Posted on 04/26/2003 12:28:27 PM PDT by The Old Hoosier
He must have foreseen the advent of mass body piercing. :-)
There are two parts of the argument, and i understand that even though you have argued some "right to privacy," you have stuck more to the 14th Amendment side of it--namely, that if sodomy is illegal for homosexuals, why not heterosexuals too?
As a policy matter, my personal opinion is that it should be illegal for both. As I was telling tpaine hundreds of replies ago, we would prevent a lot of babies from getting AIDS and other horrible diseases if we actually stopped the spread of STD's through sodomy, which is probably the most risky activity for spreading STDs.
However, because homosexuals are not a protected class under the 14th amendment--and in fact are not properly a "class" at all, but rather a group of people who like to engage in certain kinds of activity--it seems unnecessary to advance a constitutional objection to the Texas law.
Think of it this way:
John belongs to a group of people who really like to do X.
Jim belongs to a group of people who really like to do Y.
The state legislature passes a law outlawing X.
So, does that give John an equal protection claim?
Of course not.
So the law should be changed, IMHO, but let's leave the constitution out of it. Let Texans change their own law.
Otherwise, you'll have gay marriage very quickly, since the argument will fly right through the court that state marriage laws are discriminatory, and equal protection requires it.
Whatever your opinion is here, that's pretty damn funny.
"As a policy matter, my personal opinion is that it should be illegal for both."
You see, we agree.
"However, because homosexuals are not a protected class under the 14th amendment--and in fact are not properly a "class" at all, but rather a group of people who like to engage in certain kinds of activity--it seems unnecessary to advance a constitutional objection to the Texas law."
That's were we have a huge difference. The Texas law itself creates a class by setting them apart from other people who enjoy the full privilege and right to enter into what Texas calls "deviant sexual intercourse".
That's the fatal flaw in the law, it criminalizes some people for engaging in an activity that others can freely enjoy. That gave the activists their ammunition.
Do you realize that in order to make your argument work, you had to create two sets of people, and spin the activity into two activities instead of just one.
The problem with your argument is that in the case of Texas, that's not the case. There is only one activity, and that's sodomy. Then, Texas itself creates a classification, and puts it in statutes.
Let's start with the fact that in their statutes, Texas classifies sodomy as "deviant sexual intercourse".
It then goes on to say that some people can freely engage in that "deviant sexual intercourse", while others can't.
The law enforces the activists's argument that homosexuals need heightened scrutiny in the eyes of the law, because legislatures are creating laws specifically addressing them.
If there had never been laws such as this, there would have been no possibility of a challenge to the institution of marriage.
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