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.
These are covered by 'Statatory Rape' and 'Animal Cruelty' laws. This article concerns 'Consenting Adults'.
I couldn't say it any better.
The majority of us have chosen not to live in a world with prostitutes on every corner and controlled drugs in our pharmacies.
It has been the unbending tactic of our socialist anti-Christian enemies to subvert majority rule through the courts and bring about the total corruption of society hand-in-hand with their corrupted judges. You are joining in with this brigade that brought us abortion on demand, instruction in fisting in public school "Health Class", the forbidding of public displays of religion, and cruel and unusual leniency towards vicious criminals and deviates.
The men on Stone Mountain would not join you in this fight.
This is certainly news to all the Organized Crime gangs that existed prior to 1920. As to drug use never being higher - I doubt it. Can you provide some evidence of that?
OK, I'll void your vote, and bump ya 4 votes from my voting aged kids that feel the spread of this amoral dangerous deathstyle has had it's 15 minutes and 40 billion dollars already.
Aparently their rationalizing is none to good, since reason is meant to be used to choose what is right, not to salve our conscience over engaging in crimes.
I can rationalize commiting bodily harm on those who support legalized immorality. Will you support my petition to the Supreme Court to allow it?
The wrecking of the common American moral perspective by liberals was done with definite cause and is an enormous crime for which they cannot be forgiven. The restoration, should it ever occur, will require the suspending of all mercy towards these people. The liberal choice - "live in a society full of immorality - just don't do it yourself if you object" is no choice at all really.
Your fighting a losing battle if you think you can defeat this 'amoral dangerous death style' by passing laws to stop it.
You defeat it by educating your children on moral behavior and good common sense, as I believe I have. I am not advocating the behavior, I just feel this is something between God and Man and not between the Government and Man.
Sounds like something from a certain little red book....
Really, you must try harder. This is too easy!
"Poor Lot in the Old Testament" is about as lousy an example of morals as one can get. He offered his daughters "who had not known men" to the men of Sodom "to do with as you wish".
I'd call him a scumbag, but that'd be several steps up.
BWAAAAHAHAHAHAHA!!! Have you been living in a cave next to Osama's bones?
How about the tax system (theft)? How about Waco (murder)? How about routine violations of the Constitution by public servants sworn to uphold it (bearing of false witness)?
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.