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

[lentulusgracchus]

That has nothing to do with the issue at hand.
That is also public, not private behavior.

You're quibbling because you don't have an answer. The back yard analogy is very close to what actually happened in the Lawrence case.

[lentulusgracchus]

Massive non-sequitur and hairsplitting. You'll have to do better than that. Homosexual sodomy is ontological sodomy. Het sodomy is also ontological sodomy. The identity of either as sodomy is not contingent on police reaction to the act, nor to its status in law.

You're starting to drool.

[aristeides]

Linda Greenhouse in the New York Times agrees with me that the Supreme Court vacated the Kansas court's conviction of Limon and that it told the Kansas court to reconsider both the conviction and the sentence in light of Lawrence. Justices Extend Decision on Gay Rights and Equality.

[AntiGuv]

Linda Greenhouse is wrong. Period. Which partly explains why she's a journalist and not a lawyer. As this Washington Post article makes clear:

Gay Rights Ruling Affects Kan. Case

The Supreme Court announced yesterday the first ripple effect of its landmark decision on gay rights, ordering a Kansas court to reconsider its approval of a 17-year sentence meted out to an 18-year-old man for having consensual sex with a 14-year-old boy.

Without comment or published dissent, the court vacated the Kansas Court of Appeals' ruling last year that Matthew Limon's sentence was constitutional even though the same conduct between two persons of different sexes would have received a far lighter penalty under Kansas law.

In fact, as that excerpt makes clear, there was never even a slightest question of vacating the original conviction, because the Kansas ruling under appeal itself only dealt with the constitutionality of the sentence disparity. To reiterate yet again, the conviction has not been vacated no matter how many ways you figure out to suggest otherwise.

[Sabertooth]

Show me where in the Constitution the Congress is given power to legislate an exception to the Full Faith and Credit Clause.

Again? It's right there in Section 1.

"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."

What this means is that when the public acts, records, and judicial proceedings of the states are in conflict, Congress gets to decide the matter. When states diverge on how contracts are applied, Congress gets to decide the matter. Marriage is a contract.

Upon this basis, Congress enacted the Defense of Marriage Act, so that one state (Hawaii, in this case), can't pass a marriage law that overturns the marriage laws in the other 49 states.

There is no Constitutional time bomb, this is exactly how the Founders intended the Constitution to work.

You've posted so much that is factually wrong on this thread, you might want to consider taking a break. Error is not a good foundation for sound reasoning. You didn't understand the current state of California consenting adult law, nor the origins of the Defense of Marriage Act, nor even when Al Gore was in the Senate or the identity of the Vice President during the Clinton Administration.

You don't understand the application of Article IV, Section 1 to the DMA. You don't understand that the SCOTUS didn't strike down the Texas sodomy law on the basis of the right of privacy. All you know is that it came up with a decision supporting homosexual sodomy that feels right to you, so you're scrambling fruitlessly to cobble together some justification for their reinvention of the judicial wheel.

In doing so, you recapitulate their straw-clutching error, making things up as you go along, bouncing from one logical box to another and posting things that aren't true, never considering the possibility that the world isn't going to be the way you want it to be, simply because that's the way you think you want it.

Untethered from tradition, common sense and the Constitution, you trample all three in pursuit of a predetermined outcome. When the destructiveness is observed, you take the position, incredibly, that tradition, common sense and the Constitution are driving us to a Constitutional crisis. To the extent we're in such a crisis, it's due to the anti-Constitutional rulings of activist judges such as you've been cheering these past few days.

Like you, the Supreme Court determined an outcome that pleased them. Then they "discovered" a new "right" to the "expression of one's essential humanity" in order to foist their agenda on the nation. Not a single person in this forum, nor anywhere in the country, has any clear idea as to what a right to the expression of one's essential humanity means, nor what its limits might possibly be. Its vagary is absolutely opaque. Doesn't matter though, because this is a moment for the self-congratulation of the self-anointed "enlightened."

Like you, the Supreme Court is flinging crap without consideration of its validity or consequences. In a final, fitting bit of convergence, after your arguments have unraveled, you imagine a Constitutional crisis based on your relentless misunderstandings and errors, and attempt to use that to bluff your point, when if fact Constitutional crises are arising from the willingness of the SCOTUS not to adhere to the Constitution, most recently to justify their decision to strike down the Texas sodomy law

You applaud the real Constitutional crisis, because it suits you to do so.

[Eastbound]

Well, whether it's about sex or or purple jelly beans, laws are for the 'lawless' and were given that some human activities be viewed as 'exceedingly sinful' (destructive).

As children we don't have the capacity to understand the wisdom of some dictates, but we are taught to obey them for the sake of learning the act of obedience. In doing so, we become ingrained with the idea that there is an external authority we are accountable to -- our parents.

Playing with matches is dangerous to mortal existence, but it's difficult for a child to draw that conclusion and assign a value to it. As we advance in age and wisdom, we realize the dictates we followed were designed to promote health, longevity, preservation of property, and peaceful existence.

As spiritual children, we are not yet able to draw a conclusion or assign values to many divine laws. Are we imperiling something of greater value than our human existence by not following them?

[WOSG]

"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."

Yes there are. States require you to wear a helmet if the two wheeled vehicle is motorized, but not if it is 4 wheeled, or if it is non-motorized. We discriminate against motorcycle riders and put them under greater legal burdens than other vehicle riders.

Discriminatory laws covering victimless crimes.

Same with laws that make crack cocaine worse than same amout of heroin. or for that matter, alcohol.

This is a discriminatory distinction not different from you trying to insist heterosexual oral sex has to be grouped into homosexual sodomy as an activity.

It's your red herrings that are indeed stinky. State law does what you complain of ALL THE TIME.
The fact that I disapprove of all drug use doesnt mean we must outlaw all drugs equally or no drugs at all.


"A foolish consistency is the hobgoblin of little minds."
- Emerson

[WOSG]

"When states diverge on how contracts are applied, Congress gets to decide the matter. Marriage is a contract.

Upon this basis, Congress enacted the Defense of Marriage Act, so that one state (Hawaii, in this case), can't pass a marriage law that overturns the marriage laws in the other 49 states. There is no Constitutional time bomb, this is exactly how the Founders intended the Constitution to work."

Dittos.

[Luis Gonzalez]

"We discriminate against motorcycle riders and put them under greater legal burdens than other vehicle riders."

There are financial remnifications thatgo along with the greater risk of injury for motorcycle riders, those financial concerns impact all of society.

"States require you to wear a helmet if the two wheeled vehicle is motorized, but not if it is 4 wheeled, or if it is non-motorized."

But the law is consistent, all two-wheeled riders have to wear a helmet, all four-wheeled do not...are you being purposedly dense, or do you just no0t want to grasp the message that just hot you squarely in the face...make laws consistent tp all citizens.

"Discriminatory laws covering victimless crimes."

Motorcycle accidents raise the cost of insurance for all, not victimless.

"This is a discriminatory distinction not different from you trying to insist heterosexual oral sex has to be grouped into homosexual sodomy as an activity."

I did not, sodomy by definition includes oral sex, no distinction between the gender arragement of the coupling, you are just defending your "privilege" to commit sodomy while simultaneously denying others the same "privilege".

Little minds indeed, you just defended sodomy.

[Luis Gonzalez]

Hey Saber, can't you read, where does it give the Congress the right to legislate an exemption to the Full Faith and Credit Clause.

[aristeides]

David Frum's column, JUN. 27, 2003: SODOMY IN TEXAS , explains why the effect of Lawrence's overruling of Bowers is to render homosexuals a constitutionally protected group, under Romer v. Evans. Scary.

[tdadams]

There's a distinct quality about male homosexuality that gay men tend to be attracted to young, good-looking guys.

Let's turn this around a bit and say:

"There's a distinct quality about male heterosexuals that they tend to be attracted to young, good-looking women."

And you would somehow find this strange?

[tdadams]

You suggest that Lawrence may be worse than Roe, but I believe it provides the key to unlocking Roe and other decisions like it that are eroding the social structure of America.

If you read Scalia's dissent, it seems he was trying to make that case. He gave some criticism to the Lawrence decision, but he spent an equal amount of time laying the groundwork for how this could be used to overturn Roe.

[tdadams]

You are right, the Republicans enacted this unconstitutional, knee-jerk time bomb.

The problem conservatives are facing is that all the legal and judicial wranglings that they embraced out of expediency are now coming full circle and going against them.

They are understandably unhappy, but most will neither recognize nor admit the hypocrisy of it. They're simply cheering for their team.

When the Supreme Court went against states rights in ruling against medical marijuana and assisted suicide, conservatives saw it as wise and good, the constitutional breach be damned. Nary a peep was heard about an activist court from conservatives.

Now with this decision, there are accusations of an activist court and conservatives are condemning it in all sorts of colorful language.

There is no consistency or reason to these reactions. People are simply cheering for their side. I just wish they'd admit it rather than pretend to be standing on some principle.

[aristeides]

If homosexuals are indeed a protected class, then all sorts of things follow. Look at how other protected classes like blacks have fared in the courts. The case becomes strong that the Defense of Marriage Act is unconstitutional, and recognition of gay marriage is mandatory. Kennedy may have denied this in his Lawrence. But we saw in Limon how much his similar assurance about sex with minors was worth.

[tdadams]

While I agree the government should not be in our bedrooms, I don't like this decision at all.

And that's basically what all the handwringing comes down to. A lot of conservatives would agree that the government has no place in your bedroom, but they want to keep gays in their place also. Those two desires are dischordant, or at least hypocritical.

As someone posted to me yesterday, "Regardless of the legal correctness..." In other words, most people know the sodomy statute was wrong, but how else to keep them gay people from scaring the horses. Conservatives are distraught over the cultural implications of this decision.

So which is worse? To live with bad law or to allow too much liberty?

[DannyTN]

"Constitutional crises are arising from the willingness of the SCOTUS not to adhere to the Constitution"

It's no longer SCOTUS...

States have been rendered irrelevant and should now be called Mandates (conquered territories) instead of States.

The Supreme court is no longer merely a court since it is now creating law and usurping states rights instead of interpreting law.

So yes that makes it "Supreme Court, Ruler of the United Mandates......

Yes, it's now.....

SCROTUM.

[tdadams]

The back yard analogy is very close to what actually happened in the Lawrence case.

It may be "very close" but the small distinction that makes them different is where your analogy breaks down. The back yard is in public view, the bedroom is not.

[tdadams]

After reading that elaborate sophsitry, I will laugh any time in the future I hear you complaining about the Supreme Court finding new law in the penumbra of the Constitution.

[Bryan]

Let's turn this around a bit and say: "There's a distinct quality about male heterosexuals that they tend to be attracted to young, good-looking women." And you would somehow find this strange?

Don't you agree that an 18-year-old or 21-year-old man having sexual relations with a 15-year-old (of either gender) would be improper, and should be illegal?