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

[toothless]

Shouldn't you be out licking some jackboots?

[cherrycapital]

Do you think requiring equal sentences for homosexual and heterosexual offenses is a bad outcome?

[Arkinsaw]

I have no problem with having unelected people in black robes legislate as long as they are protecting individual freedom from the state.

It is not their duty to legislate either for our own good or for tyranny. They are not put there to legislate, only the legislative branch has that power.

I am surprised that someone here has no problem with a branch of government taking on the powers of another branch as long as its for our own good. Thats a very liberal philosophy.

I am a strong advocate of individual liberty, almost to the point of libertarianism sometimes. But I am also a strong advocate of division of power and checks and balances. I'm not for "outcome based" government.

[ijcr]

One of Thomas Jefferson's warnings about
government taking away our rights went as follows:

". . . the Federal Judiciary; an irresponsible body,
working like gravity by night and by day, gaining a
little to-day and a little to-morrow, and advancing
its motionless steps like a thief, over the field of
jurisdiction, until all shall be usurped from the States,
and the government of all be controlled into one."

Because of our own prejudiced views, we did not listen.

[Kevin Curry]

You're picking a very shaky example to make your point.

LOL! A warning about "shaky examples" from a defender of the jury-rigged Lawrence decision.

[cherrycapital]

But to say that private sexual transactions between consenting adults may be criminalized, is to ignore the 9th Amendment and give it no effect whatsoever.

[tdadams]

A warning about "shaky examples" from a defender of the jury-rigged Lawrence decision.

Are you still ranting about the Gore case?

[aristeides]

You're picking a very shaky example to make your point.

It just happens to be the first use the Supreme Court has made of its Lawrence decision, the day after Kennedy said in Lawrence that that decision was just about criminal laws against sex between consenting adults, and did not concern sex with minors or prostitution or gay marriage.

[dogbyte12]

Let me be very clear for you and everybody else here. I am including all factors here. In Kansas, with a prior as a juvenile, and as an 18 year old man, you are sentenced to 15 months in prison for having sex with a 14 year old girl. With a prior as a juvenile, and as an 18 year old man, you are sentenced to 17 years in jail for having sex with a 14 year old boy.

Let there be no confusion here. The supreme court said the punishment must be the same. They in no way argued about the length a state can impose, only that the punishment must be equal.

[aristeides]

Do you think requiring equal sentences for homosexual and heterosexual offenses is a bad outcome?

You're very outcome-oriented, aren't you? I think decreeing that it is constitutionally required is a bad outcome.

[bart99]

No one responded earlier, so I'll try again.

Does this ruling in effect make prostitution (among adults) legal?

[cherrycapital]

As has been pointed out, the issue in Limon wasn't the legality of statutory rape laws, but the legality of egregious discrimination against homosexual offenders v. heterosexual offenders. What is it about the outcome in Limon that you find objectionable?

[TheDon]

Agreed. Roe is hard to top. Lawrence is more like a Roe Jr. or Dredd Scott Jr.

[tdadams]

I know the case and I don't disagree. What I disagree with is you being intellectually dishonest and omitting some very pertinent facts about that case. Very clearly you're not interested in furthering an honest discussion, you're interested in demogoguery.

[tahiti]

"However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut"

You are exactly correct.

It is very gratifying to me that there is at least one other "Freeper" who understands and appreciates the 9th amendment.

I am sure that I post at least once a week a reference to the 9th amendment as our ultimate defense against the federal tyranny of the misapplied commerce clause and tyranny of those who believe in majority rule.

If you have in fact read Justice Goldberg's concurring opinion in Griswold v. Connecticut, it is my opinion that Justice Goldberg began to scare himself with the real implication and power of the individual liberty residing and emanating from the implication of the 9th amendment and if applied correctly, the 9th amendment could begin to dismantle the entire federal regulatory system, such as, for example, using the 9th amendment as the constitutional basis for overturning laws enacted by the federal Congress forcing the states to enact seat belt laws to retain federal highway money, when he stated,

"I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."

Justice Goldberg diminishes the power of the 9th amendment by using the phrase "...fundamental rights exist..."

What the hell are "fundamental rights?" More litigation, more fighting and arguing to try and determine that definition.

Similar to "compelling state interest."

[cherrycapital]

It is constitutionally require under the equal protection clause. That isn't even a substantive due process issue; I think the Limon decision would've been the same even without Lawrence, since only O'Connor hinged Lawrence on the equal protection argument.

[aristeides]

That may be what the Supreme Court's action in Limon yesterday implied, but they certainly did not come out and say it. Quote me the words.

And that does nothing to alter the fact that yesterday, the day after Kennedy said in Lawrence that that case had nothing to do with sex with minors, the Supreme Court implied a good deal more clearly that Lawrence affects the outcome of cases involving sex with minors. (Something Kennedy and the other members of the majority must have known when he was writing his Lawrence opinion.)

[Van Jenerette]

Social rules and criminal laws are not the same thing.

This entirely correct! The problem now is that many people make the assumption that if something is NOT CRIMINAL then it is NOT IMMORAL and therefore should become LEGAL and by natural extension becomes MORAL.

This is a classic case of flawed logic that is used too often.

At the end of the day - most of ours laws are based on a MORAL vrs. IMMORAL code that is rooted in religious beliefs. If laws and rights are not based in a large part on religion - which results in an unquestionable legitimacy, all laws and rights would flow from only the opinion of only the most powerful.

[tdadams]

It is very gratifying to me that there is at least one other "Freeper" who understands and appreciates the 9th amendment.

There are many, but sadly, not nearly enough.

[PMCarey]

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.

Not exactly true. The court reduced the sentence since the penalty for homosexual sex with a minor was stricter than heterosexual sex with a minor. The ACLU was arguing that the penalty for both actions must be the same.