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

[Courier]

Is there a lot of incest going on? I don't remember ever hearing about adults charged with incest.

If kids are involved, this ruling is not applicable, as it's not consensual privacy.

Does anyone believe that even if this could be applied to incest, consensual adult incest would become a problem.

Really there is nothing to get excited about. The dirty legal secret of the Supreme Court is that nothing is absolute. There is no such thing as strict construction from any Justice, ever. It's really impossible to "strict construct" 18th Century intent into modern times. The Court form opinions that mirror the times.

That is why with both this decision and Roe, private, out of sight, consensual prostitution laws should be easily unconstitutional, but they won't be. The Court will find a rationale for the laws, because the American public will not now accept such acts being legal. The Court's decisions are full of hypocrisy.

[AmishDude]

Now that copulation is a Constitutional right,

Technically, I believe that, at the present time, only same-sex sodomy is a constitutional right.

[BlazingArizona]

Well thats my 2 cents, you can all return to your hate orgy now. You should all be ashamed of yourselves.

The division between those who want to control the lives of others and those who want maximum freedom for all is totally distinct from, and more fundamental than, the difference between the left and the right.

[Courier]

I wasn't aware that his victims consented to be murdered? On FreeRepublic you learn something new everyday?

[sinkspur]

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

Did you change your mind? Last night, I understood you to say it wasn't.

[jwalsh07]

Adams, you are a dishonest fellow and should we meet a the freeper ball in DC, I'd be happy to tell you that to your face.

The person in questions handle is Chemist_Geek. I refer to you as adams. Is your last name an epithet as well.

Not only are you constitutionally illiterate, you are vocabulary challeneged as well.

Try again dingbat.

[shred]

This was a very sensible, conservative, anti- big government decision.

Now the government cannot, for all of time, ever come into anyone's bedroom and arrest them for consensual private sexual activity.

If you big government loving theocratic crusaders are this upset about it, it means it probably was a truly *great* decision.

shred

[stop_fascism]

I never heard them say they didn't. <;-).

[jwalsh07]

You misunderstood. But lets start here.

ZGo down to your local junior high school and survey the male students. Ask them which would be more traumatic, being raped by a woman or by a man.

[tdadams]

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.

How can you be so sure they're not simply aficianados who like to trade their wares? Ask any cop who works on kiddie porn cases. Nearly all of it is freely traded by aficianados.

[mrsmith]

"You have to wonder if incest cannot be outlawed after this ruling. "

That topic arouses much hyperbole from both sides, but- they certainly have claimed the power to rule one way or some other on the issue.

On the other controversial topic of minors' sexual rights, at most I expect the Supreme Court to just demand those laws be uniform throughout the states- for now. From this ruling they will apparently be made uniform with those in Europe- unless Africa or Asia or some other region is in vogue with the law school community when a case comes before them.

[Jhoffa_]

How can you be so sure they're not simply aficianados who like to trade their wares?

39,000, non-profit, animal sex websites..

?

(Thirty Nine Thousand... )

[Polycarp]

You certainly are presumptuous

IF that is the case, then you are in a very small percentage of the folks who imbibe your libertarian views here. The vast majority of folks have never heard of Griswold.

along with short tempered today

Cranky would be a better word. I don't suffer all the fools here who call themselves "conservatives" very well.

[tdadams]

And suppose this ongoing bit of hand wringing has sapped you of any sense of humor too.

[sinkspur]

Go down to your local junior high school and survey the male students. Ask them which would be more traumatic, being raped by a woman or by a man.

They'd say the man. That would be homosexual rape.

The girls,however, would also say the man, and that would be heterosexual rape.

There is no rationale in law to decide that one is more traumatic than the other.

[Torie]

You are right on this one John. Somehow, all of these decisions are too much for folks to handle, and common sense seems to have been attenuated by it all. But getting into an argument where the dice are so loaded in your favor, is really not very sportsmanlike.

[Question_Assumptions]

For the record, I agree with moral and non-legal philisophical elements of Lawrence and Griswold but not with Roe. But one needs to seperate the ends from the means because the means in all of these cases are awful and damaging. We are at the point where people are forced to decide which presidential candidate they want to vote for based on the judges they will appoint. Forget the amendment process. Forget laws. If you want something, grab some lawyers and run to the men and women in black robes and hope you get lucky. The law should not be so random and in the hands of so few.

See this article for some interesting observations by one of Justice Blackmun's pro-Roe clerks about how harmful Roe is.

[stop_fascism]

Isn't that beside the point. The citizens of the state, operating through their legislature, decided that one was worse than the other. Shouldn't they be able to make that determination?

[AnnaZ]

Matthew 5:22

That was the first thing that popped into my mind as well. I catch myself often with it, but not as often as I should. (What is that strange burning sensation?)

[Torie]

Well, then Limon is not really the right vehicle is it to apply the Sinkspur doctrine, because the case involved male on male. Upholding the sentence while noting that the law is unconstittional to the extent it lacks a rational basis for having a harsher sentence for lesbian rape, would be mere dictum.