Posted on 06/28/2003 7:08:52 AM PDT by Polycarp
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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