rats.

In a few years, when you are faced with the need to stand against both State's Rights, and the Constitution in order to defend that law, remember Bill Clinton...he'll be somewhere laughing his ass off at us.

When the Constitutional crisis subsides, and homosexuals are a protected class of citizen, remember me...I told you so.

[Luis Gonzalez]

"Luis, the vast majority of Texans dont share your weird predilection for backdoor sex."

I don't do that.

Now wait a minute, if sodomy in your eyes constitutes only anal intercourse, then women who sleep with women are not sodomites?

[dogbyte12]

I might hit myself in the head with a hammer tomorrow. It frightens me. I need a law banning me from doing it.

Since there is no way, no how, that I would find a naked sweaty hairy man the least bit attractive, I guess that is why I am flummoxed by the amount of passion involved here.

Hitting yourself on the head with a hammer is extremely damaging to yourself. You could get injured, bleed, require medical care, or even die. It might cause brain damage, or disgust people who see you with the claws sticking out of your scalp. Obviously we must set out rules against it. Perhaps I won't hit myself with a hammer, but since it is so tempting to others, it needs to be enforced so that it can not be done. Well, ok, it might still be done by those hammering themselves addicts, but still, it serves a societal good. Hitting oneself on the head with a hammer is bad, and it is in our best interest to prevent people from doing so.

[aristeides]

Look at my #483. I believe that under Lawrence homosexuals already are de facto a protected class.

[tdadams]

I can't recall a case at the Supreme Court doing that (not to say there hasn't been one) but I know I've seen a case in the Sixth Circuit like that.

Maybe they left it intentionally vague simply for the lower court to ponder the rammifications and reconsider without giving guidance as to where they should look to correct it. They're certainly within their right to do that.

Many times when they grant cert and hear a case, they will remand it without comment or opinion. They simply tell the lower court "You're wrong, try again with a different result."

[sinkspur]

There are reasons for the distinction and they are valid.

What are the reasons? For the life of me, I cannot see why the rape of a man by a man should be legally considered more heinous than the rape of a woman by a man.

I mean this in all seriousness.

[Luis Gonzalez]

Yes I do.

The price of auto insurance, medical services, and all sorts of stuff goes crazy to cover costs of accidents.

That's a whole different thing.

[Torie]

What do you think the practical differences in law are between CU's and marriage? You see no major problems in a CU couple moving to a non CU state, and having their CU status negated in that state? How does that affect vested property and inheritance rights? I frankly would find such a disparate scheme intolerable. Even if it is constitutional (and it won't be found to be), it should be homogenized per the law.

[sinkspur]

I believe that people will find morality without having the nanny state ordaining it.

Dave Barry, in a column a year or so ago, wrote something to the effect that "I'm highly doubtful that there are large numbers of Americans, once sodomy laws are lifted, just waiting to leave their marriage beds to start having sex with the family dog."

[sinkspur]

Is killing a person committed while driving drunk and sober the same act?

Aristeides, we're talking about sexual acts, and you insist on going off into the weeds to talk about murder.

I'm not going there until you tell me how oral sex performed ON a man is materially different if performed BY a man rather than a woman.

[Desdemona]

At this point in the culture war, people sitting on the fence (because they just want to get along and not offend anyone and be hip) are really hiding behind the "law". That has to stop. People are going to have to be honest about morality, but not confrontational unless abuse or rape occurs in which case put nails in the Louisville Slugger.

Between relatives and my avocation, I am around homosexuals all the time - and yes I avoid them generally socially. The truth is, they expect acceptance, just automatically. They have to understand, THEY are the deviants, not those of us who do not fawn all over them because of what they are. They've convinced themselves that the love of Christianity will prevail in their favor. This is just not the case.

The lifestyle is a public health risk. The diseases they pass around - most of them - have no cures. It doesn't matter if it's legal or illegal. Hepitiis C, AIDS - there are no cures. NONE. The big secret to living a long, healthy life is morality. By living the example, maybe some people will get the message, if they bother to pay attention. That's one thing we must do.

Another thought - Prostitution and the concept of legalizing it bring the same sort of problems. Morality aside, the health question and the possibility of a black market should be frightening enough. IF we think things are bad now, plus, what does that make the government, if it's licensed?

While I'm not sure making sodomy illegal, is necessarily the answer, approval definitely needs to stop. That includes any sort of state sacntioned homosexual "marriage". Mutual gratification is not the purpose of marriage.

Realistically, I'm afraid this is going to be another Roe insomuch as it might take as long as 30 years to turn the tide of public opinion.

Scalia and Santorum are right, but they're not going to be headed. In the meantime, the rest of us can pray and set an example of good moral life.

[Kevin Curry]

But the ones that will are cheering the Lawrence decision.

[Luis Gonzalez]

Then the end game set up with the Defense of Marriage Act is to write an amendment making same-sex marriage a constitutional right.

If any conservative president tries to bring down the DMA, in an attempt at avoiding the constitutional crisis, he would be seen as a liberal, pro-gay, anti-State's rights guy.

I can see a Constitutional crisis when the DMA's attempt at nullifying the 14th Amendment, I can also plainly see the Democrat’s Herculean, unprecedented efforts at blocking Bush’s ability to populate the Federal Benches with social conservatives.

It was supposed to be Gore populating the benches.

[dogbyte12]

That is just it. It is the dogbyte12 test for me. If something makes me go ewwww, there is no reason for me to be prevented from doing it.

Unless one believes that they or ones they know, were just waiting for this supreme court decision to engage in gay sex, then the hysteria is a tad overblown.

I have no interest in gay sex, so I am not that excited about this ruling. It says something about the people who are, not about the constitutional issues, but the evil sodomy is going to be everywhere argument. I don't buy it. You couldn't pay me to have homosexual sex, just not my thing. I don't need laws telling me to do that.

[sinkspur]

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?

Likely in the single digits, if any. But, I don't recall saying anything about female-on-male rape.