Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter ^ | 6/27/03 | Deal Hudson

[aristeides]

When the Supreme Court vacates a court judgment and refers to one of its own decisions as explanation, it is referring to the opinion of the Court, not to a concurrence in the judgment like O'Connor's in Lawrence. The majority in Lawrence expressly declined to decide the case on equal protection grounds.

[Jim Noble]

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

Yes.

[cherrycapital]

The opposite error is to believe that if anything is immoral, it should be illegal. Personally, I think nothing is less "conservative" than a government of omnipotent moral busibodies using the legal system to destroy families on morals charges and wasting billions of dollars to boot.

[dogbyte12]

I just wish there was some intellectual honesty here. If people believe that an 18 year old who has sex with a 14 year old boy should be punished more harshly than a 18 year old who has sex with a 14 year old girl, they should just be upfront and say it.

In Kansas up until this week, you got 204 months in jail for the former, 15 months for the latter. 13.6 times the amount of jail time. I see this an inequitable. I can see others justify it by stating that homosexuality is a more grave evil and the sentencing disparity is just. However, it still doesn't address the equal protection problem.

[aristeides]

So you agree that yesterday, the day after the Supreme Court disclaimed any such intention, Lawrence altered the legal outcome of a case involving sex with minors?

[LibKill]

Which is worse?

Roe has certainly killed more people, but the Lawrence ruling is only a couple of days old.

[Brices Crossroads]

"If the Supreme Court finds the Amendment unconstitutional"

Several of the posters have already made the "astute" observation that the Supreme Court cannot find an Amendment unconstitutional. While this is true as a matter of law (de jure), it is untrue as a matter of fact(de facto). The Supreme Court has rendered several amendments, notably the Tenth, virtually meaningless. While they would have trouble invalidating a a narrowly drawn amendment, it is far from impossible for an activist court to render it meaningless.

That said, while I am very sympathetic to the thrust of the proposed Amendment, I do not believe that marriage is, or should be, a federal issue. Most such Amendments conclude with: "Congress shall have the power to enforce this Amendment by appropriate legislation." Turning Congress loose on the institution of marriage gives me a decidedly queasy feeling.

[Sabertooth]

The Supreme Court can not overturn a Constitutional Amendment.

That's supposed to be true, but of course, they presume the power to do it all the time, bit by bit, ruling by ruling.

[aristeides]

I just wish there was some intellectual honesty here. If people believe that an 18 year old who has sex with a 14 year old boy should be punished more harshly than a 18 year old who has sex with a 14 year old girl, they should just be upfront and say it.

I haven't thought about the issue enough to have a considered opinion. If I did, I might well decide that I don't want there to be such a law. But the issue here is whether the Supreme Court has the right to strike down such a law as unconstitutional. If all bad laws are going to be declared unconstitutional, we're in a heap of trouble.

[cherrycapital]

Well, it beats me why they referred to Lawrence when a straightforward reading of the Equal Protection Clause would've reached the same result. But the point is the same. Limon was legally and morally correct and did not require Lawrence to back it up, even if that's what they did in fact use.

[savedbygrace]

If the Supreme Court finds the amendment unconstitutional -- which, thanks to Lawrence, they now claim the right to do -- then we're sunk.

This is the part I don't get. If an amendment to the Constitution is passed by one of the two Constitutionally sanctioned methods, then it is a part of the Constitution. Therefore, it cannot be unConstitutional.

[cherrycapital]

We are in trouble when bad laws are struck down?

[PMCarey]

So you agree that yesterday, the day after the Supreme Court disclaimed any such intention, Lawrence altered the legal outcome of a case involving sex with minors?

I don't know. The answer depends on two questions: 1) Did the opinion cite Lawrence for its basis, and 2) Would that particular court have made the same decision in any case?

[bart99]

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

---

I've been trying to understand this..... using prostitution as an example. But...... no one seems to have an opinion.

Seems that your statement is true. Period.

[Sabertooth]

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.)

Is it your opinion that there is an unenumerated right to consensual sodomy, by way of an extension of the unenumerated right of privacy?

[aristeides]

Kennedy's Lawrence opinion attempts to distinguish away prostitution, as it attempts to distinguish away sex with minors. Both distinctions noticeably lack much argumentation or support. And we learned yesterday in Limon how much the distinction concerning sex with minors was worth.

[cherrycapital]

I certainly hope so.

[cherrycapital]

Yes.

[aristeides]

To judge by Limon, that unenumerated right appears to include (consensual?) sex with 14-year-olds, at least if it's homosexual sex. Otherwise the Supreme Court would have routinely upheld the sentencing disparity under conventional rational-basis review.

[BlazingArizona]

I'll bet you're a barely-post-adolescent ersatz South Park conservative--no children, no real responsibility other than stuffing yourself with the thrill of the day.

The odor of smoldering underwear from those who worry that someone, somewhere, might be having fun is getting pretty thick in here.

The busybodies lost. Get over it. Now let's focus on the benefits for conservatives that can emanate from a Constitutional right to privacy. Think of the regulations we can overturn, the government agencies that mght now be made irrelevant.