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.
- - - - - - - - - - - -
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.
What does this have to do with dictating a person's sex life? What you put forth as an example falls into the criminal action of "Practicing Medicine Without a License".
So what is your answer, a law to prevent what exactly?
First we passed laws to prevent people from smoking pot, now we have a war on drugs and guess what, pot is still being smoked.
The only sure way to stop people from smoking pot you know, is to kill them, same thing goes with sex.
The question, therefore, is not one of privacy. The question is one of sexual behavior. In the end, the question must turn on whether one has a fundamental right to engage in sodomy. If the Court says that there is such a right, it must also recognize a right to engage in bestiality or even polygamy.
The correct course of action here is to STOP SPENDING THE MONEY, NOT give the government more power.
Again, you are throwing abortion into an arguement, as a point. How does govermental mandating of sexual behavior apply to abortion? It doesn't. As for the woman's right ... who pays for her choice? Who's body is in (albeit limited, but still definitive) risk due to pregnancy? Who pays the bills for the child, who raises the child. Who assumes responsibility for the child? See my tagline for additional reasoning. If you are willing to pay for the tens/hundreds/thousands/millions of unwanted children, sign up.
Sure it is. Both of your examples involve third parties, whereas what goes on in the bedroom only involves those directly participating.
Your argument does not hold water, how would the court ever determine if an animal gave consent to bestiality? But yes, I do believe the government has no business outlawing polygamy, it is just none of their business.
Private behavior did not have public consequences until uncle sugar started subsidising stupid choices. It was a little before my time, but I'm told that there WAS a time in the U.S. when a person had to live with the consequences of their own stupid decisions and everyone else was not obligated to bail them out of it. If stupidity actually hurt the stupid, there may very well be a lot less of it.
Why not sex with or between minors or with animals in private too? Nobody is being "harmed".
From what little book of law did you pick this one out of? I have every right and am breaking no law when I engage in most immorality, why does sexual immorality count? Better stick with the law and quit making it up as you go!
Eggs-ackly!!!!!
A bad ruling here also endangers laws in those areas, as well as for statutory rape and adultery.
If you believe that the government has not business legalizing polygamy, please indicate why?
Oh, I see. The patriots died at Bunker Hill to give perverts the right to have intercourse with sheep and mormon wackos the right to marry teenagers like Elizabth Smart.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.