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

[Sabertooth]

If my kids want to be gay, that is a-ok with me. You can have all the Judeo-Christian culture you want in your own homes and churches. But the government is not your private goon squad for the enforcement of Christian morals. At least not anymore.

No, the government has now become a goon squad with a different agenda.

The federalization of homosexuality by this decision, with the promise of more and unknown federalizations in the future, is a huge federal power grab from the people and the states.

California has a consenting adult law with which I agree in principle, yet I supported the prerogative of the citizens of other states not to have such a law. Their freedom to do so was part of the autonomy of the states and the people, as protected by the 10th Amendment. That Amendment is eroded by this decision, to the detriment of all of us.

[aristeides]

Those yahoos and pinheads do happen to be elected by us common folk. I suspect that's what you don't like about them.

[cherrycapital]

The point is that there should be no goon squads and no enforcement of anyone's private morals.

[tdadams]

Those were actually the words of Clarence Thomas in his concurrence with Scalia's dissent.

Thomas was quoting Justice Black from the Griswold v. Connecticut case.

[gitmo]

How can the Supreme Court can find a Constitutional Amendment unconstitutional? That makes no sense at all.

You're absolutely right. It makes NO sense. Unfortunately, that's what they did in the Law School admissions case. They recognized the Equal Protection clause forbad the discriminatory practices of the admissions board, yet they overruled the Constitution with the state's 'overwhelming' need for diversity.

SCOTUS is out of control.

[tdadams]

Your tirade was based on the issues of law in the Limon case, which you just admitted having given almost no study to.

[Sabertooth]

Does this ruling also make prostitution legal?

Inevitably. Consensual incest will follow. It only takes five impressionable dweebs who've taken some classes espousing novel legal theory to make it so.

[aristeides]

And Justice Black was also in dissent. Way back then, he saw the distinction between a law being bad and its being unconstitutional.

[cherrycapital]

Yes, the yahoos and pinheads were elected by mostly yahoos and pinheads. And yes, that is what I don't like about them. That even the most illiterate wino can have a say, however small, in making laws for other people, is apparently what conservatives think is great about America.

Libertarians believe that what makes America great is that there are some things the government CANNOT DO, majority or no majority. It is just a basic difference in values, I suppose.

[tdadams]

I take it you would be happy to be ruled by philosopher kings who have absolute power. No thanks.

The signal to noise ratio on this thread just went down a bit.

[aristeides]

Do you really think the ultimate effect of these decisions is going to be to limit government?

[AnalogReigns]

While I follow his argument--and basically agree with it--this one statement tells me he has no grasp on constitutional law:

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

Ammendments obviously becominging a part of the Constitution cannot by definition be "unconstitutional," no matter what the Supremes think. This is Jr. High school civics knowlege....however perhaps he means if the Supremes don't approve of the ammendment PROCESS...so I'll give Mr. Hudson the benefit of a doubt.

The idea that this could be worse than Roe v. Wade though is by implication of it being a much wider decision--of course there's no comparison of perverted sex, vs. murder of babeis...however Roe was narrow in scope, only covering abortion, where as this decision, appears wide enough to drive a truck through it.

I predict though, if the truck tries to speed through (ie. legalizing gay marriage in all states, adult incest, polygammy, or etc.) there will be a serious outcry and rebellion like modern liberals have never seen. I think a great majority of Americans just will not stand for this liberal elite nonsense any longer, especially when it hits home. To already have government organizations (including the California courts and now the United Way) persecuting the Boy Scouts, of all organizations---to force them to have perverts as scoutmasters--- is just the tip of the iceburg of the radical agenda--and there will come a time, soon, when good, normal, intelligent people (not too polluted by the elites) will just not comply.

Will it end up in literal war? Since I don't see great regional/geographic lines--still, somehow, I wouldn't be surprised to see such in my lifetime.

An America that "blesses" homosexual behavior, incest, polygammy, pedophilia, prostitution and all manner of perversions, and of course abortion, is not my kind of country. If it ever becomes that way, well, I for one won't take it lying down.

[Polycarp]

The 14 year old victim was a willing participant. In a civilized country it would never have gone to trial, much less earned a 17 year sentence.

If any 18 year old molests one of my sons, as a minor, there will be no trial, no argument over "consentual", no 17 month versus 17 year sentencing, etc. Only a funeral.

Minors do not have anything "consentual" with adults. You are one sick bastard.

[stop_fascism]

The problem is who decides what is "protecting individual freedom". For esample, this very enlightened court has decided that "diversity" somehow promotes individual freedom. What happens when a less enlghtened court decides that segregation promotes individual freedom? You're putting to much power in the hands of too few people, then trusting to the good will of those people. If history teaches anything, it is to never trust in the good will of an oligarchy.

[cherrycapital]

Yes.

[tdadams]

Everyone predicted that was it, it was just a matter of litigation until illegals had every right that citizens have. Didn't happen.

Surely you not accusing some people here of hysterical exaggeration??? What heresy!

[Jhoffa_]

I am glad you're so relaxed about the degrading of our Constitution. After all, it's "understandible" that the Justices let their own personal bias override the will of the people and their duly elected represtatives.

Roe was no big deal either.. Ho, hum..

Hey, Oprah's on..

[Ronaldus Magnus]

The Slippery Slope is a fallacy in which a person asserts that some event must inevitably follow from another without any argument for the inevitability of the event in question.

There is nothing fallacious in discussing the likely outcomes of an action or proposition. The fallacy you refer to is only applicable if no reasoning or evidence is presented to justify the connection. In this case, the author has laid out a fairly solid argument in favor of these likely outcomes using similar legal precedents. If you find fault with them, that is where you should make your case . To simply label this proposition as a "Slippery Slope Fallacy" and attempt to mandate that all likely consequences be ignored is not merely a fallacious reason in and of itself, but an even more pronounced failure of logic.

[cherrycapital]

Then you will spend a good long term in prison, as you will deserve, getting "molested" by a 300 lb. Bubba. That's called karma, lol.

[PMCarey]

I suspect when the issue is gay marriage (or polygamy or drug use or euthanasia) the Court will find an excuse to back-pedal away from their reasoning and let this decision stand as a one-time freak.

You may be right because now that the SCOTUS is a omnipoint legislative branch it has no need to adhere to the law, to tradition or to past decisions. It can go willy-nilly where it will upon the winds of public opinion and the opinions of the intelligenzia.