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

[Polycarp]

Libertarian totalitarianism in all it's splendor

What a splendid summary of the contrarian views on this entire thread! There's no kinda anarchy like libertarian anarchy. And there's no kinda totalitarianism like libertarian totalitarianism.

[Sabertooth]

The fact that we now have the internet and such phenomenon are more easily accesible and visible does not indicate an increased prevalence. But arguing so just might convince the gullible.

You're a hoot.

The purpose and effect of making barnyard sex, and any other pornography more accesible and visible is to make it more acceptable, and thereby increase participation in those sorts of things.

That internet porn is a growth industry is a demonstration of that.

There aren't 39,000 barnyard sex sites because no one's interested. Do you doubt that people interested in bestiality would want to be free of fear from legal restrictions?

Why isn't there an unenumerated right to bestiality, as an extension of the unenumerated right to privacy, provided a man doesn't offer his favorite ewe a cigarette afterwards?

[tpaine]

You argue against a right to privacy..


Our general rights to life, liberty, and property encompass ~all~ of our unenumerated and enumerated rights that can be imagined..

IE.. It is doubtful that any rational person would argue against our right to live a 'private' life, secure in our homes and persons.

- Thus, does it not reasonably follow: - That we have an unenumerated, fundamental right to privacy, found under both the 9th & 14th amendments?


In the same way, we can find our right to keep arms in both the 2nd, and in the 14ths restriction that we can not be deprived of property without due process of law.

Prohibitory state laws against behaviors or property can not be termed to be 'due process'. - They are simply the arbitrary rules of a majority.

[Sabertooth]

You Mr Libertarian wouldn't know freedom if it bit you on your ass.

Yet, imagine his confusion at the pleasure he experienced thereby.

[Courier]

How can any conservative argue against a right to privacy.

How does anyone go from the right of people to have consensual sex to legal gay marriage is beyond me.

Marriage is not private. It has public ramification. From the license to tax laws.

So sure a couple of gays can consider themselves married, call themselves married if they wish, but their right to the privacy of their sex lives doesn't extend to the State recognizing their relationship as marriage.

This right to privacy was first enunciated in Griswald, where the State of Connecticut had laws against married people using contraceptives. Would you have voted any other way? Do you not believe you have an absolute privacy right to contraceptives if you so wish? By the way, the author here is wrong. The privacy right was found to be an "unenumerated right" not necessarily derived from the 14th.

I'm probably out there on this board, but I believe for an American the right to privacy is one that should be cherished and extended.

Where this law should lead is to abolishing consensual prostitution laws. Even some drug laws should be abolished. Even if it makes some uneasy there is no right for the State to intrude into such activities as long as they are in actuality and practice both private and consensual.

But, what I really want abolished, what I believe is an intrusion into my privacy is seat belt laws. I believe I have a privacy right not to wear the damn seat belts if I don't want to. My not wearing seat belts harms no one, except potentially myself, and the State has no right to intrude.

[tdadams]

You certainly are presumptuous, along with short tempered today. You think you're the only one who knows about Griswold? My, my you think a lot of yourself don't you?

If you think I know nothing about it, feel free to go to my profile page and click on "find in forum". Please do tell the public what you find.

[Jhoffa_]

BTW.

In addition to being extremely poor oral hygene, that's now a Constitutionally protected bite..

(Quick! Someone, que up the "Star Spangled Banner")

[aristeides]

They seem to equate sexual freedom with freedom in general. But then, sexual license is their real religion.

[Sabertooth]

Thus, does it not reasonably follow: - That we have an unenumerated, fundamental right to privacy, found under both the 9th & 14th amendments?

I can imagine that an Amendment guaranteeing a right to privacy would have been ratified by the Founders, but not if it was understood by them to give legal protection to buggery.

[toothless]

good comeback!

[jwalsh07]

How does anyone go from the right of people to have consensual sex to legal gay marriage is beyond me.

How does anyone go from the right to firts trimester abortions to killing them on the way out and in Peter Singer's case, perhaps a few years after that.

[tdadams]

You don't know what you're talking about.. Some were overturned, but the majority of State Sodomy laws were Repealed.

You've changed the focus again. You're looking at the status of all fifty states, before and after Bowers.

[aristeides]

So, because the Supreme Court ended some things you don't like, you want them to have absolute, unlimited power?

[toothless]

"In this case, the author has laid out a fairly solid argument in favor of these likely outcomes using similar legal precedents."

You mean like this gem of an argument: "If the Supreme Court finds the amendment unconstitutional -- which, thanks to Lawrence, they now claim the right to do"

lol.

[jwalsh07]

When the Supreme Court ruled in the Presidents favor in the 2000 election I read on FR how it is Gods will, God directs the Supreme Court, God is cleaning the trash out of washington throught the Supreme Court and on and on. Now that same Supreme Court has handed down a ruling you don't agree with, then they should be Impeached (its okay to keep the ones you agree with), their all fools(well the 6 that voted for the ruling) the Freepers know whats best for the country, and the Supreme Court all of a sudden is an evil bunch led by satan, that should be thrown out, at best, if not branded traitors and locked up.

More's the pity that you do understand the difference in the two rulings.

The first upheld the Constitution, the second, de facto, sent the tenth amendment into the crapper.

[tdadams]

The purpose and effect of making barnyard sex, and any other pornography more accesible and visible is to make it more acceptable, and thereby increase participation in those sorts of things.

How do you know that's the purpose unless you're involved in the production and distribution of those materials? You're making a presumptive allegation.

[jwalsh07]

You mean like this gem of an argument: "If the Supreme Court finds the amendment unconstitutional -- which, thanks to Lawrence, they now claim the right to do"

Not de jure but de facto. No reason for states any more. In fact there's no reason for legislatures.

We can simply have a SCOTUS and a tribunal of libertarians, libertines and leftists dictating to ous how we choose to live.

It makes things so much less complicated.

[jwalsh07]

It has taken every last fiber of my being to not elaborate on this comment..

Don't hold back Jimmy, it tends to raise your blood pressure and make your head explode.

[Jhoffa_]

One thing has been made very clear by tracking the reaction to this ruling on Freerepublic. When the Supreme Court ruled in the Presidents favor in the 2000 election I read on FR how it is Gods will, God directs the Supreme Court, God is cleaning the trash out of washington throught the Supreme Court and on and on. Now that same Supreme Court has handed down a ruling you don't agree with, then they should be Impeached (its okay to keep the ones you agree with), their all fools(well the 6 that voted for the ruling) the Freepers know whats best for the country, and the Supreme Court all of a sudden is an evil bunch led by satan, that should be thrown out, at best, if not branded traitors and locked up.

You know, there's some truth to this..

Republicans wanted Clinton OUT. He did so much damage to our republic and was so vile that, yes.. There is a double standard, completely divorced from objective thought, on display here from time to time.

Republicans aren't completely immune to "Rose Garden Syndrome" either it seems.. It's not right, and it's not as pervasive and "lock-step" as you see on the leftie sites. But there's some truth to that.

The rest of your post however is pure hogwash.

Seperate drinking fountains and such? If that's what you really think, then you either are deluding yourself or you need to spend more time reading.

I have never heard anyone sell FReepers that short. It's a complete fantasy.

I hope you were just being sarcastic..