Skip to comments.Santorum is Right, and You Should Be Supporting Him: An Explanation of Lawrence v. Texas
Posted on 04/26/2003 12:28:27 PM PDT by The Old Hoosier
With the recent publicity surrounding Sen. Rick Santorum's remarks on the issue of sodomy, almost everyone on FR must be familiar by now with the Supreme Court case Lawrence v. Texas.
Petitioner Lawrence and his special friend are trying to overturn a Texas law against homosexual sodomy.
There are two issues in this case:
1) Is there a constitutional right for any two adults to engage in any kind of consensual sex, as long as it's behind closed doors? The petitioners say yes, there is, and are asking the court to agree.
2) Does it violate the 14th amendment's guarantee of equal protection to outlaw homosexual sodomy, but not heterosexual sodomy, as the Texas law does? In other words, should sexual orientation become a specially protected category under the 14th amendment--along with race? Again, the petitioners say yes.
If you do not think that this affects you, you are wrong. Depending on the outcome of this law, gay marriage could become the law of the land, without any legislation or reference to any democratic process whatsoever. Also, if you run a daycare center, you could be sued for refusing to hire a homosexual. You could eventually be driven out of business because of your religious beliefs.
It could get even worse. A bad decision could go far enough to invalidate state laws against prostitution. Consensual incest and polygamy would also become a constitutionally protected activity, as Santorum recently pointed out, referencing the same argument in the last major Supreme Court case on sodomy, Bowers v. Hardwick (1986).
Just as with abortion in the post-Roe period, there will be no political solution once the decision is made. Your vote will make no difference on this issue if the Supreme Court decides, by judicial fiat, to elevate sexual activity and/or sexual orientation to a special, protected class of activity.
You may even oppose sodomy laws and think they are antiquated and unevenly enforced. You may even be gay. Well, fine. If you want to repeal sodomy laws, go pass a law, do not let the Supreme Court take away the people's right to self-rule. Even if you are a homosexual libertarian from the Cato Institute, you should want us to arrive at libertarian policy decisions through democratic legislative proceses, not through dictatorial impositions from an unelected court.
That's why even you, whoever you are, should be pulling for Texas in this case. That's why you should write a letter to the White House asking President Bush why he did not file an amicus brief with the court in favor of Texas, as he did in the affirmative action case earlier this year.
Most likely, everything will hang on the decision of Justice Kennedy. If he votes to classify sexual orientation as a category protected by the 14th amendment, then immediately suits will pop up, citing this case, demanding homosexual "marriage" on the grounds that hetero-only marriage laws discriminate against people on the basis of sexual orientation. It could happen right away or after a short time, but soon homosexual marriage will be imposed on all 50 states as a result of such a decision. The only way to stop it will be a constitutional amendment, which is not likely or easy to do.
If the court also rules that there is a right to all private, consensual sex, then there will also be no basis for state laws against consensual incest or polygamy, as Santorum pointed out--or even prostitution. The logical conclusion will also be to legalize drug cultivation and use within the home, not just marijuana but also methamphetamines. Not even the most hard-core drug-legalizer, if he is sane, would argue that the constitution actually guarantees a right to grow and use drugs in one's home.
The court might come up with some bogus justification for not striking down all of these laws right away, but that won't last long. Sooner or later, a future court will use this case to strike down all state laws against anything whatsoever that is done in private, regardless of the harm it does to society.
This case should be rather frightening for anyone who believes in the constitution and the rule of law.
Write your congressmen and senators, as well as the President, and tell them you want them to save the constitution. Tell them to refuse to accept a Supreme Court ruling that elevates disgusting acts of sodomy above real constitutional rights such as gun ownership and freedom of religion.
You're confusing the two issues in the case. Think about it again, considering them separately. You will see that I'm right.
This is not about the teachings of the Church. Should we enshrine mandatory weekly church attendance in law?
Do you support the Patriot Act?
I'm amazed at the number of people on this site who rant and rave at the government's invasion of the privacy of potential terrorists but have no problem with the government peeping into bedroom windows.
... that anything you do within the confines of your home is legal.
Precisely! There was a recent case where an amatuer surgeon denutted another consenting adult, and ended up in jail for illegal surgery. How would that fit into sinky's world? How about "Doctor" Jack Kevorkian and his anti-Catholic death machine? Let's not forget abortion either, drug laws, prostitution or even (horros, no!) the unlicensed practice of accounting! All legal in sinkys Brave New World of Privacy and Consenting Adults.
Do you support the Patriot Act?
Do you get a volume discount on all the Red Herrings you have sinky? How about dealing with THIS case and THIS law?
The Privacy issue is my primary concern. The whole problem with the invented right of privacy is that as a "constitutional right" it supercedes other laws. Hence it leads to the legality of any action taken in private. Think drug use, euthenasia, etc. Otherwise you end up with 9 justices picking and choosing. Even when 2 constitutional rights colide, you still have judges making these determinations.
But there is a big lobby out there for "gay-rights" that are reacting to this in the wrong way.
I disagree, there is a small, vocal, wealthy lobby for the queers, but the American People reject that group overwhelmingly. The DNC is locked into a balkanized special interest group view of politics and they are left with nothing but extremists. That hurts them badly. True, lesbian anti-gun halfbreeds won't like what Senator Santorum said, he loses all six of their votes. Boo-hoo.
Santorum is not a leader
We need party leaders who are right and who also are smooth enough to sell our ideas to the mainstream.
We need people like President Bush, Cheney, Rumsfeld, people who can articulate our positions to all of America, and people who know when to shut up.
The law concerns an action, not the person taking the action. No matter who the person is who participates in the homosexual behavior, that person is treated the same as any other person taking the same action.
The same is true of any of a number of murder laws. There are people who, because of various factors involving their tendencies and their upbringing, would never murder anyone. That doesn't means the law treats murderers unequally from the non-murderers.
INTEREST OF AMICI CURIAE Amici are medical organizations that believe public health policy should be based upon scientific evidence rather than political expediency. They believe that the medical research clearly demonstrates the harmful nature of same-sex sodomy, and that compassionate, caring physicians should discourage such harmful behavior. Amici submit this brief to inform the Court of the public health concerns associated with same-sex sodomy. 1
The Texas Physicians Resource Council is a statewide network of Christian physicians and dentists made up of approximately 500 members. Its purpose is to address medically related ethical issues that affect Texas families, including issues relating to homosexuality. The Christian Medical and Dental Associations (" CMDA") are national organizations made up of the Christian Medical Association and the Christian Dental Association, with over 17,000 members. CMDA promotes evidence-based medicine and addresses policies on healthcare issues. Many CMDA members are involved in treating sexually transmitted diseases worldwide through medical missions to third world countries. The Catholic Medical Association upholds principles of the Catholic faith and morality as related to the science and practice of medicine, and applies principles of faith and morality to modern medical science and practice.
Texas has a legitimate interest in regulating public health, and the CDC has identified sexually transmitted diseases (" STDs") as a public health problem. Sodomy is an efficient method of transmitting STDs. And regardless of the reason, same-sex sodomy is far more effective in spreading STDs than opposite-sex sodomy. Multiple studies have estimated that 40 percent or more of men who practice anal sex acquire STDs. In fact, same-sex sodomy has resulted in the transformation of diseases previously transmitted only through fecally contamin-ated food and water into sexually caused diseases primarily among those who practice same-sex sodomy. The issue under rational-basis review is not whether Texas should be concerned about opposite-sex sodomy, but whether it is reasonable to believe that same-sex sodomy is a distinct public health problem.
The historical evidence clearly shows that state legislatures have always possessed a broad authority to outlaw private, consensual sex, and that they also prohibited same-sex sodomy specifically since the earliest days of American history. Enactment of the Bill of Rights in 1791 and the Fourteenth Amendment in 1868 did not alter that state legislative authority. This Court has frequently looked to the Constitution's "text, history and precedent" to determine its meaning. Eldred v. Ashcroft, ___ U. S. ___, 123 S. Ct. 769, 777 (2003). As this Court recently reiterated in Eldred v. Ashcroft, "a page of history is worth a volume of logic." Id., quoting New York Trust Company v. Eisner, 256 U. S. 345, 349 (1921); see also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 790 (1995) (" Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive.").
It is a settled constitutional principle within our federal republic that states possess general police powers. Inherent within these powers lies the duty to regulate the "health, safety, and morals" of their members. Barnes v. Glen Theater, 501 U. S. 560, 569 (1991) (referencing public indecency statutes which were designed to protect morals and public order). States have used this police power to promote marriage and direct the sexual activities of their citizens into marriage by criminalizing a wide variety of nonmarital sex acts, such as polygamy, rape, fornication, adultery, prostitution and incest. While crimes such as rape and incest are not consensual, adultery, prostitution, polygamy and fornication are private acts between consenting adults that have been regulated throughout our nation's history. As we shall demonstrate, states have possessed and properly exercised the authority to regulate deviate sexual conduct including sodomy at all relevant times in our nation's history.
Further, when bedroom activities start being the foundation for families, the emotional and social problems have a cost that gets passed on to the community as well.
To the founders of this nation, freedom meant the freedom of the people to set their own laws. It did not mean freedom from laws. The people of Texas should maintain the freedom to set their own laws on this behavioral issue.
The same people who want sodomy to be a constitutional right still want the gov't to confiscate my property to pay for AIDS research, condom distribution, sex-ed, etc... They aren't pro-freedom at all.
The Georgia sodomy law, underlying Bowers, has been thrown out since 1986 by the Georgia Supreme Court as "unconstitutional."
Don't know what that means to this case, but the fact that Texas specifically exempted heterosexuals may be why the SC took this case.
SUMMARY OF ARGUMENT
1. This Court should dismiss the writ as improvidently granted. The minuscule record in this case establishes virtually nothing beyond the fact that petitioners committed anal same-sex sodomy. For all the record reflects, the sodomy could have been nonconsensual, or public, or paid for, or incestuous, or part of an anonymous "one-night stand" arranged through an online chat room. The record does not even indicate whether either participant could fairly be described as homosexual in orientation. This case is therefore unsuitable for the landmark adjudication petitioners seek. All that is properly before the Court is a purely facial challenge to the classification, and prohibition, of certain extramarital deviant sexual acts. There is not even a record upon which to make either an informed judgment about such acts (for due process purposes) or an informed comparison between the acts within and without the scope of the challenged Texas statute (for equal protection purposes).
2. This Court should affirm the judgment rejecting petitioners' claim of a fundamental right to engage in same-sex sodomy. This Court has never recognized a fundamental right to engage in extramarital acts of sexual gratification, much less a right to sexual gratification unconnected to marriage or procreation. To reach such a result in this case would require not only the overruling of Bowers v. Hardwick, 478 U. S. 186 (1986), but also the invalidation of fornication laws (as petitioners admit) and a host of other laws defining sex offenses. This Court has repeatedly cautioned against the expansion of substantive due process, and no such expansion is warranted here. This case presents only a facial challenge, and the Texas sodomy statute clearly may be constitutionally applied in a broad range of circumstances, e. g., to coercive acts, to prostitution, to public acts of sodomy, etc. (For all the record shows, such circumstances may well have applied here.) Hence, petitioners' facial challenge must fail.
3. This Court should affirm the judgment rejecting petitioners' equal protection claim. This case has been litigated under the rational basis standard; hence, as this Court explained in Heller v. Doe, 509 U. S. 312, 319 (1993), it would be wholly improper and unfair to inject a new standard here. Moreover, because there is no fundamental right at issue and because the record does not even identify what supposed suspect or quasi-suspect class petitioners belong to, heightened scrutiny is in any event unjustified. Under rational scrutiny, the ban on same-sex sodomy clearly passes constitutional muster. There are at least three, independently adequate, rational bases for the statute. First, a ban on same-sex sodomy permissibly furthers public morality. Second, the extensively documented health risks of same-sex sodomy supply a strong public health rationale for the statute. Third, based upon the view of all nine Justices in Bowers, as well as this Court's other "privacy" decisions, a state could reasonably conclude that, to minimize the likelihood of constitutional attack and invalidity, a ban on sodomy needed to exclude heterosexual acts. Importantly, the distinction between heterosexual and homosexual unions is the hallmark of marriage law. To invalidate that distinction here would be tantamount to holding marriage unconstitutional.
II. PETITIONERS' SUBSTANTIVE DUE PROCESS CHALLENGE FAILS.
This Court has never recognized a federal constitutional right to engage in extramarital sexual acts --even the consensual, nonmercenary, private acts of adults, much less sexual acts that deviate from the normal sexual union of a man and a woman. Carey v. Population Servs. Int'l, 431 U. S. 678, 688 n. 5 (1977) (" the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state 7 statutes regulating private consensual behavior among adults . . . and we do not purport to answer that question now") (citations, editing marks, and internal quotation marks omitted). Creation of such a novel right would require precisely the sort of ahistorical, atextual, freewheeling substantive due process adjudication which this Court has renounced for the past thirty years. See, e. g., Washington v. Glucksberg, 521 U. S. 702, 720- 22 (1997); Reno v. Flores, 507 U. S. 292, 302-03 (1993); Collins v. City of Harker Heights, 503 U. S. 115, 125 (1992); Michael H. v. Gerald D., 491 U. S. 110, 121-23 (1989) (plurality); Bowers v. Hardwick, 478 U. S. 186, 194-95 (1986). As Justice Stevens wrote for a unanimous Court, As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. Collins, 503 U. S. at 125 (citation omitted). Petitioners rely heavily upon this Court's abortion and birth control jurisprudence. E. g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833 (1992). Casey, however, relied heavily upon stare decisis in declining to overrule in toto the line of cases beginning with Roe v. Wade, 410 U. S. 113 (1973). See Casey, 505 U. S. at 854-69. In the present case, existing precedent --Bowers --weighs against recognition of the proposed right; hence the stare decisis rationale of Casey, regardless of its merits, 9 gives no support to petitioners.
Don't know what that means to this case,
It means nothing. Georgia has an EXPRESS right to privacy in their State Constitution. When will you get to articulating your NON-Catholic answers to my questions?
Only if you include sexual orientation under the 14th amendment. Currently, the court has not read it into there. And it should not.
If privacy is not one of those other rights what are?
This amendment has been ignored for centuries. What rights were ment by this important amendment?
So the Supreme Court based the Bowers decision on a law that was unconstitutional on its face?
If Georgia has an express right to privacy, how did this law survive as long as it did?
Gonna have to look at this a little more, as something's missing.
So the Supreme Court based the Bowers decision on a law that was unconstitutional on its face?
Poor sinky, it wasn't "unconstitutional" based on the US Constitution and that's the issue. When will you have time to posit your non-Catholic answers to my simple questions?
There's a difference between consensual private acts between consenting adults and the very public institution of marriage.
So define them. Defend them against the 14th Amendment and the soi-disant "right to privacy" you embrace. Go ahead.
But it was unconstitutional in Georgia.
Never saw your questions.
You bet, and more will be coming if this decision comes back wrong.
If only those priests had waited a bit longer to get caught, they could have argued that they were engaging in a constitutionally protected activity. We do have a sitting justice on the court who wants the age of consent lowered to 12.