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

[Kevin Curry]

Don't be coy, Luis. You posted to me once--someone you have never met and know nothing about--"If you say you have never had oral sex, you are lying."

Your bizarre and unfounded accusation spoke volumes about your own perverse sexual practices, and yours alone.

[sinkspur]

But the ones that will are cheering the Lawrence decision.

Anybody who would try to figure out a way to have sex with an animal is not going to be constrained by the law.

I find it interesting that Texas doesn't even have a bestiality law. That's right, and sheep aren't a major industry here, either.

[Sabertooth]

Well, well...now you are defending something called "The Defense of Marriage Act signed into law by that renown defender of marriage William Jefferson Clinton. A law which clearly violates the 14th Amendment to the US Constitution

If you want to make the argument that the 14th Amendment nullifies Article IV, Section 1, go for it.

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

It's on the basis of this Section of the Constitution that Congress has the power to enact the Defense of Marriage Act. Ask around.

[independentmind]

I'm not going there until you tell me how oral sex performed ON a man is materially different if performed BY a man rather than a woman.

I don't always agree with Arhtur McGowan, but he has the best answer for your question: there is little difference if it results in a sterile sexual act.

Oral sex between heterosexuals at least has the potential to be a fertile sexual act.

Humanae Vitae is a most interesting document.

[tdadams]

I find it interesting that Texas doesn't even have a bestiality law.

How could that possibly be? We all know, it's so obvious, without a law to prevent it, people would be screwing every animal in sight. We need the government to restrain us.

[Diddle E. Squat]

To be honest, I don't know much about the laws pertaining to marriage and their implications and nuances. But are there not policy goals and advantages bestowed via marriage laws(tax issues, for example) because the legislature decided that they wanted to promote marriage, for whatever reasons? So it would seem that 2 different classifications, while perhaps treated the same when it comes to something like inheritance, would allow for flexibility in other areas, where community standards and policy preferences might differ from state to state(or are any community standards still allowed to exist these days?)

For example, take adoption. Suppose the elected representatives of a state decide that a good solution for the adoption issue would be to encourage more married couples to adopt by giving them a $2,000 per year per child reimbursement(ignore the wisdom of the policy, it is just an example to illustrate why a difference between CU and marriage might make a difference). They reason that there are distinct advantages for children raised in a traditional one dad-one mom home, better than in a single-parent or single-gender household. Without 2 different categories, they can not differentiate between traditional and gay couples to implement this policy. Having such a distinction doesn't prevent gay couples from adopting, but it does allow the state to aid what they view a more optimal solution.

One doesn't even have to go that far to see a potential need for a distinction. Remove the state angle, and just look at a private adoption agency. If there is no legal difference between CU and marriage, then wouldn't an agency be prohibited from giving preference to a traditional couple over a gay couple in placement decisions? Wouldn't they be likely to be sued and lose on grounds of discrimination? With CU they probably still would be sued, but at least there would be a possible defense that the state intent was for there to be a difference when it set up a separate CU category.

[Sabertooth]

Then the end game set up with the Defense of Marriage Act is to write an amendment making same-sex marriage a constitutional right. If any conservative president tries to bring down the DMA, in an attempt at avoiding the constitutional crisis, he would be seen as a liberal, pro-gay, anti-State's rights guy.

The only way DMA becomes a Constitutional crisis is through the clutching at power of judicial activists, such as that which you've supported on this thread.

[tdadams]

Oral sex between heterosexuals at least has the potential to be a fertile sexual act.

I'm not even going to post what all that conjures up.

[Luis Gonzalez]

The Democratically-controlled Senate, led by Al Gore, passed a law (signed by Bill Clinton) which nullifies a section of an Amendment to the US Constitution, and you see this as a good thing for the conservative cause?

Tell me, what other good things did the Clintons, the Gores, and the Carvilles do for us while they were in power?

[sinkspur]

there is little difference if it results in a sterile sexual act.

The truth is, there is no material difference in the act itself, no matter who performs it, no matter the result.

[WOSG]

"And my point is that there are always goon squads enforcing somebody's morals, no matter what -- because, in the end, that is precisely what government is. "

Well said!

At least the Libertarians will be consistent.

The Homosexual/radical anti-moralist lobby have no qualms about consistency and 'live-n-let-live'. they wont skip a beat from this to denying boy scouts and churches etc. their own rights to free association.

[independentmind]

My apologies. I read #491 incorrectly.:)

[Torie]

Good post, and you have some valid points about adoption, if the law is tied to the state or "marriage." This is all a work in progress, and it is amazing how pathetic the public square has been in hashing this out in any manner remotely intelligent.

[sinkspur]

We all know, it's so obvious, without a law to prevent it, people would be screwing every animal in sight.

Well, I dunno.

There was a story in the papers last week that Texas is shipping animals from shelters to other states.

Seems we have an overabundance; draw your own conclusions.

It can be safely said, however, that Texas has not become the bestiality capital of the world because we don't have a bestiality law.

[Kevin Curry]

You have an inane fixation on a single bizarre sexual practice that doesn't even begin to make your case. The greater damage is being done across the entire horizon of American culture as SCOTUS uses its authority and imprimatur to say, "Sexual perversion shall be protected regardless of the costs to society. Each practicing sodomite and pervert and his or her partner shall be accorded and equal full dignity with the traditonal families of America."

What a wonderful "lesson" to teach the rising generation.

Meanwhile, gay activists shore up their attack by pressing hate crime legislation that intimidates people from even expressing private disapproval of sexual perversion.

And you sit back smug, and applaud it.

As far as causing an increase in perversion, time will tell. There were a great many people who said after Roe v. Wade was decided, "It's not like this decision is going to cause every woman in America tomorrow to want to have an abortion." Thirty years later the death toll is 20 million and rising.

[Diddle E. Squat]

it is amazing how pathetic the public square has been in hashing this out in any manner remotely intelligent.

And how can that be changed?

[Torie]

It can't really, except in tiny footsteps over time.

[WOSG]

You think discrimination against motocycle riders is a wonderful, but discrimination against those engaged in sodomy is a terrible thing.

How much jail time should a helmet-less motorcycle rider get?
How much jail time for not using your seat belt?
How about paying below the minimum wage?

Why should capitalism between consenting adults in the privacy of their own storeroom be a crime?

All of them are victimless crimes. Your logic leads to obvious conclusion: All such crimes should be allowable, or all should be repealed.

You want to enforce some morality but not others. Who is being inconsistent here???

[Torie]

It can be safely said, however, that Texas has not become the bestiality capital of the world because we don't have a bestiality law.

Bragging about Texas again are you? Texans seem to have a penchant for that. As for myself, I have put my bragging about California on temporary hold. Cheers.

[Sabertooth]

The Democratically-controlled Senate, led by Al Gore, passed a law (signed by Bill Clinton) which nullifies a section of an Amendment to the US Constitution, and you see this as a good thing for the conservative cause?

Tell me, what other good things did the Clintons, the Gores, and the Carvilles do for us while they were in power?

The DMA was passed by a GOP House and Senate in 1996, and signed into law to by Clinton to "take the Republicans' issues away."

At that time, in fact during the entire Clinton Administration, Al Gore was not in the Senate. He was Vice President.

You have all the facts wrong, as well all the arguments. Like I said, ask around if the DMA is unconstitutional based on the 14th Amendment. Congress was empowered by the Article IV, Section 1 to enact DMA.