Skip to comments.Libertarians Join Liberals in Challenging Sodomy Law
Posted on 03/19/2003 12:48:02 AM PST by RJCogburn
The constitutional challenge to the Texas "homosexual conduct" law that the Supreme Court will take up next week has galvanized not only traditional gay rights and civil rights organizations, but also libertarian groups that see the case as a chance to deliver their own message to the justices.
The message is one of freedom from government control over private choices, economic as well as sexual. "Libertarians argue that the government has no business in the bedroom or in the boardroom," Roger Pilon, vice president for legal affairs at the Cato Institute, said today, describing the motivation for the institute, a leading libertarian research organization here, to file a brief on behalf of two gay men who are challenging the Texas law.
Dana Berliner, a lawyer for the Institute for Justice, another prominent libertarian group here that also filed a brief, said, "Most people may see this as a case purely about homosexuality, but we don't look at it that way at all." The Institute for Justice usually litigates against government regulation of small business and in favor of "school choice" tuition voucher programs for nonpublic schools.
"If the government can regulate private sexual behavior, it's hard to imagine what the government couldn't regulate," Ms. Berliner said. "That's almost so basic that it's easy to miss the forest for the trees."
The Texas case is a challenge to a law that makes it a crime for people of the same sex to engage in "deviate sexual intercourse," defined as oral or anal sex. In accepting the case, the justices agreed to consider whether to overturn a 1986 precedent, Bowers v. Hardwick, which upheld a Georgia sodomy law that at least on its face, if not in application, also applied to heterosexuals.
While the Texas case has received enormous attention from gay news media organizations and other groups that view the 1986 decision as particularly notorious, it has been largely overshadowed in a busy Supreme Court term by the challenge to the University of Michigan's affirmative action program. The justices accepted both cases on the same day last December, and briefing has proceeded along identical schedules. The Texas case will be argued March 26 and the Michigan case six days later, on April 1.
Although libertarian-sounding arguments were presented to the court as part of the overall debate over the right to privacy in the Bowers v. Hardwick case, they were not the solitary focus of any of the presentations then. The Institute for Justice had not yet been established, and the Cato Institute, which dates to 1977, had not begun to file legal briefs. Whether the arguments will attract a conservative libertarian-leaning justice like Clarence Thomas, who was not on the court in 1986, remains to be seen.
More traditional conservative groups have entered the case on the state's side, among them the American Center for Law and Justice, a group affiliated with the Rev. Pat Robertson that is a frequent participant in Supreme Court cases.
The split among conservatives demonstrates "a diversity of opinion among our side," Jay Alan Sekulow, the center's chief counsel, said today. He said the decision to come in on the state's side presented a "tough case, one that we approached with reluctance." He said he decided to enter the case after concluding that acceptance of the gay rights arguments by the court might provide a constitutional foundation for same-sex marriage.
The marriage issue also brought other conservative groups into the case on the state's side. "The Texas statute is a reasonable means of promoting and protecting marriage the union of a man and a woman," the Family Research Council and Focus on the Family told the court in a joint brief.
While the Texas case underscores the split between social and libertarian conservatives, it is evident at the same time that the alliance between the libertarians and the traditional civil rights organizations is unlikely to extend further. The two are on opposite sides in the University of Michigan case, with both the Cato Institute and the Institute for Justice opposing affirmative action while nearly every traditional civil rights organization has filed a brief on Michigan's side. The Bush administration, which filed a brief opposing the Michigan program, did not take a stand in the Texas case.
In 1986, when the court decided Bowers v. Hardwick, half the states had criminal sodomy laws on their books. Now just 13 do. Texas is one of four, along with Kansas, Oklahoma, and Missouri, with laws that apply only to sexual activity between people of the same sex. The sodomy laws of the other nine states Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia do not make that distinction. The Georgia law that the Supreme Court upheld was later invalidated by the Georgia Supreme Court.
The Texas law is being challenged by John G. Lawrence and Tyron Garner, who were found having sex in Mr. Lawrence's Houston apartment by police officers who entered through an unlocked door after receiving a report from a neighbor that there was a man with a gun in the apartment. The neighbor was later convicted of filing a false report. The two men were held in jail overnight, prosecuted and fined $200 each. Represented by the Lambda Legal Defense and Education Fund, they challenged the constitutionality of the law and lost in a middle-level state appeals court. The Texas Supreme Court refused to hear the case.
The United States Supreme Court's decision to take the case has been interpreted on both sides as an indication that the court is likely to rule against the state. Both Texas and the organizations that have filed briefs on its side devote considerable energy in the briefs to trying to convince the justices that granting the case was a mistake, a choice of tactics that is usually an indication of concern that a decision that does reach the merits will be unfavorable.
If the justices do strike down the Texas law, the implications of the decision will depend on which route the court selects from among several that are available. The court could find that by singling out same-sex behavior Texas has violated the constitutional guarantee of equal protection. Because the Bowers v. Hardwick decision did not address equal protection, instead rejecting an argument based on the right to privacy, such a decision would not necessarily require the court to overrule the 1986 precedent.
The Lambda Legal Defense and Education Fund's brief for the two men urges the court to go further and rule that any law making private consensual sexual behavior a crime infringes the liberty protected by the Constitution's due process guarantee. Several arguments in its brief appear tailored to Justice Sandra Day O'Connor, who voted with the majority in Bowers v. Hardwick but is now assumed, on the basis of her later support for abortion rights and her votes in other due process cases, to be at least open to persuasion.
For example, the brief includes a quotation from Jane Dee Hull, then the Republican governor of Arizona, where Justice O'Connor once served in the Legislature, on signing a bill repealing the state's sodomy law in 2001. "At the end of the day, I returned to one of my most basic beliefs about government: It does not belong in our private lives," Governor Hull said.
Hardly. History clearly demonstrates that the Catholic Churches' ethics have been as morally relative as God's.
This is not at all an irrelevant analogy. True, a painting belongs to a different category than human beings, but human beings belong to a different category than God. The difference between God and men is far greater than the difference between a man and a painting. The difference is infinite in all respects. God transcends all categories.
A human being is an ultimate end in one sense but not in another. Yet even earthly human life is not an ultimate end, since the taking of human life is often justifiable. In fact, individual lives can be sacrificed for the common good, as in the case of war. Ultimately, eternal life with God is the end that human life is directed toward.
The Bible also discusses a prophet who offered his virgin daughters to be raped and sexually abused as a method of appeasing the mob outside his door.
Sophistry and silliness.
I think you mean "the God purportedly described in the Bible".
Personally I find the "God" of the old testament very hard to swallow as a supreme being. More like a petulant tyrant.
But that doesn't preclude there being a "real" God, who wasn't morally relative.
Mystical hokum, which still does not disguise the moral relativism of a position which states that it's sometimes moral to kill little toddlers who are clinging to their mother's skirts...
That's true with appeals to revelation alone, although it is possible to determine whether divine revelation contradicts reason. Nevertheless, arguments based on reason alone, proceeding from First Principles, such as "the good is to be done and evil avoided," are knowable by all with at least moral certainty.
You might enjoy Aristotle's Nicomachean Ethics. He didn't appeal to divine revelation at all.
Right, that's what exactly I mean.
God's inability to "perform" logical impossibilities is not a defect in God, but rather a perfection.
And utterly immaterial as to whether you know God better than I do.
Great, then it's perfectly logical that God ordering his followers to kill children is an example of moral relativism.
Society is a collection of individuals which should be ordered toward the common good (defense, commerce, worship, etc.) Society is inevitable and spontaneous wherever two or more people are gathered together. Man never exists outside of society for his entire life and normally exists within society. Men may exist in good or bad societies, but living extra-societally is pretty much impossible.
Is society binding on everyone? If so, why?
This is a nonsensical question. Can you rephrase it?
By what authority does society impose its idea of "rights" on individuals?
The object of law is the common good or the common welfare (as in the Constitution). The welfare of the society is of more importance than the welfare of one individual inasmuch as the whole is greater than its parts. This stands to reason since sometimes individual lives must be sacrificed for the greater good, as in war.
I'm glad that you agree that the alleged "revelation" to commit genocide should have been rejected as the voice of psychosis, since authorization for it was obviously was not to be found in any holy writings at the time.
The whole may be numerically "greater" than the parts, but that in itself gives it no moral precedence over the individual.
This is a nonsensical question. Can you rephrase it?
What authority does society have to force an individual to conform to its wishes? If three men wish to rob one man, do their greater numbers make their actions moral? I think not...
Why ever not? There are many precedents on both the individual and the national levels of obvious moral atrocities being justified as "God's Will".
One might entertain the possibility that a nation that committed an atrocious act that was against its own desires and interest had been motivated by the sincere belief that God had commanded it. Taking over a neighboring tribe's land clearly does not meet that condition.
It doesn't matter which. Unless there is some sort of right to do harm to oneself, then there is no right to put any consideration ahead of one's own physical safety.
I haven't seen anyone talk about that, but lets look at it.
The first amendment, are you against it?
You talked about proyestizing homosexuality, now you talk about rape.
So what kind of talk does the first amendment allow about homosexuality? (in your mind)
Recruit? Explain precisely. You mean personally proposition underage males?
Explain the indirectly part.
You have failed to provide a logical argument for your belief that God is the source of moral absolutes, and have offered nebulous arguments in the face of hard evidence to the contrary. The essence of your argument is that moral relativism is ok if God approves of it. I think I've proven my point that God is as morally relative as the rest of us.
Obviously you don't. Good. Maybe next time you won't be so quick to attack atheists for not knowing all of them.
By the way, your initial argument on this thread assumed that all libertarians are atheists, which is certainly not true either.
Also untrue, since libertarianism is merely a political philosophy and says nothing about the religious views of those who subscribe to it may hold. Why did you you make such a broad and unjustified statement?
Really? Then the existence of the Christian socialists and communists condemns you. That broad brush you're wielding can certainly be used both ways.
Furthermore, your statement bespeaks an ignorance of political philosophy, and such a statement would certainly earn you a failing grade in any freshman course on political philosophy...
Instead of basing your views solely on what you see on this limited site, you should read a book or two on the history of libertarianism, especially the pre-Rand days. You'll be surprised...