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.
And statutory behavior is the question here. Two men were found breaking a Texas law against sodomy when other circumstances required the forcible entering of their house by legal authorities.
You are suggesting that those states agreed to have all those laws overturned by the judicial branch of the federal government when they signed the constitution and the bill of rights.
They would never have agreed to live under that type of oligarchy.
These laws have only recently come under attack. The attack has been led by the ACLU and their leftist allies. Since they don't have a leg to stand on and could not get the job done via the proper legislative branch, they have recreated the intent of the original constitution, using the leftist, activist courts who want to rewrite the meanings and laws from the bench.
The population of each state that sent their elected officials to go to the constitution convention in 1787; who also gave consent for the bill of rights to become law for them to live under did not intend to live under a judicial kingship.
If someone would have said, "that bill of rights you are agreeing to put into law is to be used by judges to overthrow all your state morality laws, like your anti-sodomy laws", they never would have signed it in the first place.
Prostitutes - last time I checked, most prostitutes could already be found in-doors in their "massage parlors" and "escort services". They have been driven in-doors because the police arrest the ones found out of doors. Same for the drug trade - it is mostly inside now that the Police here in Philadelphia have tried the novel tactic of occupying the street corners and arresting the dealers. This should be the tactic of law-enforcement - drive the purveyors of vice in-doors to discreet locations where they may then be picked off one by one in sting operations. Exactly what is going on with affaciandos of child pornography.
As to guilt-by-association. Its not me painting you as one with the liberals. You did that by sticking up for one item of their multi-faceted cause of destroying our previous society. When you crawl in bed with these causes, you've got to expect what is coming.
The prime-mover behind the anti-affirmative action movement is not the KKK. On the other hand, the prime-mover behind the "repeal the sodomy laws" bandwagon is the usual coterie of liberal suspects (the Faggot-Rights groups, the ACLU, etc., etc. ad nauseum).
If I were advocating forcible segregation, you'd be right to tar me as being one with the KKK and the Aryan Nations on the prime demand of those groups, even if I otherwise had nothing to do with them.
I think you grasp this distinction, even if it is distasteful to you.
You are assuming that "rights" includes the ability to do things which are objectively wrong and against the natural law, like sodomy. None of the men who wrote the Bill of Rights would have put up with such childish drivel beign asserted. Perhaps you should review the penal laws then in force for homosexual acts?
I fear you have little understanding of what "rights" and "liberties" are. That makes you quite ill-equipped to try to teach others about them.
On the contrary, sex with children and homosexual acts are both despicable crimes which fill ordinary men and women with the utmost feelings of disgust and revulsion towards the perpatrators. That is why they are both illegal.
I'm sure they read the Tenth Amendment when they signed, too. Whatever happened to that?
State's rights is not only seen as racist cover, but a huge joke. The America of 1776 is dead and gone.
God specifically told Man to execute those found guilty of homosexual acts because of the dangers it presents to society (as if our own natural revulsion at the mention of the act was not enough to tell us where the law shoul be found). Sounds like God made it into an issue between "Government and Man" after all.
Because we aren't. The right to defend oneself is a natural right based on our existence as rational creatures. Similarly, natural law tells us of the innate evil of homosexuality, adultery and all the rest of the crimes you fellas want legal. 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?
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?
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