Posted on 03/26/2003 9:28:34 AM PST by Stone Mountain
More than sodomy
The Supreme Court is hearing a case challenging a Texas law against "homosexual conduct," but the real issue is whether the government can regulate private lives in the first place.
March 26, 2003 | Conservatives and liberals alike have tended to avoid public debate about Lawrence vs. Texas, a case now before the U.S. Supreme Court that challenges a Texas law criminalizing "homosexual conduct" -- that is, sex between consenting adults of the same gender. The law is fundamentally un-American, but instead of opposition spanning the political spectrum, there have been the familiar unprincipled divisions along partisan lines.
Ostensibly, the question in the case will be whether the Constitution protects a "right" to homosexual conduct. But superficial concern obscures a more fundamental question too often ignored in constitutional cases: Does the government have the power to regulate people's private lives in the first place?
This difference is not just a matter of semantics. The Declaration of Independence, which establishes the ethical foundation of American government, states that government exists to secure broad rights to "life, liberty, and the pursuit of happiness" and gains its "just powers" from the "consent of the governed." The government, in other words, must establish its authority to act; individuals do not.
Modern constitutional jurisprudence turns this principle on its head. As the Texas court saw it, the question was whether Mr. Lawrence could establish a "fundamental" right to homosexual sodomy. Since no such right has ever been recognized, the court upheld the law. Had the court sought to make a ruling consistent with America's founding principles, it would have required the state to justify its decision to outlaw the conduct in this case.
Lawrence and his partner are consenting adults who were engaged in private conduct within the confines of Lawrence's home. They were harming no one. While it is true that laws against sodomy have a long history in this country, so does the principle that governmental power is inherently limited. The touchstone of that limitation is harm to some identifiable third party. Since Texas can show no such harm -- indeed, it didn't even try to do so -- it has no power to enter this sphere of individual conduct.
Conservatives often suggest that the states can pass laws that express the moral sentiments of a majority of the community and that the courts have no authority to intervene in those democratic decisions. But all laws are passed by democratic processes and can be said to express the moral sentiments of the community. Texas claims, in essence, that laws do not need any real justification. That is a claim that everyone -- conservatives included -- should find dangerous.
Conservatives, especially, ought to be wary of casting their lot with the states on this issue. If the states can ban purely private conduct between consenting adults, what is to keep them from banning home schooling, for instance, or instituting mandatory preschool, or requiring parents to follow certain nutritional guidelines for their children? Conservatives who condone a process that leads us down this path need to start asking themselves what exactly it is they are trying to conserve.
Unfortunately, the left's approach is no better. Where conservatives extol the virtues of the state's governmental power when it comes to certain moral or lifestyle issues, the left extols the virtues of governmental power when it comes to regulations of property and economic affairs. Both sides love governmental power when it suits their immediate agenda, but both ought to realize that this approach is only as good as one's ability to control a particular legislature. The left ought to recognize that it cannot pick and choose which aspects of individual liberty are beyond governmental power. Privacy is worth very little if one has no property on which to practice it.
America is the only country founded on the principles of individual rights and limited government. Governmental power must be limited if we are to live in a free society. Until everyone, of every political persuasion, takes this principle to heart, cases such as Lawrence vs. Texas will amount to little more than political battles over one more "right," while the war over the proper role of government in our lives rages on.
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About the writer Dana Berliner is a lawyer with the Washington, D.C.-based Institute for Justice.
Steve Simpson is a lawyer with the Washington, D.C.-based Institute for Justice.
I agree, but if you concede the government the power to make one a crime, when the dems are in they will use that power to make the others a crime.
So9
Our constitution republic is not dead; the law upon which it is based is not to be reinvented by the judicial branch.
If you do not agree to the intent of the law we received and the method of changing the constitution (the amendment process), then it does not seem valid for you to use the constitution as the basis for your argument.
If the constitution does not rule over the judge's personal bias, the judge becomes king.
Judges were never intended to be creators of our law, due to the intended seperation of powers that is the role of the legislative branch.
Got a cite for that? Homosexualilty exists in the animal kingdom, in nature. Is nature in violation of natural law?
Why can't the libertines see that no significant number of people has ever wanted to live in the fantasy land society they wish to create?
Significant number of people is not the determinant between right and wrong. And who are you to tell someone else what kind of society they should wish to create?
Last thoguht - when we legalise drugs, what will we then do about the plague of driving under the influence of these substances that will result?
Driving drunk is far more dangerous than driving stoned.
Once we become a theocracy like Afghanistan was, be sure to bring that up.
So9
I do not see how your approach applies in any way as a legal foundation for your viewpoint.
We are speaking of a legal issue here since judges are supposed to be subject to the intent of the constitutional laws.
If the judges disagree they need to get an amendment to which they can agree.
Yeah, I would much rather hang out with the bible-thumping, flag-waving, God-is-an-American throng who believe that G-d sanctions the invasion and bombing of his other children, good luck with your cork-screw morality.
No, I said it's a privacy issue because it doesn't involve a third party, outside your bedroom. If it doesn't involve me or anyone else outside your bedroom, what goes on inside your bedroom between consenting adults is your personal, private business.
Once we clear up your misunderstanding of what I actually said, the rest of your post pretty much falls apart on its own.
Can't say for sure. Presumed witches and the like get killed in overseas locales all the time by enraged populaces. Just watch your news for a while.
Since you are trying to be dumb and cute ... homosexuality is against the natural law because it is against the obviously intended natural use of the sexual organs, which was for sex between a man and a woman. That is why it is termed an unnatural or deviate offense.
Driving drunk is far more dangerous than driving stoned.
I offer you the example of Railway Engineer Ricky Gates and the fatal Chase, Maryland, Amtrak wreck he cased when he got himself stoend on duty, disabled the safety devices on his freight locomotive, and proceeded to operate it through several stop signals and switches into the path of an Amtrak train travelling 128 mph. Fortunately, the first car on the train was unoccupied because it was being held out for boarding passengers in Philadelphia. The Amtrak engineer and 15 people in the second car were killed instantly upon impact.
And having proved your status as an ignoramous and a dope advoate, I end the discussion with you.
The notion that you can't outlaw something if Christianity says its wrong, and that it is Taliban like "Theocracy" to do so is tiresome stupidity. If public laws on human acts are not to be based upon natural law and religious morality, upon what basis do you propose to ground them? The whims of a liberal judiciary?
So theocracy is okay as long as it's your kind of theocracy? It's the tyranny of the majority. We are not merely governed by what can get the support of a majority of elected representatives. When that majority supports something which it purports to be "based on commonly accepted principles of morality", but not on your personal morality, enjoy those good times.
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