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

[Luis Gonzalez]

The Bible says that heterosexual sodomy is OK?

[huck von finn]

Yep. It's about sex.

[jwalsh07]

If so, perhaps SCOTUS won't feel the need to take on whether the failure to label it "marriage," is a denial of essential humanity

LOL, no way no how. This decision wasn't a spur of the moment castration of the tenth amendment. Kennedy has been studying the French for years.

[colorado tanker]

There is no Constitutional basis for the federal government to extend a privilege of sodomy, or immunity from prosecution of it, to anyone. It's simply not a federal matter. There is no application of the 14th Amendment.

Had O'Conner persuaded a majority to hold with equal protection as the basis of the decision, it would have been even worse. If gays are a class for equal protection purposes, then gay marriage and adoption are mandated and gays can sue government agencies for discrimination under 1983.

[tdadams]

We are not at peace.

Oh, I've seen it all now. If you support the Supreme Court in Lawrence v. Texas you support the terrorists.

[Jhoffa_]

They're not even Christian morals. They are fundamentalist Christian morals...

fun·da·men·tal Pronunciation Key (fnd-mntl)

adj.

1. 1. Of or relating to the foundation or base; elementary..

n.

1. Something that is an essential or necessary part of a system or object.

[bvw]

Homosexual sodomy is worse, that is clear in the story of Lott, as I mentioned in thread prior.

[Sabertooth]

Sodomy as a behavior was not outlawed for 97% of the population of Texas, it was however outlawed for a minority of the citizens of the State.

You consistently misunderstand, but I'll try again. Every adult in Texas, under the state law, could practice consensual sodomy with an adult of the opposite sex. No adult could practice sodomy with another of the same sex. The law was equally applied, not "outlawed for a minority."

Trying to elevate homosexuality to minority status is an understood ploy, but it does not hold water. People are homosexuals because the choose to engage in homosexual acts, People are pedophiles when they choose to molest children. People are adulterers because they choose to engage in adultery.

To refer to people as "homosexuals," "pedophiles," or "adulterers" is to describe their behavior, not their intrinsic identity, or their "essential humanity," to borrow Anthony Kennedy's whimsical phrase. These people are not minorities, they are practitioners of behaviors.

[Torie]

SCOTUS will probably fashion something that I find aesthetically pleasing as public policy if it were adopted via the legislature, but in doing so, they will be abusing their power, and degrading the robustness of the public square, and in rendering good folks like my very good friend John Walsh, the losers by judicial fiat, will create in them a sense of enragement, per the denial of them of their liberty to express their essential humanity to participate in the public square without the dice loaded against them. (Only a lawyer could write a sentence that long, but I like it, so I am going to keep it, so there.)

And I would be constrained to respect and understand such rage. There, but for the grace of God, go I.

In short, we have at once an abuse of power, and a degradation and poisoning of the public square issue here. Moreover, in judicial confirmation battles, the list of litmus test issues for senators will soon grow longer than a grocery list: abortion, gay marriage, sodomy, the new tool of right to essential humanity, you name it. Just who will be confirmable, particularly if you need 60 votes?

In short, we are going down the wrong road here. I hope that helps.

[jwalsh07]

Look Luis, save it for somebody else, I've been here and done this line of "questioning".

Here's my position.

If I had a vote I would vote to ban all unenforceable laws including the Texas sodomy law.

If I had a vote I would vote to impeach any judge who divined rights in an effort to change policy. I would start with Kennedy. His decision, in part, based not on Scottish law but on European morality is sickening.

But hang in there, when he finds a transcendental liberty that guarantees socialised medicine and freedom from guns, a la the French and their European socialist comrades, I'll expect you to defend judicial activism to the bitter end in an effort to be consistent.

[Luis Gonzalez]

"They didn't, they legalized consensual sodomy between members of the opposite sex, for everyone."

So then, you would argue that a law banning Jewish religious ceremonies from being performed, and for people to participate in Jewish religious ceremonies, should not be considered as prejudiced because it treats everyone equally as it bans Gentiles and Muslims from performing or participating in Jewish religious ceremonies as well?

[bvw]

We are no longer talking "Scotus will fashion" -- the theory of "emerging consensus" is now available to every case before a Judge.

[Luis Gonzalez]

"...freedom from guns..."

Laws should apply to all citizens equally, this one did not.

If the law above made it illegal for a specific segment of the population to opwn guns, I would fight it.

[huck von finn]

Here is more information. It's a horrible story. The boys were both mentally retarded.

Justices Void Prison Term Given Gay Teenager in Kansas By DAVID STOUT WASHINGTON, June 27 — In one of the first consequences of its landmark ruling on gay rights on Thursday, the Supreme Court today set aside the lengthy prison sentence imposed on a gay Kansas teenager for having had sex with a younger boy. In a brief order with little elaboration, the court vacated the 17-year sentence imposed in 2000 on the defendant, Matthew Limon, and returned the case to the Kansas courts "for further consideration in light of Lawrence v. Texas." The case of Lawrence v. Texas, which was decided on Thursday and overturned an Texas antisodomy law, upheld the constitutional right of gay people to engage in sexual activity in private. The court's directive today that the Kansas courts reconsider the Limon case with Lawrence v. Texas in mind was tantamount to an instruction to set aside the prison term imposed on Mr. Limon, and perhaps to take a close look at what has been called the state's "Romeo and Juliet Law." The statute gained that nickname in some legal circles because it regards oral sex differently when it involves heterosexual teenage couples, as opposed to youths of the same sex. When one member of the couple is aged 14 to 16 and the other is older, the act is statutory rape under the Kansas law and the most common penalty is probation if the two are heterosexual. But probation is not available to same-sex teenage couples. Matthew Limon was one week past his 18th birthday in early 2000 when he performed oral sex on a 14-year-old boy at the center for developmentally disabled young people where they both lived. No violence or coercion was involved. Had Mr. Limon performed oral sex on a 14-year-old girl, he could have received a prison sentence of about 15 months, and possibly just probation. Instead, he is now about three years into a 17-year sentence in the Ellsworth Correctional Facility. Under his sentence, he was also ordered to register as a sex offender upon his release. http://www.nytimes.com/2003/06/27/politics/27CND-SCOTUS.html?hp

[tdadams]

People are homosexuals because the choose to engage in homosexual acts

That is a obviously a matter of opinion and it's at the root of this whole debate. We don't base laws on what Sabertooth opines.

[Sabertooth]

In short, we are going down the wrong road here. I hope that helps.

Yep, and so did the long and lawerly sentences. We're agreed.

[tdadams]

That's a pretty good summary of an all too common line of thinking on these threads.

[Sabertooth]

If I had a vote I would vote to ban all unenforceable laws including the Texas sodomy law.

Just a clarification: is that at the state or fedral level? If we're talking about a Texas vote, then I agree.

If I had a vote I would vote to impeach any judge who divined rights in an effort to change policy. I would start with Kennedy.

Yes and yes.

[Luis Gonzalez]

SCALIA'S MORALITY OF PREJUDICE: Antonin Scalia's dissent in Lawrence vs Texas is, as usual, interesting and not quite as chock-full of animus toward homosexual dignity as in the past. It comes down to two arguments: that an assertion of "morality" is justification enough for any law anywhere, regardless of its rationality; and that a law that covers only same-sex sodomy is not discriminatory toward homosexuals. Both ideas strike me as wrong. On the first count, surely the government does need to provide some kind of reasonable justification for a law expressing "morality," which doesn't just rely on what people have always believed or always assumed. One reason that this law was struck down is because its supporters couldn't come up with an argument that justified persecution of private sexual behavior, apart from the notion that stigmatizing gay sex was somehow good for families. Allowing sodomy for 97 percent of the population, while barring it for 3 percent cannot possibly be defended as a law designed to prevent or deter the immorality of sodomy. It was a law entirely constructed to stigmatize gay people. It had no other conceivable prupose. And when "morality" is simply a rubric under which to persecute a minority, then we don't really have the imposition of morality at all. We have the imposition of a prejudice. At least the Catholic Church makes no distinction between heterosexual sodomy and homosexual sodomy. In fact, I know of no religious or moral tradition which makes the distinction that Texas law made until today. Scalia is not upholding any morality. He's upholding prejudice. As to his notion that the law doesn't single out gays because two straight guys getting it on would be criminalized as well, that's like saying that a law banning Jewish religious services is not anti-Jewish since goyim could not conduct such services either. It's the kind of sophistry you need to deny the obvious, hostile intent of the Texas law." -- Andrew Sullivan

The kudos go to Andrew.

[Sabertooth]

So then, you would argue that a law banning Jewish religious ceremonies from being performed, and for people to participate in Jewish religious ceremonies, should not be considered as prejudiced because it treats everyone equally as it bans Gentiles and Muslims from performing or participating in Jewish religious ceremonies as well?

This is a spurious comparison, as there is a 1st Amendment right to religious expression, but there is not even an unenumerated right to sodomy, or the vagaries of "expressions of essential humanity."