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Top Massachusetts court refuses to throw out anti-sodomy laws but limits enforcement
AP ^ | 2-21-02

Posted on 02/21/2002 12:36:24 PM PST by Oldeconomybuyer

Edited on 04/13/2004 2:39:43 AM PDT by Jim Robinson. [history]

BOSTON (AP) -- Massachusetts' highest court on Thursday upheld two anti-sodomy laws but limited enforcement to cases when specific sex acts occurred in public or weren't consensual.

Gay activists said the Supreme Judicial Court ruling clarified for the first time that anti-sodomy laws don't apply to private, consensual sex.


(Excerpt) Read more at sfgate.com ...


TOPICS: Culture/Society; News/Current Events
KEYWORDS: masslist
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Comment #81 Removed by Moderator

Gay activists had argued the laws violated freedom of expression and other constitutional rights

Yeah, last time I read the constitution it had a BIG section on allowing anal sex between men in public places. Doesn't it encourage it? (sarcasm off)

I think it's time for conservative groupd to pool sources in these fights. There are just too many. ANd they all come from the same one or two pro-homosexual groups.

82 posted on 02/22/2002 10:59:45 AM PST by 69ConvertibleFirebird
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To: good herb
I can't imagine that many, if any, of the Framers would have objected to state laws banning interacial marriage. Do you think such laws violate the federal consitution?

No.

83 posted on 02/22/2002 11:02:35 AM PST by counterrevolutionary
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Comment #84 Removed by Moderator

To: good herb
So if a state passes a law banning interacial marriage, you don't think anyone's rights would be violated?

I don't think that anyone's rights under the US Constitution would be violated.

See, I don't accept this weird idea that seems to have taken hold that the Constitution was intended to establish God's Justice on earth. The people, in fact, have a great deal of power to do injustice. That is part of what it means to live in a Republic. If the people cannot be trusted with that power, then republican government is a failure.

I also think that the fact that no one noticed this supposed general Constitutional right to privacy until seven Supreme Court justices said "Well, looky what we found in that there penumbra!" is pretty compelling evidence that it was never intended to exist.

85 posted on 02/22/2002 11:36:17 AM PST by counterrevolutionary
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To: counterrevolutionary
I don't think that anyone's rights under the US Constitution would be violated.

Then how do you think the 14th Amendment fits in with Constitutional jurisprudence, if a white man has the right to marry a white woman but a black man is denied that same right? How is that not a violation of "Equal Protection?"
86 posted on 02/22/2002 11:42:54 AM PST by BikerNYC
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To: xcon; jmj333
If two first cousins got married in a state where it was legal, then moved to a state where it was a crime(incest) for them to be married, could they be arrested?

Ask JMJ333. She has taken up the anti-incest cause lately.

87 posted on 02/22/2002 11:48:31 AM PST by Looking for Diogenes
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To: BikerNYC
If everyone is forbiden interracial marriages. then everyone is being treated equally (badly and unjustly, but equally).

I do, however, think that the "equal protection" argument is a better argument than the "unenumerated rights" argument.

88 posted on 02/22/2002 11:57:44 AM PST by counterrevolutionary
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To: Looking for Diogenes; xcon
All I want is a yes or no answer to post 46. I haven't gotten one yet--and it was posted last night.
89 posted on 02/22/2002 12:03:06 PM PST by JMJ333
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To: JMJ333
What is the relevance of the question? Is there anyone pushing for the legitimization of father-daughter sex? Is there an incest liberation league? No. It is just a rhetorical question.
90 posted on 02/22/2002 12:06:57 PM PST by Looking for Diogenes
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To: counterrevolutionary
If everyone is forbiden interracial marriages. then everyone is being treated equally (badly and unjustly, but equally).

Why is it necessary to look at it that way? You can just as easily say, "If white men, but not black men, have the right to marry white women, then white men and black men are not being treated equally."

I presume that, even under your interpretation, a law that allows white men to marry interracially, but does not extend the same right to black men, would be unconstitutional.
91 posted on 02/22/2002 12:15:45 PM PST by BikerNYC
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To: counterrevolutionary
I also think that the fact that no one noticed this supposed general Constitutional right to privacy until seven Supreme Court justices said "Well, looky what we found in that there penumbra!" is pretty compelling evidence that it was never intended to exist.

Thank Christ in Heaven most jurists disagree with you.

I've been following your posts on this thread. You're a dangerous, dangerous person.


92 posted on 02/22/2002 12:18:37 PM PST by Hemingway's Ghost
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To: Looking for Diogenes
In other words, you're not going to answer the hypothetical question I posed. My point was that homosexual advocates use the argument that their sexual behavior is legitimate, normal, and nodody's business because it is between two consenting adults. So what about incest? If incest between an adult father and daughter became the sexual flavor of the day--would you also say then that it is legitimate? You'll have to in order to remain consistant.
93 posted on 02/22/2002 12:25:08 PM PST by JMJ333
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To: BikerNYC
Why is it necessary to look at it that way? You can just as easily say, "If white men, but not black men, have the right to marry white women, then white men and black men are not being treated equally."

And if women can marry men, but men cannot marry men....

I presume that, even under your interpretation, a law that allows white men to marry interracially, but does not extend the same right to black men, would be unconstitutional.

Clearly, yes.

94 posted on 02/22/2002 12:25:43 PM PST by counterrevolutionary
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To: Hemingway's Ghost
You're a dangerous, dangerous person.

Because I trust the people with power?

Run for the hills!

95 posted on 02/22/2002 12:26:40 PM PST by counterrevolutionary
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To: JMJ333
In other words, you're not going to answer the hypothetical question I posed. My point was that homosexual advocates use the argument that their sexual behavior is legitimate, normal, and nodody's business because it is between two consenting adults. So what about incest? If incest between an adult father and daughter became the sexual flavor of the day--would you also say then that it is legitimate? You'll have to in order to remain consistant.

I'll grant that homosexual sex is "nobody's business [when] it is between two consenting adults", but "normal" has too many definitions to be used here without making it ambigious and "legitimate" strikes me as an opinion-based value-judgement -- I really can't think of how any sexual act, whether between a same-sex couple or an opposite sex couple could be consireded to be overall "legitimate" (or "illegitimate" for that mater)-- so I can't agree with that either.

Given what I do agree with -- that homosexual sex is "nobody's business [when] it is between two consenting adults" -- I would also agree that the same applies to incest.
96 posted on 02/22/2002 12:32:55 PM PST by Dimensio
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To: counterrevolutionary
And if women can marry men, but men cannot marry men....

You're changing the subject to avoid the hypothetical as given. You're interpretation is certainly one way to view the 14th Amendment, but I don't see it as the only interpretation or even a compelling one.

Moreover, why is "men" the defining class and not "white men," since, even a statute that allows only white men to interracially marry, is allowing all white men the same priviledge?
97 posted on 02/22/2002 12:35:28 PM PST by BikerNYC
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To: counterrevolutionary
Because I trust the people with power?

No, that merely makes you naive.

Your spirited argument in favor of allowing the government into places it doesn't belong, or even suggesting it might have a compelling interest in a case like this, makes you dangerous.


98 posted on 02/22/2002 12:38:06 PM PST by Hemingway's Ghost
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To: Dimensio
Given what I do agree with -- that homosexual sex is "nobody's business [when] it is between two consenting adults" -- I would also agree that the same applies to incest.

Speechless.

99 posted on 02/22/2002 12:49:34 PM PST by JMJ333
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To: Hemingway's Ghost
Your spirited argument in favor of allowing the government into places it doesn't belong, or even suggesting it might have a compelling interest in a case like this, makes you dangerous.

You have obviously been "following my posts" from a distance and with one eye closed, because you apparently missed the one where I said that I oppose anti-sodomy laws. I simply think the proper place to decide the question is in the legislature, among the people's representatives, not in court, before our black-robed Masters.

Tell, me, were Potter Stewart and Hugo Black "dangerous, dangerous people"? They were the Justices who dissented in Griswold.

Black:

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is, of course, that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous....While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137 , and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination -- a power which was specifically denied to federal courts by the convention that framed the Constitution....

"The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their "personal preferences," made the statement, with which I fully agree, that:

For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.
And Stewart:
Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do....

The Ninth Amendment, like its companion, the Tenth, which this Court held "states but a truism that all is retained which has not been surrendered," United States v. Darby, 312 U.S. 100 , 124 , was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder.

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

If you want to disagree with me (and Stewart and Black), fine. Better men than you have disagreed with me, and Supreme Court Justices have been known to be wrong. But don't pretend that I am somehow fashioning a radical and "dangerous" new theory of constitutional jurisprudence simply because I believe that the legislative power--even the power to do things of which I disapprove--should be in the hands of the people.

100 posted on 02/22/2002 12:53:08 PM PST by counterrevolutionary
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