Is Lawrence Worse Than Roe?

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.

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.

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.

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

I don't think that is his point. He can correct me if I am wrong. The level of language and debate has been filthy, obscene and very un christ like. There is no hating the sin but loving the sinner, it is hate, anger, slander, accusations of homosexuality of those who disagree with some. Charges on the other side mocking faith in christianity. This debate has not been civil, just, or reasoned.

You can feel that the court is wrong, detail the constitutional law that was wrongly applied, without calling everybody one disagrees with whoring sodomites.

Clarence Thomas seems to be the only person with sanity here. He thinks the law is silly, but constitutional. Scalia, his comments notwithstanding, based his feelings more on his moral principles rather than the constitution.

I have more respect for Clarence Thomas, who I happen to disagree with here, than for the rest of the 8 justices combined.

Scalia hates homosexuals, so you know how he was going to rule. The left wing of the court was going to twist any way they could to rule how they did. Then alone, Clarence Thomas, states that he would personally vote down such a law, but sees no constitutional basis for him to do so personally.

I personally don't need any more of this "bible thumper, religious whackjob" talk on one side, or any of the faggot, sodomite, and much worse things on the other. Most of you claim to be adults. Please start acting like it.

I don't think Kennedy's waxing prose is very conducive to being applied to incest. I doubt very much that the extension of Lawrence to incest will happen (and its posited extension to beastiality is just plain silly).

Regarding Limon, antiguv pointed out on another thread (actually a thread that I think was quite productive) that Limon merely wants the lower court to review its rational basis decision for having a different sentence for homosexual rape and heterosexual rape bearing in mind that its citation of Bowers as a part of its argument is now no longer appropriate. There may be less here than meets the eye, although I suppose SCOTUS could have found the citation harmless error and be done with it. We shall see, but I would be amazed that if the lower court still finds a rational basis for the differential sentencing, that SCOTUS will grant cert again on the matter. Of course, I was surprised by the grounding of the decision in Lawrence (not the result), so surprises do happen.

But to say that private sexual transactions between consenting adults may be criminalized, is to ignore the 9th Amendment and give it no effect whatsoever.

You have to wonder if incest cannot be outlawed after this ruling. The ruling in this case is very applicable to incest. It IS still private sexual transactions between consenting adults.

Then you must follow Scalia's argument that the State cannot discriminate against these couples in the matter of marriage if the underlying behavior that caused the cultural approbation in the first place is no longer a compelling State interest to ban.

Even I, a conservative, can see that there is no foundation whatsoever to ban same sex marriages or (non-procreative) incestual marriage or multiple partner marriages if this ruling is used as precedent. Scalia sees it also. They are now privacy matters that the State has no compelling interest to ban. If it has no compelling interest to ban then it has no compelling interest to discriminate by denying the monetary and social benefits of marriage.

By this ruling, the court has opened the door for the Jerry Springer show to come knocking at their door. When it does, they will have to either have a hypocritical double standard or apply this precedent. The choice of undermining traditional society as we know it, or undermining the consistency of the law. Great choice for the Supreme Court of the United States.

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

You're delusional..

You said:

There used to be anti-sodomy laws in all 50 states. One by one as they were repealed, did we see people going down that slippery slope, asserting their right to sleep with goats?

Then I said:

Also, when those laws were repealed, they were done so by the people of the States, in a lawful manner... Just as they were enacted int he first place. That's simple and it's fair.

And in the majority of cases, that's accurate.

Then you "changed the focus" with Bowers.

And either way, it has absolutely nothing to do with an Unconstitutional mandate, handed down from the SC.

You are artful at misrepresentation, eh? If gay marriage is "legal" in Israel, it is because the "despotic" -- to use Karl Marx's own word -- comunists and Secular Humanists have forced their perversions on Israel. It is not "Jewish" -- as your deceitful statement suggests. Jewish Law is clear on the wrongfulness of homosexual sex.

Jewish Law is especially strong on the sanctity of marriage: being a man marries a woman.

I don't use eptithets and I resent your implying that I do.

The epithets for homosexuals come from both sides of the debate amazingly enough. The religious epithets are confined to one side by necessity.

I have no problem at all telling you I am a social conservative and that I consider the homosexual act perverse. But I don't use epithets because, thoguh, I am undoubtedly a sinner, it is poor form in an anonymous forum even though I post under my own name.

And by the way, I'd be more than happy to engage you in debate on whether or not homosexual rape is deserving of harsher penalties.

Only fools fail to see a slippery slope falacy. Fool.

Well, according to the "Right Wing" WP your slippery slope has been greased. Took less than a week.

Debate on marriage and more looms

Ruling directly points to another clash in nation’s culture war

ANALYSIS
By David Von Drehle
THE WASHINGTON POST

WASHINGTON, June 27 — The Supreme Court ruling to strike down the nation’s anti-sodomy laws combined two of the most contentious issues on the political landscape by grounding the liberty of gays in the same legal turf that sustains the right to abortion — and it directly points to yet another clash in the culture war: a fight over gay marriage.

Full article here

A_R

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.

A good start, but what I'd really like to see emerge from this is the IRS being enjoined from examining the financial status of individuals. We would have to convert from income taxation to consumption (sales) taxes, tariffs, and user fees for specified services. Then we would see a serious attack on government spending.

You erroneously labeled the article as being fallacious, and I called you on it. If you have a problem with the case laid out in the article, address your rebuttal to the case laid out in the article like everybody else is doing. But please, don't embarrass yourself again by illogically suggesting that all likely consequences must be ignored.

The author attempts to build his conclusions based a well established precedent of legal constructionism. This is the valid basis for how judicial decisions are made and how the implications of these decisions are discussed. Reading the actual decisions in the case would be a good place to start. I would suggest that in the future you be more careful in rejecting out of hand concepts you clearly do not yet understand.

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.

I'm using common sense, which is not so difficult as it looks on TV.
The purpose of businesses is to grow and make money. To expand markets and increase market share.
On the basis of this presumptive allegation, I hold that the propietors of the barnyard sex sites want to expand markets and increase market share.
Understanding the little-known phenomenon that pornography provides material for the sexual fantasies of it's consumers, and that these consumers like to indulge these fantasies, I've taken the wild leap in guessing that at some portion of this expanding customer base would like to actually engage in the fantasized behavior portrayed in their pornography.
However, bestiality is Illegal, so I've pulled the notion from thin air that people who want to get it on with a dog might not want to be arrested for it. An efficient way of insuring that would be to get a court ruling against laws prohibiting bestiality.
Then I got some tea leaves, and came up with the wild idea that people with bestiality fantasies might want bestiality to be legalized.
But hold the phone, because I'm working without a net, here. Here's a crazy thought: people who engage in one sort of sexual deviancy will be encouraged by the open-ended legitimization of another.
Dig it, baby. If it feels good, hump it. Anyone who says otherwise is a uptight, fundie bigot.

Good point.

It is a good point..

Now that copulation is a Constitutional right, what if you aren't married? You don't have a girlfriend (or boyfriend, or goat, or whatever) What are you supposed to do, rape someone?

No, no.. This is a "right" guranteed us by the Constitution.. We don't need no "bible thumpers" and their silly blue laws keeping us from our constitutionally protected orgasms.

I was referring to where our conversation had led, to my comment in 179 about post-Bowers repeals.

Yes, and I replied that even so, it was still an internal matter.

Now you have a universal standard handed down from on high.

It's a complete gutting of the Tenth.

I wasn't replying to you personally, that is why I added "All". Was just using your post as a starting point, and I apologize for any error. I in know way am accusing you of doing that.

I think though that part of the problem, as I see it is that we are often talking about apples and oranges in this debate. The question of what God wants, and what Rome law states are two different questions. What do we render to Caesar could be a great debate. I do consider myself a christian( failing, flopping, and struggling along), but a small l libertarian as well. I actually believe there is no inconsistency in that view. I choose not to sin often. It is part of my faith journey. To struggle against temptation that Rome allows and still rejects it reaffirms my faith. If I was going to be shot for committing adultery, it leaves me no spiritual struggle. It would be fear of Rome, not love of God, and the union between me and my wife that he consecrated that would be driving my actions.

I do believe the homosexual lifestyle is unnatural and against God's plan. I do though believe that Rome should not be forced to forbid it. 18 is an arbitrary cut-off, but there must be one somewhere. I believe at 18 one should lose the protection of the nanny state, and you should be free to take your path, as long as you don't violate the rights of another. Job was tested, and passed. So are we every day. It makes our faith richer.

Too bad John Wayne Gacy was executed. He could argue that what he did in the privacy of his own home was his unalienable right. It only concerned him and his consenting murder victim.

If the writers of the constitution thought privacy was an unalienable right, why did their societies permit laws that are now being overturned by this right?

If you want prostitution and driving without seatbelts to be legal, petition you state legislature.

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