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

[cherrycapital]

It is contemptible for the state to prosecute an 18 year old for having consensual relations with a 14 year old. But all the Limon decision did was say the sentences for heterosexual and homosexual offenses had to be equal. Is there a problem with that?

[aristeides]

I also didn't mention that the 14-year-old victim too was, as you put it, "mentally delayed." Doesn't that make the case worse? I also didn't mention that the perp had a prior.

And are you denying that Limon shows that, whatever Kennedy said in Lawrence, the Supreme Court has no intention of limiting the effects of Lawrence to cases involving consenting adults?

[bart99]

I tend to agree with you.

Does this ruling also make prostitution legal?....... the cops must be scratching their heads trying to figure out if the privacy rule applies, and if so they probably have no more than potential tax evasion of a prostitute as a cause to arrest the person - but for that they'd have to wait for April 15. *sigh*.

[bvw]

The right to kill or be killed.

[cherrycapital]

"The most comprehensive of all rights, and the right most valued by civilized men; the right to be left alone." (Brandeis)

[aristeides]

I don't share your opinion that it is contemptible to prosecute an 18-year-old for sex (consensual?) with a "mentally delayed" 14-year-old. The fact that you would call it "consensual" shows where you're coming from.

But, contemptible or not, what makes it unconstitutional? Lawrence? If so, that's my point.

[cherrycapital]

The 14 year old victim was a willing participant. In a civilized country it would never have gone to trial, much less earned a 17 year sentence.

[Van Jenerette]

the FOUNDING FATHERS UNLEASHED		Our Constitution provides the legitimate foundations of this country as a free nation that is of the people and by the people but, we must read beyond it words and read it's authors words and thoughts in order to understand the warnings they have sent through generations to it's application in todays world.
		warning... "We have no government armed with power capable of contending with human passions unbridled by morality and religion...Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." - John Adams, October 11, 1798 warning... "Have you ever found in history, one single example of a Nation thoroughly corrupted that was afterwards restored to virtue?... And without virtue, there can be no political liberty....Will you tell me how to prevent riches from becoming the effects of temperance and industry? Will you tell me how to prevent luxury from producing effeminacy, intoxication, extravagance, vice and folly?..." - John Adams, in a letter to Thomas Jefferson

The entire argument about sexual behavior is so simple it can be reduced to the following: Should there be any social rules about what sexual activity a human being engages in?

If the answer is no then everyone should just shut up...hetero is okay, cousins are okay, polygamy is okay, bi is okay; gay is okay, 13-year olds are okay, and one or one-hundred-at-a-time are okay, et. al.

However, if a society decides that certain rules about who does whom when and where is functional and perhaps even necessary, all that is left is to decide is WHAT are the rules of sexual behavior and WHO shall make them...simple. Those who follow the 'rules' are then NORMAL and all the rest are PERVERTED or DEVIANT... so very, very simple...you decide.

Van & Katherine Jenerette

www.jenerette.com �

[cherrycapital]

I would say it is a violation of the right to privacy, which, unlike the Burger and Rehnquist courts, I would locate in the 9th Amendment doctrine of unenumerated rights rather than the shaky "substantive due process" doctrine.

[aristeides]

Again, if Kansas wants to give everybody a 17 year sentence for this offense, they are free to do so.

Are you sure? Mightn't that interfere with the essential expression of identity?

Anyway, the details do nothing to refute my point that Limon shows Lawrence doesn't just have implications for sex between consenting adults.

[Van Jenerette]

I'm afraid you are right....

[tdadams]

It's amazing how you're having to dance around the facts and details of this case to support your outrage.

[aristeides]

That's what you would say. In its order yesterday, the Supreme Court pointed to Lawrence as the reason.

[cherrycapital]

Social rules and criminal laws are not the same thing.

[Kevin Curry]

Toothless is witless--a BIG cavity in the cranium. It will require a dentist with a scoop shovel and a small cement mixer to fill it.

I'll bet you're a barely-post-adolescent ersatz South Park conservative--no children, no real responsibility other than stuffing yourself with the thrill of the day.

[aristeides]

It's amazing how you do not consider my point, that Limon shows that Lawrence is not limited in its legal effects to cases involving sex between consenting adults.

[bvw]

You've been well-trained by the Human Secularists, grasshopper.

[cherrycapital]

Yes, Lawrence and its 14th Amendment argument. I don't agree with that argument, but would've reached the same conclusion based on the 9th Amendment, both in Lawrence and Limon. I'm not sure what your point is.

[Kevin Curry]

Libertarians are notoriously short-sighted. They figure what they can't see, can't hurt them.

[tdadams]

You're picking a very shaky example to make your point. The fact that you're doing a lot of dancing around the facts and details only confirms that.