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

**********************************************

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]

I thought he told me as much sometime ago.

[Torie]

OK, so your libel isn't malicious. That is only a defense vis a vis public figures, however. Go find a lawyer.

[WOSG]

This is not about homosexuality. get a clue!

This is about Judicial usurpation of democratic processes ... this ruling says there are NO LIMITS on judicial review.
Anything they think the state has no business doing, they just over-rule.

It was a wholly arbitrary application of principles NOT found in the constitution.

Roe was built on the the "innocuous" Griswold decision that merely forbade regulation of contraceptives. who is to say what is harmless??? WITHOUT IT, ROE WOULD NOT EXIST. The Pandora's box has been opened further with this over-reaching ruling.

[Sabertooth]

Thought so, just wanted to make sure and avoid the confusion, of which there is plenty, even on this forum.

Take, for example, this current vanity thread.

Freepers In Support Of The Supreme Court
Vanity | 06/28/03 | shred

Posted on 06/28/2003 12:38 PM PDT by shred

I think there are many Freepers who are tired of this constant bashing of the Supreme Court for Lawrence v. Texas. I think they did a great job and stuck a knife in the heart of big government.

Individual liberty is at the heart of what conservatism is all about - the individual having primacy over the state. It disturbs me that there are so many who wanted to see the state prevail in its desire to regulate private, individual freedoms.

I say, good job, to a consistent, conservative SC! You did exactly what you're supposed to be doing.

---

Ow.

[Luis Gonzalez]

As a follow up, and the resoning behind the scenario is this bit from the US Constitution:

Article III

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

[Torie]

And here I thought I was the most liberal, and most suspect chap on this forum, that had not yet been banned. Curious.

[Luis Gonzalez]

There's one watching Spongebob with my kids in the living room right now, it's my little brother.

I would ask him, but I can't afford what he charges per hour.

[Luis Gonzalez]

BTW, what's your answer to #377?

[tdadams]

Nor should we base them on the whim of the SCOTUS.

This wasn't decided on a whim. The court challenged Texas to justify the law on a rational basis and they couldn't do it.

[Sabertooth]

If this issue is relegated to the State level, where it rightfully belongs, what would happen once California strikes all anti-sodomy laws from the books, legitimizes same-sex marriages, and a couple of married homosexuals from Fresno get transfered by their jobs to a State that still holds same-sex anti-sodomy laws, and does not recognize same-sex marriages?

In that wild-eyed liberal way of ours, California has already affirmed a referendum which defines marriage as a union between one man and one woman. BTW, we haven't had sodomy laws on our books in decades.

Congress has already passed the marriage defense act, which was signed by that crazy conservative, Bill Clinton. Same sex marriages in one state can't be used to force them onto others.

The only threat to the traditional definition of marriage comes from SCOTUS decisions like the one you're defending.

[WOSG]

You are quite intolerant or the faction of morality arent you. Turn it around:

"You can have all the dissolute, sexualized and homosexualized and depraved culture you want in your own homes and 'churches'. But the government is not your private goon squad for the enforcement of Secular amoral bevahior and undermining of traditional virtues."

Would you accept that or call that "intolerant"?

The agenda of amoralists is not "tolerance", it is the replacement of one set of moral values for another, "politically correct" set of value.
I fail to see how rearranging our prejudices advances society.

[Sabertooth]

This wasn't decided on a whim. The court challenged Texas to justify the law on a rational basis and they couldn't do it.

The Court's first whim was the presumption, contrary to the 10th Amendment and its own 1986 decision, that it even had standing to hear the case.

[bvw]

Why do you not engage in homosexuality?

[Torie]

Sans Lawrence, if sodomy is committed in a way where it is illegal in one place and not another, then in the one place if one makes sure the cops watch you do it, you won't get arrested, and in the other place you will, if you can interest them in it all, which typically you can't. So the answer is nothing. Some places a private act is legal, and some places, not.

But gay marriage is a public matter involving the state, as are civil unions, with attendant property rights. A divided House on this matter cannot stand, for long. That is a whole different kettle of fish. Once civil unions get a bit of seasoning, and become fairly common, SCOTUS will indeed weigh in, if Congress does not. It will really have no choice. Under old tools, it would do so on the grounds of the fundamental right to travel, most likely, although the full faith and credit clause is another available tool.

[HennepinPrisoner]

The sky actually is falling. Yesterday, in Limon, the Supreme Court vacated the sentence of someone who had homosexually molested a 14-year-old boy, on the basis of Lawrence.

That's because if his victim had been female, he would have been set free from jail 21 months ago.

[WOSG]

"It is contemptible for the state to prosecute an 18 year old for having consensual relations with a 14 year old. "

Really? the mind boggles. you think society is better off with (homo)sexualized 14 year olds????!?

What is contemptible is thinkin mentally retarded 14 year olds can be preyed upon by older homosexual predators and some judges think they are doing good by stopping the state from protecting the youth from such incidences.

Homosexuality is one line crossed. the next is pedophilia. you have unwittingly admitted as much. Sad. sick and sad.

"But all the Limon decision did was say the sentences for heterosexual and homosexual offenses had to be equal. "

There is nothing in the constitution that truly requires this. judicial tyranny writ large. If it is better public policy to make the sentences the same, the democratic porcess can and should take care of it.

As it is, the judges have created evil and injust outcomes in the name of a 'principle' that has no coherence or validity.

[Luis Gonzalez]

So then, you praise the violation of the US Constitution as long as it suits your ideology?

"Congress has already passed the marriage defense act, which was signed by that crazy conservative, Bill Clinton. Same sex marriages in one state can't be used to force them onto others."

"Section 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.

Bill must be a hero of yours.

[aristeides]

Congress has already weighed in on the gay marriage issue with the Defense of Marriage Act, passed by overwhelming majorities in Congress and signed by Clinton. Of course, after Lawrence, there's a good chance the Supreme Court will strike down the Defense of Marriage Act as unconstitutional.

[Luis Gonzalez]

I answered your question honestly, now answer mine.

Do you engage in acts of sodomy?

[tdadams]

Why would it not have standing to hear the case? That's ridiculous. The defendants had standing to appeal, the case was ripe since they had been prosecuted, and the court granted cert. Please tell me why you think the USSC doesn't have standing in this case?