Posted on 06/28/2003 7:08:52 AM PDT by 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
Read further into the thread. This argument will not win the day with cherrycapital.
He or she believes in rule by an elite few, preferably libertaraian and libertine.
And what are the constraints upon the expression of one's essential humanity? Are there any?
What are the categories of essential humanity?
Since this is not about privacy, how can expressions of one's essential humanity be limited to private and decorous acts? Wouldn't that intrude on the rights of sexual exhibitionists?
To say that a state CAN'T criminalize private sexual transactions between consenting adults is to ignore the 10th Amendment and give it no effect whatsoever.
And to say "give it no effect whatsoever" about the 9th is to limit the unenumerated powers of the 9th to just sexual activities. Does it not reserve unenumerated powers under a whole host of other issues, like say the right to travel and not be "bound to the land" like serfs were, among other issues?
On what grounds did the people of Texas award the majority the "privilege" of engaging in deviant sexual intercourse without fear of repraisals?
The 10th Amendment guarantees that the people of the state of Texas may elect a legislature which decriminalizes sodomy between members of the opposite sex, for everyone over the age of consent.
The same 10th Amendment guarantees that the people of California may elect a legislature which decriminalizes consensual sex between adults, regardless of gender.
Can't be done.
The Ninth was written and ratified to limit the power of the Federal Government.
(as proposed by Madison it read ...“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” )
It was rewritten for style, it was redundant to say it limited the Federal government.
Only under the Fourteenth can a federal court "construe" ( to be kind) itself this power. Though bizarrely it means denying everyone the Ninth amendment protection of their unenumerated rights from the federal government.
But perhaps I shouldn't presume any limit to the court's ability to construe itself powers.
I'm fairly certain the USSC justices pondered all these questions and have given some forethought as to how they should be handled if the case ever becomes ripe.
JUN. 27, 2003: SODOMY IN TEXAS Lawrence v. Texas does more than strike down an archaic and unenforceable law. It does more than stretch the Constitution in directions unintended and unimaginable to the Constitution’s authors. It is above all things a case that opens the way to a wild new era of judicial activism. Here’s why.
You have to read Lawrence in conjunction with another case, Romer v. Evans, decided in 1996.
Romer involved a voter initiative in state of Colorado: Proposition 2. Some towns in Colorado had amended their municipal law to include sexual orientation as a prohibited grounds of discrimination. The voters of the state then amended their state constitution to stop the towns and to settle the legal status of homosexuality in the state. The argument that won the day in Colorado was something like this: “We Coloradans regard homosexuality as a private matter, like smoking. If you are homosexual – that’s fine, that’s your business. But we’re not going to use the power of the state to punish people who disapprove of homosexuality. That’s their business. We want our laws to be neutral on the subject, neither anti-gay nor pro-gay.”
That argument lost. In a decision written by Justice Kennedy, the court held that removing sexual orientation from a state’s list of protected categories – that is, removing it from the list beside race and national origin and placing it on the same list as smoking, left-handedness, and so on – was an act of “animus” against a class of citizens and therefore a violation of the Equal Protection promises of the federal Constitution.
Now here’s the part that is relevant today. As Justice Scalia pointed out in his dissent, it would have been perfectly constitutionally OK in 1996 for the state of Colorado to criminalize homosexuality altogether by passing a sodomy law. The effect of Romer was to offer states a stark choice: Either you treat homosexuality as a crime, as Georgia does, and as we upheld in Bowers v. Hardwick in 1986. Or else you treat it is a protected category. There’s no in-between. Neutrality is not allowed.
See where this takes us? This week, the Supreme Court overturned Bowers v. Hardwick. States will no longer be permitted to treat homosexuality as a crime. By the logic of Romer that leaves them (as this Supreme Court sees it) no option but to treat it as a protected category.
In other words, every form of distinction now drawn between homosexuality and heterosexuality – from the ban on avowed homosexuality in the military to the non-existence of same-sex marriage – has overnight become constitutionally suspect.
That does not mean, it should be said, that they are constitutionally doomed. Justice O’Connor may bring her famous fuzzy logic to bear and say, like a child plucking daisies, “I like this rule, I like this rule not.” So we may see a series of 5-4 votes in favor of overturning those rules that seem somehow archaic to her while sustaining 5-4 those rules that please her. It’s anybody’s guess which will be which. But in the end, all of them will likely be struck down.
One last thought: In the past week, we’ve been given some of these most powerful dissents in recent history, two by Justice Scalia, two by Justice Thomas. It is very striking to me to see the difference between the two – Scalia’s witty, slashing, devastating; Thomas’ grave, eloquent, and sorrowful. We have in these two men two of the greatest jurists of the 20th century. One of them, Justice Thomas, has been the target of scurrilous attacks that continue to this day. He has not flinched or retreated or in any way been infected by the bitterness of his detractors. He’s shown himself more than a great lawyer; he’s a great man. We’re lucky to have him on the bench – and in American life.
After reading this, and then thinking about the "Lawrence" case, we are in deep trouble here folks. I really don't think those Justices have a clue as to what they just did.
Why do you continue to raise the red herring that a SCOTUS decision pertaining to an individual's right to privacy will impact the laws governing public behavior?
It's only unfair in that it omits that I have a problem with the SCOTUS fabricating this tool in order to concoct a rationale to achieve the outcome they desired. Otherwise, it's completely accurate.
Just to carry it a little further, since I question, as did the three dissenters, the wisdom in creating this new tool, I must necessarily question the ability of the Court to weiled it wisely.
Amendment XIVSection 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
On what grounds did the people and the legislature of the State of Texas stand on when they abridged the privileges of a minority of its citizens?
To confuse this issue with the right to privacy is actually the red herring.
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