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

**********************************************

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

[lentulusgracchus]

Show me where in the Constitution the Congress is given power to legislate an exception to the Full Faith and Credit Clause.

Do I take it correctly that you are in favor of:

a. Homosexuals pretending to marry, and

b. Promulgating this deracination of marriage by court decree in some ego-dystonic state, as Evan Wolfson and Lambda have been trying to do for ten years now, and using the Full Faith and Credit Clause to shove the 2% down the throats of the 98%?

Speak up.

[foreverfree]

bump

[CaptIsaacDavis]

Hold on...It's the "substantive due process" rationale that I think he's referring to. The SCOTUS in these two cases has decreed that if a sufficient number of American states were to pass an amendment outlawing abortion, for example, they would hold that such lawful "due process" related to passing and enforcing such an amendment would conflict with the "substantive" outcome required by them under the 14th. The implication of the twisted reasoning of the SCOTUS is that we would first have to repeal or pass a modified version of the 14th (and destroy the argumentative foundation for their tyranny), and then pass amendments outlawing abortion, etc.

"Substantive due process" under the 14th is the bedrock principle of this judicial tyranny. There is really no limit to where they could go -- in theory. In reality it is a function of how educated the American people become on this issue, and thus how willing they are to demand action to put a stop to it sooner rather than later. So far the abortion issue was mobilizing enough, but curiously even Republican party leaders and presidents have shown little stomach for challenging the Supremes head on (like FDR and many other presidents have done to push their agendas) -- and they have many tools at their disposal (impeachment, simple political pressure to compel resignations, eliminating funding for the federal judiciary). The Dems have shown absolutely no willingness to show restraint in "capturing" the SCOTUS and Federal judiciary. In contrast, I've always been intrigued that so many Republican lawmakers and party leaders, even some otherwise strong "conservatives," have been absolute WIMPS when it comes to waging cultural warfare through the courts. This was not always the case, and is definitely a post-1960s phenomenon.

[Luis Gonzalez]

"So what's your answer?"

Thanks, I'm glad that someone finally asked.

The first thing we need to do is to stop enacting stupid laws, this Texas law was incredibly stupid.

If we are going to criminalize sodomy, criminalize it for everyone.

Next, overturn the Federal Defense of Marriage Act (it's a constitutional time bomb) and rely on already set standards.

Let the States decide, and remember that in spite of the Full Faith and Credit Clause, there is ample legal precedent for a State not to recognize every marriage legal in another State.

"There are three commonly recognized categories of marriages contracted in another state that will not be recognized in the forum state. First, marriages that are contracted by domiciliaries of the forum state in another state for the express purpose of evading the law of the forum state are deemed invalid. E.g., Loughran v. Loughran, 292 U.S. 216 (1934) (marriage entered into in Florida, in violation of D.C. prohibition against remarriage within certain amount of time after prior divorce, invalid in D.C.); Barbosa-Johnson v. Johnson, 174 Ariz. 567, 851 P.2d 866 (Ct. App. 1993) (appellate court holding that evidence did not sustain finding that parties had married in Puerto Rico for the purpose of evading the law of Arizona). See generally Uniform Marriage Evasion Act, 9 U.L.A. 480 (1942) (N.B.: The Uniform Marriage Evasion Act is superseded by the Uniform Marriage and Divorce Act, and was officially withdrawn from consideration by the drafters in 1943).

Second, states have refused to recognize marriages that are solemnized in sister states when the parties are of a level of sanguinity that is forbidden in the forum state. E.g., McMorrow v. Schweiker, 561 F. Supp. 584 (D.N.J. 1982) (rule recognizing foreign marriages does not apply to incestuous marriages); Catalano v. Catalano, 148 Conn. 288, 170 A.2d 726 (1961); In re May's Estate, 305 N.Y. 486, 114 N.E.2d 14 (1953).

Third, states have refused to recognize marriages that are solemnized in sister states when the parties are not deemed of sufficient age to marry, as determined in the forum state. E.g., Wilkins v. Zelchowski, 26 N.J. 370, 140 A.2d 65 (1958).

Given this strong tradition of a state's right to refuse to recognize a marriage validly contracted in another state if that marriage would offend the fundamental public policy of the state, there appears to be no reason for enactment of the Defense of Marriage Act. The states already have the ability to refuse to recognize a same-sex marriage should they so choose. A state's public policy regarding same-sex marriages may be adduced from the presence or absence of both statutory prohibitions and decisional authority regarding same-sex marriages. E.g., Uniform Marriage and Divorce Act 201, 9A U.L.A. 170 (1987) (defining marriage as a personal relationship between a man and a woman). Thus, federal legislation granting them a power they already have is unnecessary." --- Source.

I think we are going to have to acquiesce to some degree, and recognize some sort of civil union instrument available for same-sex couples.

Personally, I don't think that there should be laws enacted that we are not willing to enforce, and that's the case with these anti-homosexual sodomy laws.

We make homosexual sodomy a crime, and then ignore the fact that millions of Americans are openly living in homosexual relationships, among them, the police officers who would have to make the arrest if the laws were enforced.

This is going to be difficult passage for a while, our culture seems to be shifting.

It's never easy when you challenge the stability of a thousands of years old, constitutionally protected, Biblical institution.

Look what happened when Lincoln did it.

[Luis Gonzalez]

Is there some sort of connection between my posted quote and your comment?

I don't see it.

I asked to be shown where in the Constitution the Federal Government is given power to legislate an exception to the Full Faith and Credit Clause, can you show me or not?

I'll ignore the histrionics.

[Luis Gonzalez]

"We make homosexual sodomy a crime, and then ignore the fact that millions of Americans are openly living in homosexual relationships, among them, the police officers who would have to make the arrest if the laws were enforced."

Either enforce the laws, or strike them from the books. We are destroying the Constitution fighting to maintain laws that we are not willing to enforce.

[lentulusgracchus]

We are destroying the Constitution fighting to maintain laws that we are not willing to enforce.

Texas was willing to enforce that law -- that's why the case was in court!

There aren't that many occasions when a crime of sodomy will be observed unless the perpetrators are on drugs, or a complaint is lodged. There aren't that many occasions when a police force will receive a complaint that rises to probable cause. You are busting Texas's chops on LE, for observing the Fourth Amendment!

[lentulusgracchus]

There aren't that many occasions when a crime of sodomy will be observed unless the perpetrators are on drugs...

I.e., unless they somehow become very careless, and allow themselves to be seen from a public area.

[Luis Gonzalez]

"Texas was willing to enforce that law -- that's why the case was in court!"

Texas only enforced the law if a police officer actually happened to come upon two people having sex. They ignore the millions who openly admit to living in a homosexual lifestyle, including politicians, clregy, and law enforcement agents.

If homosexual sodomy is indeed a crime, why will we not arrest those who are openly violating the law?

[The Red Zone]

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.

Part of the offense of a rape is the psychic insult upon the raped party. The homosexual aspect makes that insult worse, and Lawrence can't change that. It may not be enough worse to make it worth a 17 year prison sentence, but to say it isn't worse at all, well, buggers reality (pardon the metaphor).

[The Red Zone]

Part of the offense of a rape [or a molestation] is the psychic insult upon the raped [or molested] party.

[ladyinred]

Prepare to be challenged by some of the Libertarians here. They are thrilled with this decision. Some of them seem to think Reagan himself would applaud this decision.
While I agree the government should not be in our bedrooms, I don't like this decision at all. The Supremes should have refused this case in the first place!

[ladyinred]

the sky is falling! the sky is falling! the sky is falling!

Kindly stand under it.

[ladyinred]

I wholeheartedly disagree with you.

[ladyinred]

BTW: While I am unhappy as can be at what the court did, I have to say Roe v Wade is much worse considering millions of babies are murdered each year.

[lentulusgracchus]

They ignore the millions who openly admit to living in a homosexual lifestyle, including politicians, clregy, and law enforcement agents.

Bandwagon argument. If someone were copulating in the street, you bet they'd get busted for sodomy, plus everything else. You ignore probable cause. Two guys sharing a house isn't probable cause. Two guys holding hands at the dinner theater isn't probable cause. Probable cause is the neighbor complaining on the phone to Police Dispatch that her neighbors left their back gate open and she can see them copulating unnaturally in the back yard.

[lentulusgracchus]

The Supremes should have refused this case in the first place!

The majority wanted to hand down a "gay is okay" decision so they could get invited to Caroline Kennedy's next fabulous party.

[Luis Gonzalez]

"If someone were copulating in the street, you bet they'd get busted for sodomy, plus everything else."

Laws about public sex apply equally for everyone, anyone would be busted for copulating in public.

"...copulating unnaturally in the back yard."

That has nothing to do with the issue at hand.

That is also public, not private behavior.

[Luis Gonzalez]

"There aren't that many occasions when a crime of sodomy will be observed."

If the crime were sodomy, the LEO's would have identical reactions whether they walk into Adam and Eve, Adam and Steve, or Liz and Denise.

They do not, so the crime is not sodomy.

[Technogeeb]

I find it interesting that Texas doesn't even have a bestiality law

You are mistaken. Beastiality is illegal in Texas under section 21.07a(4) of the Texas Penal Code.