Posted on 06/26/2003 7:25:57 AM PDT by jethropalerobber
Supreme Court Strikes Down Gay Sex Ban
WASHINGTON - The Supreme Court struck down a ban on gay sex Thursday, ruling that the law was an unconstitutional violation of privacy.
The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex.
The case is a major reexamination of the rights and acceptance of gay people in the United States. More broadly, it also tests a state's ability to classify as a crime what goes on behind the closed bedroom doors of consenting adults.
Thursday's ruling invalidated a Texas law against "deviate sexual intercourse with another individual of the same sex."
Defending that law, Texas officials said that it promoted the institutions of marriage and family, and argued that communities have the right to choose their own standards.
The law "demeans the lives of homosexual persons," Justice Anthony M. Kennedy wrote for the majority.
Sorry, I can't agree with him.
While sounding very learned and official he makes a real hash of Roe v. Wade in the beginning that I find astounding.
How can "privacy" possibly override the right of the unborn child to life? Obviously there's no private right to murder, as the idiocy of Roe v. Wade insists. The rights of the unborn child are clearly being violated - in fact its most critical right, the right to life.
But faggotry is different. In homosexual sex no one's rights are being violated. But Scalia seems to think goobermint has a right to prescribe morality exclusive of rights violations.
Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that legislatures are permitted to legislate with regard to morality . . . rather than confined to preventing demonstrable harms.)
I have a big problem with that.
Decriminalizing homosexual sodomy is quite reasonable to me. State sanction, "hate crime" crapola, anti-discrimination based on sexual preference, etc., etc. is not. This does not have to lead to homosexual "marriage" or celebration of faggotry. All that garbage is repugnant and should not be accepted. It has gone way too far already.
Probably...I guess it would depend how "marriage" was defined. That's why communities that wish to prohibit gay marriage are on the correct legal track by beginning with the definition of "a man and a woman."
Though first, by changing from homosexual to heterosexual they become different acts.
Second, an argument could easily be made that the reason for the acts to be not illegal for heterosexuals was a matter of privacy - since the acts were so similar to mating acts that the attempt to discern between them would be too invasive. That would not apply to homosexuals, since there are no acts approximating mating that they can conduct with such a partner.
You have me confused are we talking mans law or are we talking G-ds law? Using the word "sin" takes it out of the realm of the government judicial system.
I don't think so.
While Scalia is right that the court overturned its own policy regarding stare decisis, the right to privacy rationale was reaffirmed rather strongly. Taken to its logical conclusion, the court could overturn Roe using the reasoning of today's case, but it would still have to overturn the right to privacy which was the cornerstone of this case.
It's a paradox, but it appears that the court values the latter more highly and probably is free to ignore it's own legal arguments in this case. After all, it's only stare decisis.
I personally agree with you -- but what most of us are discussing here is Constitutional process. It's very dangerous to simply bypass the way the Constitution means our republic to work, just because we see a law as unfair. Unfair laws should be pursued at the state house, in congress, and in Constitutional amendments. The only thing standing between our republic and totalitarianism is adherence to the Constitution.
A clear conflict of interest......
Important point -- but I believe that if it's not mentioned in the federal constitution, states have a right to regulate it, right?
On constitutionalist grounds, agreed. On practical grounds, no. Had they found equal protection basis for homosexual sodomy, the next step would be equal protection grounds for gay marriage, adoption, etc.. However, a ruling based on privacy, however nebulous, can't reasonably be applied to marriage or adoption.
I've been sneering all week at conservatives who try to find a silver lining to the AA decision. But there really may be a silver lining to this one.
You're twisting the meaning of the passage, which was prohibiting unreasonable searches and seizures. The so-called right to privacy does not begin or end at someone's house. The court didn't say that the sodomy law could not be enforced only inside someones home, it cannot be enforced anywhere. If 2 homos engage in a sex act in a public park, there is no expectation of privacy, yet this ruling would protect them from the sodomy charge.
Some argue that just meant the Federal government orginially, others -- the winning majority -- hold that it includes ALL levels of government in the Nation and States.
So sure there is right to privacy, a right to drive on the public road, a right to conduct business -- yet the STATES can and do restrict and regulate those rights, and are empowered to do so as we have established the state charters and state constitutions, and elect the state legislators.
Remember that sodomy also includes oral sex under many sodomy statutes. Some states' statutes, including Louisiana's (I know because I used to live there), also apply to such relations between heterosexual couples. (Too bad Mr Clinton never took Miss Lewinsky with him to New Orleans. I'd trust Cajun jurors more than the US Senate for a fair impeachment trial.)
Let me add that as a Texan, I'm not too pleased that activist judges have invoked the Fourteenth Amendment in a case which should've been judged on the Tenth Amendment. Today's majority opinion and Justice O'Connor's concurring opinion rely on two separate clauses emanating from the Fourteenth Amendment; the former is based on due process, the latter is based on equal protection. The Court's incessant invocation of the Fourteenth Amendment -- which was also raised in the University of Michigan Law School affirmative action case -- is a massive loophole that liberal appelants are using at every turn with great success (thanks to activist judges like Mr Kennedy).
Justice Scalia hit the nail on the head in his dissent, writing:
Having decided that it need not adhere to stare decisis [i.e., letting previous decisions stand (following citations of Casey)], the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim...
Justice Scalia also warns that Justice O'Connor's consenting opinion "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples" as she "argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor." The majority decision also leaves an opening (I sure do hate using that phrase when discussing sodomy).
Now that they've overruled the wishes of the Texas electorate, I hope Justices O'Connor, Ginsburg, and Stevens will soon retire.
You're missing the point. Whatever "constitutional rights" the Supreme Court finds serve as a very real limit on the actions of the government.
We may all have inalienable rights not enumerated in the Constitution or anywhere else, but the ones the government are going to recognize and protect or enforce are going to come from this document.
Yes ma'am, and the same goes the sale or distribution of any other artificial device resembling genitalia or designed or used for sexual stimulation. So don't pack your "toys" if you go to Mardi Gras. ;-)
Does that include a condom? Sorry couldn't resist asking.
The prohibition is a limit on the legal mode of infringement of the right. The right regards privacy, a search is infringement on that right.
The court erred when it nullified the TX law on privacy grounds, because the law didn't infringe on privacy, it forbade an act unrelated to the matter of privacy. The court also erred in the '70s when it negated state abortion laws on privacy grounds. That line of reasoning also would negate all laws, as long as the criminal activity was a private matter for the criminals. The court was acting to install their vision, nothing else.
The reason the right to privacy exists as an enumerated right is that the founders valued it. Their privacy was important and they realized, that w/o that enumeration and limit placed on it's infringement, the whim of the rulers to search at will would reign. The idea that the people should open up their lives to demonstrate to the govm't that they had nothing to hide would quickly end up the norm of operation and the establishment of a stubborn and oppressive tyranny.
Certainly there is a long term precedent for sodomy laws. While precedent is a major factor in law, it shouldn't be the only factor.
The irritating thing about Roe v. Wade is that it elevated the mother's right to privacy above the child's right to life. That seems nonsensical on the face of it. As well as whimsical.
Today's ruling does overturn long term precedents.
Certainly there is a long term precedent for sodomy laws. While precedent is a major factor in law, it shouldn't be the only factor.
The irritating thing about Roe v. Wade is that it elevated the mother's right to privacy above the child's right to life. That seems nonsensical on the face of it. As well as whimsical.
Today's ruling does overturn long term precedents.
That some acts are intrinsically evil, and that by condoning them, we as a society condone that evil.
Evil acts make evil people; even if the acts themselves are carried out in private, the people who commit them live lives that are public, and thus carry the evil into society until it becomes woven into the culture itself.
I do not wish to live in a culture where evil is condoned; therefore, I oppose the evil of sodomy, even when carried out in private between consenting adults.
Nope. The state even got into the condom business in the 1990s.
Personally, the thought of going in through the out door is a major turn off.
Don't forget, anti-sodomy laws didn't just apply to anal sex, but oral sex as well. In 4 of the 13 states that had/have such laws, they only aply to same sex couples (Texas, the state in question in this case, being one). The other 9 prohibited anla/oral sex for all couples. Lots of guys will be glad to know their wives/girlfriends can polish their knobs without breaking th law now.
IMHO, the court should have struck down the law on the basis of equal protection under the law premieses only. If Texaas wanted to ban it for all couples fine, that's teh state's right, but they can't single out just same sex couples.
Do read Scalia's dissent -- Aristides linked it at #23.
Agreed.
First, please credit the poster that actually said that.
So are all the laws enacted with the founding of the United States government in 1788 (or 1790, if you want to wait until the last of the original 13 states ratified the Constitution) supposed to be in force today--like them or not? By the way, do you have any idea when the law that the Supreme Court just found unconstitutional was enacted?
They are supposed to be in force today unless in clear opposition to the Constitution as ratified and understood at the time, unless repealed or altered in a legal and Constitutional manner since then.
Bad laws should be legislatively repealed or repaired, not simply re-interpreted.
From where I stand, there are several points on the Constitution that needed refining, and some that still do. Amending the Constitution is the proper way - just making stuff up is not.
Sorry. I was referring to the legal argument. The moral argument is fairly simple - but was not only discounted but dealt with in a contrarian manner by the court.
And that is part of the problem with Kennedy's opinion. It seems to assume that, for some reason, homosexuals have to be sexually active, that practising homosexual acts is some necessary part of their identity.
Wow. I can cut and paste my replies today. The Moral Ayatollahs are pretty much carbon copies, it seems.
I could ask WHERE you get your moral instruction that more than one wife is 'immoral' (snip). I could ask you to cite it. (You won't be able to... it's a made up cultural tradition.)
That said, my standard disclaimer : Polygamy is its own punishment. Any man dumb enough to marry more than one woman deserves what he gets.
I don't suppose you'd care to explain how there can be a sex crime without a victim?
By your standards ancient statues of naked children, or paintings could be classified child porn. Better close them museums, Rufus.
GULF1.com - H.I.T.R.A.P. (Honesty, Integrity, Trust, Responsibility, Accountability and People): "TOLERANCE DOES NOT CHANGE THE NATURE OF EVIL" -Commentary by Robert L. Pappas, Col. USMC (Ret.) (June 24, 2003)
Everything else goes. Polygamy, Incest and prostitution should be legal.
There is a cultural aversion to Incest (except in Arkansas), founded (unlike the rest the Thumpers do) in scientific realty. At one time the gene pool was too small to allow sex between relatives as reproduction would produce genetic defects (See: Klinton family tree).
Now as gross as it is.... I'm not sure there's a scientific reason for this now, considering we're all mongrels now.
And once again my disclaimer: Anyone dumb enough to engage in Polygamy has formed their own punishment.
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