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Supreme Legislature Discovers Right to Sodomy (Joseph J. Sabia)
Cornell Review ^ | 6/26/2003 | Joseph J. Sabia

Posted on 06/26/2003 4:22:19 PM PDT by TLBSHOW

Supreme Legislature Discovers Right to Sodomy

By Joseph J. Sabia

In an outrageous infringement on states’ rights, the United States Supreme Court has declared a Texas anti-sodomy law unconstitutional. In doing so, the Court has overturned the popular will of thirteen states—Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Utah and Virginia. Once again, the Supreme Court invented privacy rights to impose its will on the American People. In the majority opinion, Justice Anthony Kennedy wrote:

“[The Texas law] demeans the lives of homosexual persons…[the men] are entitled to respect for their private lives…The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

So now we have the Constitutional right not to be demeaned? Really? Is that part of some penumbra? Moreover, Justice Kennedy has apparently created a new Constitutional entitlement—respect. (Perhaps he found this in the heretofore ignored Aretha Franklin clause of the Constitution.)

In voting with the majority, Justice Sandra Day O’Connor flip-flopped from her 1986 judgment in Bowers v. Hardwick. What was her brilliant Constitutional argument for this 180 degree turn? She chuckled, "It’s a woman’s prerogative to change her mind?" Just kidding. Actually, it was an infinitely more serious argument: Times have changed. Ah, the living Constitution—my how you’ve grown since the last time I've seen you!

Justice Clarence Thomas, along with Justices Scalia and Rehnquist, dissented, with Thomas writing:

“I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is...uncommonly silly." Griswold v. Connecticut, 381 US 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”

Thomas gets it exactly right—if you are opposed to an anti-sodomy law in your state, you should write your legislator and urge him to repeal the law. Or, if your state constitution has a specific clause that bans the state from intruding into private sexual matters between consenting, non-related adults, then take your case to state court. But to pervert the U.S. Constitution to force the residents of states to accept the legal equality of gay sex and straight sex is an outrage. This is a social question that the people should decide, not a nine-person legislature.

As expected, the gay rights lobby is on cloud nine. Andrew Sullivan is already trying on wedding dresses:

“A Reagan appointee, Anthony Kennedy, wrote the decision. I haven't read it all yet so this is a preliminary take. But each day now, I can feel freedom dawning in this land again. The struggle of so many for so long is beginning to come true. What a privilege, what a joy, to be alive to witness it.”

Freedom dawning? Struggle? A privilege to be alive? All this emotion for legalized sodomy? Is he going to break into a show tune?

The American judicial system is in crisis. Now more than ever, special interest groups run to the Court to get their agenda enacted if they cannot achieve their ends democratically. They don’t care whether they undermine federalism, eviscerate states’ rights, and make the Constitution increasingly irrelevant. For them, the ends justify the means. Log Cabin Republican President Patrick Guerriero—a so-called Republican who claims to revere the U.S. Constitution—admitted as such in a memorable exchange with Pat Buchanan on MSNBC’s Buchanan & Press:

GUERRIERO: …We support an overturning of the remainder of sodomy laws across the country...

BUCHANAN: [Via] judicial fiat?

GUERRIERO: I don’t care how.

All of the gay activists thrilled over the Court’s action in Lawrence v. Texas have contributed to the erosion of this republic’s founding principles. The U.S. Supreme Court has disgraced itself by ignoring the Tenth Amendment and going along with the gay lobby. Justice Scalia, in his dissent, articulated this sentiment well:

“The court has largely signed on to the so-called homosexual agenda… The court has taken sides in the culture war.”

Indeed it has. And we conservatives must reverse this. How? We must hold President George W. Bush to his pledge to appoint men like Antonin Scalia to the Supreme Court. And we must accept nothing less.


TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: lawrencevtexas; sodomy; supremecourt
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To: BritExPatInFla
I realize that HIV is not only spread by the gay community, you need to educate yourself as well.

I am not the slightest bit worried, as I only shoot up with clean needles. /sarcasm

21 posted on 06/26/2003 6:11:45 PM PDT by Mark was here
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To: Malsua
Let's be real here. It should have never become law in the first place. Let's start by getting the FED _OUT_ of our lives in the first place(starting with taxation). I'm all for repealing morality legislation. If you think moral legislation is so great, Saudi Arabia might be a fit for you. They legislate and punish everything including what you think and do in your own home.

Malus:

It is not necessarily the particular ruling that true conservatives are so angry about, as much as it is the bastardized methodology by which the law was overturned.

Our nation was intended to be a nation of laws; laws written and enacted by people whom supposedly represent your everyday "Joe" on the street.

We were not, as a nation, intended to be ruled from the Courts; a system of law as arbitrary as it is unaccountable. You see, Judges on the Courts are not elected - they do not represent us. Therefore, they should not have the power to create law (as they did by illegitimate use of precedent in this case, and as they did in the bastardized Roe v Wade decision).

In the event that laws are passed which are extraneous, or are no longer relevant, the proper course of action is to begin in the legislature, and seek to have the laws repealed. If that fails, a challenge should be brought in the proper jurisdiction (This was a State law, its jurisdiction would initially be State courts). If the State courts do not overturn the law, it is more proper, in a "What Federalism Means" sense, now up to the plaintiffs to convince their fellow citizens and their elected officials that overturning the law is the proper thing to do.

By involving the Federal government in this State matter, we will always end up losing our rights to represent ourselves, and we will slip farther down the path to Soviet nanny-statism. We lose the true representative nature of our goverenment to the totalitarianism of Washington, D.C.

The question NOW is: Is this where you WANT us to be?

Do you WANT the Federal government to have the ultimate power to decide what is lawful, and what is not?

(As an aside, it should be noted that the "FEDS" were not involved in "policing the bedroom" in this case- the State of Texas was, at the behest of a majority of its Citizens. The Supreme Court's decision in this case has done NOTHING to remove the FEDS from your "private" life, as I bet there are quite a few Federal statutes that you can still violate in the privacy of your own home. Federal Drug laws come to mind, for instance.)

Please don't jump to the first conclusion that the Liberals and the radical side of the Libertarian party want you to come to. These parties both lead to the collapse of the American form of government, and the adoption of the European Super-State. Nothing could be worse for this nation than to lose the last bit of Federal Republicanism we have left.

:) ttt

22 posted on 06/26/2003 6:50:20 PM PDT by detsaoT (Socialism Is Bankruptcy - just ask Kalifornia (or The City Of Evil!))
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To: mikenola
Today's ruling was sound. Contrary to many FReepers I believe there is a constitutional basis for the "right to privacy" grounded in Amendment IV, "search and seizure". This is defacto privacy.

The 4th prevents unwarranted! search and seizure. If there is a reason to suspect that someone is comitting unlawful acts in the privacy of their home (growing drugs, committing murder, kidnapping, etc.), it is absolutely legitimate to "violate" the "right" to privacy by searching the person's home. If the Executive branch does not have the power to enforce the laws passed by the citizens of their state, we have NO rule of law, and we as a nation will cease to exist.

If we, as citizens, do not like the laws that we are breaking in the privacy of our homes, IT IS OUR SOVEREIGN RIGHT and our ABSOLUTE RESPONSIBILITY to work through our elected Legislatures to have said laws repealed, in whichever Jurisdiction the laws may be in.

Don't like the Federal Drug laws? Work through the Federal Congress to get them repealed!

Think Sodomy should not be a crime? Work through your State's legislature to have them repealed, as they are not in the Jurisdiction of the Federal Government, as defined by the Constitution!

And, of course, in the event that a majority of the citizens in your State do not agree with your cause-celebre', DO NOT FORCE YOUR WILL UPON THEM THROUGH THE COURTS! Relocate yourself to an area of the nation that is more in line with your beliefs!

THIS is what a Federal Republic is supposed to be about - NOT sectarian fighting in the FEDERAL courts!

:) ttt

23 posted on 06/26/2003 6:58:04 PM PDT by detsaoT (Socialism Is Bankruptcy - just ask Kalifornia (or The City Of Evil!))
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To: Malsua
I'm not a homo. However, I could care less what two consenting folks do. This decision simply removed the government from it. How is this a bad thing? Do you think it was EVER enforced?

It stomps all over the idea of federalism. Bye bye 10th Amendment.

Look at the decision. Read the justices' opinions. Their reasoning has nothing to do with Constitutional and legal arguments. It has to do with political and emotional arguments. Saying something like "It's wrong to have these laws because it's just not fair!" is not a valid judicial opinion.

The fact is, state and local government have the right to make bad legislation regarding sodomy. Should the laws be changed? Yes, becuase it's just dumb legislation. However, because it's the state's right to do such, it should be handled at the state level, through legislation.

I'll use Rush's analogy by exchanging the words "bestiality" and "incest" and "polygamy" for "homosexuality." What if these things were to become popular, and had their own advocates and lobbyists helping to gain acceptance for these disorders? Would it be alright for the Supreme Court to make them legal because they're popular?
24 posted on 06/26/2003 7:40:50 PM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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To: muir_redwoods
There is such thing as bad legislation. State governments making laws they shouldn't make. That's one issue. The issue here was does the state have the right to make these laws? The answer has always been yes. Stupid law? Yes. Legitimate law? Yes.
25 posted on 06/26/2003 7:42:25 PM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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To: DaGman


The government has a plethora of compelling reasons to keep sex between a father and daughter or nieces very illegal just a it does for bigamy and other crimes. To argue differently is simply hysteria.

This decision was a good one. The government has absolutely no business in the private bedroom of consenting adults, period.


You do realize that sex between fathers and daughters, uncles and nieces, mothers and sons, brothers and sisters, cousins and cousins can be consensual, don't you?

You're argument is totally emotional.
26 posted on 06/26/2003 7:44:25 PM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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To: Conservative til I die
>>
I'll use Rush's analogy by exchanging the words "bestiality" and "incest" and "polygamy" for "homosexuality." <<

That's BS. This SC judgement does nothing but elimanate a law about sodomy. I don't support Sodomy and I find it repulsive.

That said, I don't think it is in the interest of my gov't to regulate it.

All this ruling did was to overturn making sodomy illegal. Review the constituition if you're intent on it.

I'm not trying to regulate bedroom behavior. Can't you see that when the gov't regulates what you do in your own house, they can regulate what you do in every circumstance?

Geezus, isn't this obvious. Get the gov't OUT OF MY LIFE.

I don't give a blank about homos blanking each other in the blank. The gov't doesn't have a right to legislate about that. This recently overturned decision is only right. Stop the BS about cousins, children or whatever. This is about legal adults who make their own decisions.(That I abhor personally)



27 posted on 06/26/2003 8:24:30 PM PDT by Malsua
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To: Malsua
it's about a Nation ( USA ) that is in a very deep moral decline and if this keeps up the people of this countries destiny is slavery.

God will not be mocked.
28 posted on 06/26/2003 8:49:51 PM PDT by TLBSHOW (The Gift is to See the Truth)
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To: Malsua
I'm not a homo. However, I could care less what two consenting folks do. This decision simply removed the government from it. How is this a bad thing?

Scalia's dissent, and Thomas' note in addition, addressed this directly. In brief: This is a bad thing because of the reasoning.

The Court was asked to decide whether a Texas law violated the Constitution. They were supposed to read the law and the Constitution and point to any conflicts if they existed. They didn't. They bloviated about their own feelings on the matter as if they were a legislature.

It wasn't even terribly nuanced. They basically said, things had changed, the times were different, so now we strike down this law. No real attempt to pretend it was even a matter of the Constitution at all. Just their personal preference.

That's why this is a bad decision, no matter what you think about gay sex.

29 posted on 06/26/2003 9:21:35 PM PDT by Snuffington
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To: mikenola
Today's ruling was sound. Contrary to many FReepers I believe there is a constitutional basis for the "right to privacy" grounded in Amendment IV, "search and seizure". This is defacto privacy.

The amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So unless the Texas law ordered their police to rush into bedrooms without warrants obtained as specified above, the law complied with the amendment.

It is, in fact, absurd to argue otherwise, since every one of the original thirteen states had anti-sodomy laws. Do you think they understood the Constitution less than yourself?

30 posted on 06/26/2003 9:43:36 PM PDT by Snuffington
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To: Brad Cloven
It's time for some defiance! Someone in Texas, the governor, the legislature, attorny general, should stand up and say "NO!. Texas does not recognize this ruling. It is clearly a states perogative according to the 10th Amendment to have such a law and we will not submit."
31 posted on 06/27/2003 5:02:47 AM PDT by rebel
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To: Malsua
You want the feds out of your life but you support their elimination of states rights! These are inconsistant positions.

If you eliminate states rights the only thing to fill the vacumn is the federal government.

The way things are going we may as well get rid of the states. If the people of a state are not allowed to make their own laws in areas that are not delegated to the federal government (the 10th amendment) then what use are they except to make electing federal officers more orderly.

IF homo's do not want to live in a state where sodomy is illegal then they should move. After all, it's a free country.....isn't it?
32 posted on 06/27/2003 5:12:14 AM PDT by rebel
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To: Malsua
My response to you can be summed up here:

Here
33 posted on 06/27/2003 9:17:21 AM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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To: Malsua
Stop the BS about cousins, children or whatever. This is about legal adults who make their own decisions.

a) People interested in being incestuous quite certainly can do it consensually. Are you saying two adult cousins can't consensually decide to have intercourse with each other, no matter how abhorrent it is?

b) Wait a sec, I thought this decision was about "privacy in the bedroom." Now you're saying it just applies to "homosexual privacy in the bedroom." So basically, this was just a political decision, basically about tolerance of gays, not whether the government has a right to be in our bedrooms. I guess government still has a right to be in some of our bedrooms, just not gay people's or other politically powerful interest groups.

Wow, what a principled decision the SC made. Bravo.
34 posted on 06/27/2003 9:23:56 AM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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To: TLBSHOW
Justice Scalia, in his dissent, articulated this sentiment well:

“The court has largely signed on to the so-called homosexual agenda… The court has taken sides in the culture war.”

Actually, what they've done is declared that "culture wars" are none of the government's business, and it should not take sides.

-Eric

35 posted on 06/27/2003 9:33:48 AM PDT by E Rocc
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To: Conservative til I die
"You do realize that sex between fathers and daughters, uncles and nieces, mothers and sons, brothers and sisters, cousins and cousins can be consensual, don't you?

You're argument is totally emotional."

Then let me be very specific for you. Sex between a father and minor daughter is illegal, and will stay illegal for some very good and logical reasons.

As for the others you mention above, if the sex is consensual and nobody is a minor, while it may be disgusting I suppose it is legal and should remain out of the oversight of the government.

36 posted on 06/27/2003 2:00:05 PM PDT by DaGman
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To: AmishDude
I said: "The government has a plethora of compelling reasons to keep sex between a father and daughter or nieces very illegal just a it does for bigamy and other crimes."

You said: "Name one.

Oh, one that will not be trumped by "privacy".

Whether or not a government should be in a person's bedroom is quite a different matter as to whether or not it is constitutional."

That almost doesn't deserve an answer, but I'll give you one. The absolutely devastating emotional and even physical damage and that is done to a young female (or even male) child when molested by the adult father or any other adult is the most compelling reason for the government to keep child molestation illegal.

37 posted on 06/27/2003 2:06:24 PM PDT by DaGman
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To: DaGman
One more time: I said adult children.
38 posted on 06/27/2003 2:58:08 PM PDT by AmishDude
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To: Conservative til I die
How much authority do you grant the state? Could they outlaw heterosexual sex? Would you accept it as legitimate if they outlawed the eating of pork because it says so in the Bible? Are there no limits to what a state can intrude into?

The supreme court says there are limits and by my lights the limits are very constraining on the state. I do not grant any human the right to tell me what is moral so long as I don't interfer in the rights of others.

39 posted on 06/27/2003 2:59:17 PM PDT by muir_redwoods
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To: DaGman
Then let me be very specific for you. Sex between a father and minor daughter is illegal, and will stay illegal for some very good and logical reasons.

Nice try. I never mentioned a "minor" daughter. I mentioned consenting adults. But at least you are fair enough to realize that if you tell the government to get out of gay bedrooms they also have to get out of incestuous perverts' bedrooms as well. Unfortunately others on this thread want to have their cake and eat it too by saying that somehow the "right to privacy" only extends to gays and not to other assorted perverts.

Sorry folks, this right to privacy is ALL OR NOTHING.
40 posted on 06/27/2003 3:18:30 PM PDT by Conservative til I die (They say anti-Catholicism is the thinking man's anti-Semitism; that's an insult to thinking men)
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