Posted on 06/28/2003 7:08:52 AM PDT by 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
It's given me some food for thought.
Yes, I'll behave now. Mea culpa ;-)
Then, by logical necessity, you must agree that there is a rational basis for disparate sentencing for homosexual and heterosexual rape. To think otherwise would defy common sense.
We had in my own town a Police Chief who favored people and harassed others -- if he didn't like a man he'd have his officers follow the man's sons and ticket them for the smallest infraction. If you were from a family he liked -- you might be stopped for speeding, but the ticket would get lost. This went on for years and became worse not better.
However he was stopped in the next State by the State Troopers at a motel with another man's wife. The man had called it in. The Troopers called the local municipal officials -- under threat of a charge of moral turpitude the Chief resigned.
With the Law of the Land after Thursday, that Chief is still on duty, making live miserable for all and aggravating the contentions between people. That is NOT a good outcome.
(Note: this is a "close enough to the truth" version -- some facts are different.)
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Anyway you are celebrating the onset of chaos and petty tyrannies -- eventually wholesale tyranny -- by celebrating this decision.
Check out these cases of Moral Turpitude, open your head and heart:
The Commission on Judicial Conduct has determined that Calvin M. Westcott, a town court judge in Hancock, Delaware County, should be removed for having sex with a mentally retarded woman entrusted to his care, the New York Law Journal reports.In November, Westcott was convicted of endangering the welfare of a mentally retarded person, a crime of moral turpitude, according to the commission.
The state Constitution provides that upon conviction of a crime of moral turpitude, a judge shall be removed from office.
What about sex between staff and students where both sides agree to participate? As a result of a serious case involving a tutor, the sexual harassment committee at the University of Wollongong began looking into this issue in late 1991.We were concerned about two types of problems associated with "consensual" staff-student sex. The first is a conflict of interest, such as where a teacher has sex with one (or more) of his or her students. In this situation, the teacher cannot be, or be seen to be, an objective assessor of the student's academic work. A conflict of interest should be grounds for complaint by anyone affected, including colleagues and other students.
The other type of problem is abuse of trust. An academic is under an implicit obligation to foster the intellectual development of students. The trust that a student puts in the academic for this purpose can be abused when the relationship becomes sexual. But it is difficult for others to say whether trust has been abused -- only the student should be able to make a complaint.
In court Suzanne gave details of regular assignations at several different beaches, usually sandbanks (the professor carried a rug in his car) and once on a piece of Burnie-board at his partially completed house. In most cases they were unobserved, although 'two men and a dog' passed close by on one beach and at Bellerive beach Orr's car got stuck in a ditch and they had togo to a nearby house to get a tow. Once the university accountant saw her at the house site, even though she tried to hide. Some time after her nineteenth birthday they moved Indoors to the bedroom at his home. It was, after all, the middle of winter.When questioned about why she did not resist Orr, Suzanne said 'he did have some sort of power over me ... all through our association I held back and was talked into things by Professor Orr.' She had not intended the sexual relationship 'but I suppose I got into such a state that I thought it would be rather peculiar if I didn't or that it would be wrong or something like that.' She felt that Orr did have a powerful hold on her. She was very suggestible. Over two years of lectures she had come to identify totally with his ideas. '
As a matter of policy, the Iowa Law Enforcement Academy Council has used the definition set forth in IAC, Chapter 2.1(5) (hiring standards for regular enforcement officers) as the definition of moral turpitude. This rule states in part or crime involving moral turpitude. Moral turpitude is defined as an act of baseness, vileness, or depravity in the private and social duties which a person owes to another person, or to society in general, contrary to the accepted and customary rule of right and duty between person and person. It is conduct that is contrary in justice, honesty or good morals. The following nonexclusive list of acts has been held by the courts to involve moral turpitude: Income Tax Evasion, perjury, or its subornation, theft, indecent exposure, sex crimes, conspiracy to commit a crime, defrauding the government and illegal drug sales. Various factors, however, may cause an offense which is generally not regarded as constituting moral turpitude to be regarded as such. For example, a record of a number of convictions for simple assault would involve moral turpitude, whereas a single act would not.
If Bowers can be reversed, then Roe can be reversed. And so can Lawrence.
Scalia points that out in his dissent.
If Bush appoints pro-life justices, Lawrence will be the basis of reversing Roe. The irony would be delicious. I wish I could be sure Bush is going to appoint pro-life justices.
This is much more worse than using the argument of privacy. At least about the privacy many people who still want to adhere to the rules of morality, can agree that policing peoples bedrooms is not a good thing.
But when the issue is defined in the context of liberty - the vices (probably others are in the queue) acquire the ultimate protection - even to be publicly displayed, to be celebrated and promoted by the state. The liberty itself gets redefined as a licence.
Other quote from Kennedy's statement:
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government." ( AP, Sat, Jun 28, 2003, by Anne Gearan
"Full right to engage in their conduct" without limits of privacy?
We have successfully avoided since 1793 the disaster that befell France, because we have not accepted any method to determine the "general will" except the election of our representatives and latterly our senators.
Now, Anthony Kennedy and the rest of the Committee of Public Safety can discern the will of the people by consulting "references" to an "emerging awareness".
As I posted before, this is very bad, and it is bad irregardless of the result.
The Court also can't say that the Fourth Amendment's prohibition of undue search and seizure constitutes a right to abortion, but it did.
This is the sort of thing that kills us. We stand behind a clearly unconstitutional piece of legislation such as the DoMA, never giving full tought to the consequences, then, when a Court declares that it is clearly unconstitutional, we cry foul, and blame activist Judges instead of idiotic members of Congress.
You claim that this verbiage actually supports the DoMA:
"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."
You say that somewhere in there, the Constitution has granted the Federal government the ability to legislate an exception to the Full Faith and Credit Clause...it's not there.
The DoMA is a good example of the Federal government acting in excess of its power.
"The federal Constitution protects state sovereignty by limiting what the federal government may do, i.e., by defining the federal government's "enumerated powers." The Constitution does not delegate to the United States the power to create a categorical exception to the Full Faith and Credit Clause, thereby inviting states to disregard the official acts of other states. Rather, the Full Faith and Credit Clause empowers Congress to enact general laws and to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Simply stated then, the Full Faith and Credit Clause does not allow Congress to decree that a state action which is disfavored by Congress on substantive grounds may be disregarded by states that share the congressional viewpoint. Taken to its logical extreme, were Congress to have the power it deems it has by proposing the Defense of Marriage Act, Congress could next declare that one state need not recognize a no-fault divorce of a sister state, or need not recognize a punitive damages award in excess of $100,000. Obviously, Congress could not enact such legislation." -- Source.
This Act is in actuality an afront to State's rights.
Your California Proposition 22 is in direct conflict with the recently passed Domestic Partners Rights and Responsibility Act of 2003. It will be interesting to see how this Act, Proposition 22, the DoMA, and the 14th Amendment interact with one another in the huge legal mess you have headed your way.
The more Laws we enact to control the behavior of homosexuals, the more strenght we will give to their claim that homosexuals should received the strict scrutiny afforded all protected classes of citizens.
There are no laws that say that most motorcycle riders do not have to wear helmets, but some do. In each State, either all have to wear the helmet, or none do.
This law stated that most people could commit sodomy, but some could not.
Your herrings are starting to stink up the joint.
The whole point of the 9th is NOT to mention any specifically. Do you mean to imply that the 9th, by not specifically mentioning other rights, does no allow the people to retain ANY rights other than those specifically mentioned in the others? What rights do you see in the 9th then?
Funny, one who claims to be such a "conservative" condoning the Federal government's violations of the US Constitution.
Show me where in the Constitution the Congress is given power to legislate an exception to the Full Faith and Credit Clause.
More to the point, what the hell is the matter with Sandra Day O'Connor and Anthony Kennedy? These people were Reagan appointees, but they're writing stuff that sounds like they're channeling Wm. O. Douglas and Earl Warren.
I think it's code for, "You've all been overruled by the Fourth Estate." The quote is a direct reference to the media campaign against morality.
So what's your answer? Let the gays win? Let them take their pick of the schoolyard? Speak up, don't be shy -- you are noticeably not shy. So speak up, signify to us.
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