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Posted on 07/07/2003 11:46:14 AM PDT by Lurking Libertarian
July 7, 2003, 9:10 a.m. Lawrence Behind Bars Conservatives vs. privacy.
Last month's Supreme Court Lawrence ruling blew some gaskets among social conservatives. Even more than in the University of Michigan racial preference case, the reaction to the Lawrence et al v. Texas ruling (which vacated the Lone Star state's sodomy law) has been especially heated.
The Supreme Court "magically discovered a right to privacy that includes sexual perversion," Jan LaRue of Concerned Women for America complained to USA Today.
"This is a lamentable outcome," Rev. Rob Schenk, president of the National Clergy Council, told the New York Daily News. "The Court has said today that morality, matters of right and wrong, do not matter in the law."
The editors of Crisis magazine called Lawrence "the most damaging decision handed down since Roe v. Wade."
These particular activists, at least in these remarks, make no mention of the fact that, under the Texas statute, John Geddes Lawrence and Tyron Garner were thrown in jail for private, consensual sex inside the bedroom of Lawrence's private apartment.
Most of the social-conservative commentary attacking the Lawrence decision scarcely acknowledges this ugly fact or, even worse, blithely skips right past it.
Perhaps socio-cons are uncomfortable facing the consequences of their beliefs.
Sodomy laws differ from the acts of religious people or traditionalists who grind their teeth as gay-pride parades march by. If these Americans wish to erode their molars in silence, quietly pray for the souls of gay people or loudly wave picket signs denouncing homosexuality, they are perfectly free to do so. And if it makes them feel better, go for it.
However, the now-powerless anti-sodomy laws that socio-cons support allowed adult taxpayers to be arrested, jailed, tried, and punished.
After spending a night in custody, Lawrence and Garner were released. After appearing before a judge, they each were forced to pay a $200 fine and $141.25 in court costs. At least until the Supreme Court's June 26 ruling, they also were required to register as sex offenders in four states. In addition, their humiliation — having been dragged outside in their underwear and tossed into a Harris County Sheriff's squad car — surely was incalculable.
If they were in public, if children were involved, or if Lawrence had a revolver at Garner's neck, even worse punishments would have been appropriate. Of course, no such circumstances pertained in this case.
Critics of the Lawrence decision say the people of Texas should have been allowed to vote to overturn this law, or at least do so through their legislature. But what if the majority of Texans still disapproved of what happens in Lawrence's bedroom and others like it? Do social conservatives sincerely applaud a law that would permit the police to come in, say, once a week and re-arrest Lawrence and Garner each time the cops caught them engaged in sodomy while, by the way, leaving unmolested the heterosexual residents of the very same building who happen to enjoy non-procreative, genital-anal sex?
The whole concept of minority rights demands that majorities not use political power to quash the liberties of minorities, so long as members of such minorities do not harm the lives, liberties, or property of others. It is impossible to see precisely who Lawrence and Garner threatened while they were indoors, in Lawrence's apartment. Can any defender of the Texas anti-sodomy statute identify anyone Lawrence and Garner jeopardized?
If social conservatives really believe American adults should be placed in jail for private, voluntary sexual behavior, they at least should be honest enough to admit openly that they desire a system in which grown-up homosexual taxpayers can be arrested and thrown behind bars for such activity.
— Mr. Murdock is a columnist with the Scripps Howard News Service.
No arrest was made because of spying.
These particular activists, at least in these remarks, make no mention of the fact that, under the Texas statute, John Geddes Lawrence and Tyron Garner were thrown in jail for private, consensual sex inside the bedroom of Lawrence's private apartment.I think Thomas' dissent summed it up nicely.Most of the social-conservative commentary attacking the Lawrence decision scarcely acknowledges this ugly fact or, even worse, blithely skips right past it.
I write separately to note that the law before the Court today "is ... uncommonly silly." ... If I were a member of the Texas Legislature, I would vote to repeal it.Thomas understood that the job of a Supreme Court justice is not to weigh the merits of a law, but rather if the law is Constitutional or not. It is not a matter of not 'acknowledging' an 'ugly fact'. It is that under the separation of powers, the wisdom of a law is for the Legislature to decide. If the penalty is too harsh, or if there should be a penalty at all, is the Legislature's job.
Judicial activism, even when done from a libertarian perspective, undermines the Constitution by making it depend on the whims of a handful of people.
This is a joke, right?
No; what makes you think it is?
Bingo!
The Supreme Court's "privacy" rulings have never turned on whether or not something is done "in private" (i.e., secretly) so much as they have carved out certain spheres that are "private" in the sense of not being subject to public control-- things that each person can decide for himself without having to answer to anyone else. Whether or not abortion belongs in this category is another question, however.
In the first place if they had any sense of humility they would have stopped in the presence of strangers (wouldn't you?).
And secondly, IMO, they wanted to be arrested for the singular purpose of opposing this law. That can be a justified action as a form of civil protest, however if that were the case then humiliation would have been the furthest thing from their minds. I rather believe they would have been quite proud, certainly their actions demonstrate this.
Source? That wasn't in the article, or in the Lawrence opinion. If that's true, your point is well-taken.
Do thry?
There isn't?
Amendment IX
"The enumeration in the Constitution of certain rights, shall not be construed to DENY OR DISPARAGE others (rights) retained by the people."
I would say the right to privacy is a "...others (right) retained by the people."
See Griswold v Connecticut, Justice Greenberg's concurring opinion.
I would agree that the "right to privacy" does not emanate from the 14th amendment as the Supreme court has ruled since Griswold v Connecticut.
I will let Justice Goldberg reply to your remark:
"While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94 -95.
I strongly suggest you read Justice Goldberg's concurring opinion in Griswold v Connecticut to understand the logic and reason for the inclusion of the 9th amendment to the Bill of Rights.
What is "illegal action?"
Not wearing a seat belt? Smoking a cigarette? Home schooling your children? Having as many children as you want? Not wearing a helmet when you ride a motorcycle? Using the word "nigger" or "honky" in your home when talking to a friend? Eating the food of your choice and as much as you like? Taking the drug of your choice for cancer treatment whether FDA approved or not?
These are all personal and consensual decisions made by free individuals enjoying the spoils of liberty. All of the examples above that are prohibited by government are a violation the 9th amendment, the unenmerated right to privacy, retained by the people.
Illegal action is a violation or as the Ten Commandments state, a coveting of another person's life, health, or property without their consent.
That action is no longer the right of privacy and never would be advocated as such and never was a right of privacy.
The right of privacy is to be "left alone" as Justice Greenberg stated.
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