Freepers In Support Of The Supreme Court

Vanity | 06/28/03 | shred

[shred]

I think there are many Freepers who are tired of this constant bashing of the Supreme Court for Lawrence v. Texas. I think they did a great job and stuck a knife in the heart of big government.

Individual liberty is at the heart of what conservatism is all about - the individual having primacy over the state. It disturbs me that there are so many who wanted to see the state prevail in its desire to regulate private, individual freedoms.

I say, good job, to a consistent, conservative SC! You did exactly what you're supposed to be doing.

[Sabertooth]

those that claim this opens the door to same-sex marriage, incest and bestiality are completely wrong in my estimation.

From Scalia's dissent to Lawrence...

A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 10. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (" 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life' "): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.

< -snip- >

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion.      

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

With the precedents now established by Lawrence, and a SCOTUS feeling free to to pluck rationalizations from the swirling ether that is the "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," it's hard to see how the legal door that's long been closed to same-sex marriage and any other traditionally immoral form of sexual expressionbetween adults isn't blown off its hinges and carried away in the cyclone.

[Sabertooth]

Anal intercourse rape is more likely to spread disease (including the contracting of AIDS) than vaginal rape. Just a thought.

A sidebar: Male victims of anal intercourse rape are more likely to retransmit HIV than female victims.

Not sure that ought to affect sentencing, just clarifying a medical fact.

[AntiGuv]

No, I don't. Lawrence applies rational basis review, not an intermediate scrutiny standard. Your hypothetical Kansas defense may or may not pass rational basis review; that will depend on whether it provides any finding of fact to support its rational basis....

[AntiGuv]

With the precedents now established by Lawrence, and a SCOTUS feeling free to to pluck rationalizations from the swirling ether that is the "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," it's hard to see how the legal door that's long been closed to same-sex marriage and any other traditionally immoral form of sexual expression between adults isn't blown off its hinges and carried away in the cyclone.

That would still have no basis in Lawrence, but rather on whatever rationale those hypothetical justices would apply. If your scenario comes to pass, then those justices would rule in favor of same-sex marriage whether or not Lawrence existed.

The fact of the matter is that same-sex marriage will come in one of two ways [assuming it comes via the SCOTUS]: (1) as an Equal Protection judgment; (2) as a Full Faith & Credit judgment (assuming at least one state legalizes, first). Most likely the latter. Lawrence did neither, nor did Lawrence provide a precedent to either, nor was Lawrence any sort of necessary prelude to same-sex marriage...

[Torie]

Yup, SCOTUS has a lot of tools, but they now have a third one. The puff line which was in Casey, quoted by Kennedy, and requoted by Scalia, and highlighted by Saber, is buttressed in the actual holding which uses the words, "The State cannot demean their existence ... " Denial of marriage is a demeaning of the existence of gays, and their lifestyle, and as citizens. Isn't it?

[AntiGuv]

Denial of women from equivalent roles in the military is "demeaning to their existence" as well, however even an intermediate standard of review does not require the strict standard of review which Scalia pretends to exist here....

In other words, unless and until there is at least some intermediate standard of review applied to gays, this discussion is moot. In the event that this comes into existence - i.e. an Equal Protection ruling that creates a "suspect class" - then the State will have to defend its prohibition of same-sex marriage under that standard.

Even then, the State may very well succeed in doing so.

[Sci Fi Guy]

So unless we amended the constitution in the last 18 years, one of these two decisions has to unconstitutional.

Neither of them was "unconstituntional." It is the job of the Supreme Court to interpret the Constitution. By definition, their interpretation is correct, as the Constitution grants them that authority.

When you have phrases like "due process" in the docuement, you are going to have humans interpreting what that means. There really isn't a well defined meaning for many of these Constitutional phrases.

Your idea that the Constitution is some perfectly clear inerrant document is naive. People on this very forum, kissing cousin conservatives, disagree on its meaning.

Sigh, I'm having a little trouble believing that you are serious. But I'll play along...

1. I think that you are confusing their authority with their duty. Their authority means that their rulings become the law of the land. Their duty is to interpret the law and the constitution. Just because they made a ruling does not mean that they fulfilled their duty. The word interpret does not mean that the court is suppose to read into the constitution whatever they want. The constitution does not contain a right to privacy. It is something the court created in order to exceed their authority.

2. The fact that people disagree is nothing new. People are ignorant, people are prejudiced. So what, this is not a matter of opinion. Words have meanings and context. The constitution is not some mysterious oracle that rewrites itself every few years. The fact of the matter is that for a couple of centuries now states have had the right to outlaw behavior deemed harmful to the community. The supreme court affirmed this right just 18 years ago. This is not something new. They've already decided what the constitution said on the matter. Now they reversed themselves. Aside from public opinion (a non-factor), what changed??

3. I've never held that the constitution is inerrant. We have the Amendment process in order fix and update the constitution as we need. And even if the constitution is not perfect, or if a law is bad, so what! It's not the job of the Supreme Court to fix the constitution or rewrite bad law. The court exists to uphold the constitution of the US. Their job is to determine if a law is constitutional.

4. You are holding what the liberals' call the living constitution position.

5. You can have the last word, I'm growing tired of this topic. I'll just "interpret" any response you might make as agreeing with me 100 percent.

[Not Fooled]

I was trying to illustrate that the whole issue of right to privacy and doing things free from government in your own home can boil down to "having fun" in many instances. I don't know if Dan got the point.

[Torie]

Actually, the demeaning of the existence of any group lacks even rational basis, so if barring women from the military is found demeaning to their existence, then it is barred. One can differ as to what is demeaning and what is not vis a vis given class no doubt. It is just one of those value thingies. You go to your church, and I go to mine, and Saber to a third, and Kevin Curry to a fourth, and there you have it. I want to be on SCOTUS.

[AntiGuv]

I want to be on SCOTUS.

Me too, Torie. Me too....

[dogbyte12]

Anal intercourse rape is more likely to spread disease (including the contracting of AIDS) than vaginal rape. Just a thought.

Let's be clear here though on what Kansas is though. Is there a disparity based on whose anus it is to be blunt. If a female is sodomized by a male, does the male get the same sentence as if the same act was committed upon a male.

I think alot of the honest confusion here, is the confusion on what sodomy means in what area. It has been defined to include anal sex, oral sex, and masturbation. Some people include 1, 2 or 3 in their definitions.

I am trying to do an apples to apples evaluation here. Let's toss vaginal sex out the window. Texas tossed heterosexual sodomy out the window and we know where that got them.

Is the same act, punished differently in Kansas or not? There is an argument to be made if in Kansas, anal sex on a girl is punished the same as on a boy, but vaginal sex is a different sentence, but from what I have read, there is a disparity based on the gender of the victim, not just the sexual act. Please anybody clarify if you know differently.

[AntiGuv]

Just so the two of you are aware, the first problem in this exchange is that the Kansas 'Romeo & Juliet' sentencing disparity only applies to oral sex....

[dogbyte12]

Am I clear here? If you are a 18 year old male and you receive oral sex from a 14 year old girl you get 15 months, but from a 14 year old boy 17 years?

On it's face then, it is unconstitutional.

[Torie]

I am not sure if the Kansas law distinguishes based on sodomy or on homo versus hetero. If the former (than unless one calls oral sex rape and sodomy), then there would seem to be a rational basis. If it is based on homo versus hetero, than one would be left with just Saber's point, that the infected male victim is more likely to spread his infection, than a female victim, and that gets a bit attenuated.

[Sabertooth]

That would still have no basis in Lawrence, but rather on whatever rationale those hypothetical justices would apply. If your scenario comes to pass, then those justices would rule in favor of same-sex marriage whether or not Lawrence existed.

The fact of the matter is that same-sex marriage will come in one of two ways [assuming it comes via the SCOTUS]: (1) as an Equal Protection judgment; (2) as a Full Faith & Credit judgment (assuming at least one state legalizes, first). Most likely the latter. Lawrence did neither, nor did Lawrence provide a precedent to either, nor was Lawrence any sort of necessary prelude to same-sex marriage...

The qualifier "necessary," isn't necessary. Granted, advocates of same-sex marriage my attempt to force this change on society via a number of avenues, but Lawrence is certainly one of them, and is a great benefit to their cause.

From Kennedy's majority opinion in Lawrence...

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id. , at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

< -snip- >

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

In Lawrence, the SCOTUS has held that Bowers denied to persons in homosexual relationships the Constitutional protection of their autonomy for the purposes of making "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

In Lawrence, the SCOTUS has further held that "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," is "at the heart of liberty," and in overruling Bowers has affirmed that this right may be excercised in the pursuit of homosexual self-definitions on an equal footing with that of hererosexuals. It's difficult to imagine that a right held to be "at the heart of liberty" could be held to be anything other than a fundamental right. The autonomy to make personal decisions regarding marriage has been explicitly encompassed in the overruling of Bowers by Lawrence.

Lawrence sets the table advantageously for the swiftest endgame possible for advocates of same-sex marriage.

[Torie]

Would you care to elaborate? The crime here was oral sex? If so, then if it has a higher sentencing than a male vaginally raping a woman, this statute is in trouble.

[AntiGuv]

Am I clear here? If you are a 18 year old male and you receive oral sex from a 14 year old girl you get 15 months, but from a 14 year old boy 17 years?

Yep, you are clear. What the Kansas 'Romeo & Juliet' statute did was reduce the sentencing standards for oral sex in cases where the younger teenager is 14 to 16, the older teenager is under 19, the age difference between them is less than four years and there are no third parties involved, the maximum penalty is 15 months in prison. The rule simply wasn't applied in cases where the partners are of the same sex.

BTW, the 18 year old in this case didn't receive oral sex, he provided oral sex, if you catch my meaning....

[Torie]

IC. Well, then we are left arguing that homo oral sex with one underage is more damaging to the underaged victim, than hetero oral sex. I think that can be sustained actually.

[Sci Fi Guy]

Have you considered what may have been gained by this decision? Homo stuff aside, consider it's implications in limiting how much the government on all levels can intrude into your private life. I think there may well be future rulings based on this decision that will highly please many 'conservatives' (whatever a conservative is).

Thanks for the thoughtful reply. But I don't think that we have gained anything by this decision.

People keep spouting off about kicking the government out of the bedroom. The truth is this does not kick the government out of any bedroom, because the government was never in any bedroom. This law was not enforced. The only reason we had a case at all is because this was a set up. A staged arrest in order to challenge the law.

And this case sets a precedent that could be used to redefine marriage, abolish anti-prostitution laws, and other type of sexual deviance laws (i.e. children, animals). Even Nevada which has "legal" prostitution has a lot of laws to keep it from causing harm to the communites there.

Some of the more libertarian types are pleased with this ruling because they see it as lessing of laws over personal behavior. However they need to realize they just lost any chance of a state passing any drug legalization reform. The supreme court is denying the right of a state to decide matters like this for themselves. Authority is being taken from the local statehouse and being moved to Washington.

Now please cheer me up with the bright side of this decision.

[AntiGuv]

Sorry, I've just provided misinformation (I hate it when I do that - teaches me to base my remarks on media reports rather than looking up the statute...) The Kansas 'Romeo & Juliet' law does indeed reduce the sentence in cases of opposite-sex anal intercourse as well, in addition to opposite-sex oral intercourse. This is the language of the statute:

21-3522. Unlawful voluntary sexual relations. (a) Unlawful voluntary sexual relations is engaging in voluntary: (1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and the child and the offender are the only parties involved and are members of the opposite sex.

(b) (1) Unlawful voluntary sexual relations as provided in subsection (a)(1) is a severity level 8, person felony.

(2) Unlawful voluntary sexual relations as provided in subsection (a)(2) is a severity level 9, person felony.

(3) Unlawful voluntary sexual relations as provided in subsection (a)(3) is a severity level 10, person felony.

So, the singular problem involves that phrase: "and are members of the opposite sex."