Top Senator Backs Amendment Banning Gay Marriage

Both Bowers and Lawrence discussed the history of the law of sodomy in connection with discussing the argument that there is a right that includes homosexual sodomy. Bowers used basically honest history to show that we have a long legal tradition of prohibiting sodomy, which certainly undercuts any idea that we have a constitutional right to commit it. Lawrence used tendentious lawyers' history to try to deny Bowers's point.

I agree with you on the issues here. I too, left to myself, would have gotten rid of sodomy laws. I too deplore the way Lawrence got rid of them. But Lawrence's dishonest history is part of the problem.

Isn't it our 5th Amendment (I could be wrong here, didn't take the time to double check) that protects us against unreasonable searches and siezures? If a fundamental right to privacy can't be presumed, WHAT CAN BE???!!!???

The operative words there are "unreasonable" and "fundamental"...

What actions/activities exactly would be covered by "a fundamental right to privacy"? What is an "unreasonable search"?

Let's say you're driving down the street after drinking a 12-pack of your favorite brew, and the police stop you for running a stop sign...that's reasonable. They book you for DUI too (although I think you can refuse a breathalizer - sic - on grounds of self-incrimination?)...that's still reasonable. However, if they then search your car, that's not reasonable, as even if they discovered illegal drugs or weapons, they had no cause based on your actions to suspect you did. Likewise, if you're sitting in your own back yard after drinking a 12-pack and just minding your own business, the "feds" can not book you just in case you might decide to get in your car and drive somewhere, nor can they search your property, etc... So even if you are engaged in "illegal activities", you have the right to not get caught unless there's a good "reason" for it...

Unfortunately, the Supremes did not use either this argument, or the right to "equal protection", in ruling on the Texas lawsuit, but instead used the case to "construct" a "right to privacy" as the basis for legalizing a very specific kind of behaviour, and overturning several states' laws in the process. Which finally (!) brings me back to the point that, while I agree with the repeal of sodomy laws, which are mostly archaic or unenforced anyway, I cannot agree with either the method (Supreme Court "fiat" rather than state legislative repeal, which has been done elsewhere) or the basis which presumes a "fundamental right to privacy", simply because this method and basis can and doubtless will be used to "de-criminalize" all sorts of activities and further all kinds of social policies...

That's just not the way to do, it, folks! (still wonder why the most liberal interest groups are so adamant about Supreme Court nominees? it ain't just the "right" to choose...it's all those other "rights" still just waiting to be found, too!)

In the original police raid that sparked the Lawrence case, did the cops have a sworn warrant showing probable cause that sodomy was going on, to justify this invasion of a home and the siezing of people who would otherwise be entitled to be secure in their persons?

This was initially ostensibly a "drug raid" so I'd presume the police had a warrant, or else the case would have been thrown out. No drugs were found, but instead the couple "in flagrante delecto", and the raid was rumored to have been a "set-up" by a neighbor "informant"...which leads to the question, why on earth did the police decide to prosecute?! I could see if they'd found "illegal guns" instead of "illegal drugs", but "illegal sex"?! Makes you wonder about the specificity of the warrant, too...

I ask again: If privacy -- and private behavior that doesn't involve illegal drugs, coercision, violence or other illegal activities that clearly have a basis for being illegal -- is not one of the rights retained by the people, what is?

I knew we were actually on the same page here! It is! I agree with you, since you added the "doesn't involve illegal activities" restriction to the "fundamental right to privacy" idea...

Now the question is, how is it determined what activities/actions "clearly have a basis for being illegal"? I'm probably getting onto shaky ground here, but this is where I have a problem with the Supreme Court mandating that sodomy is legal under a "right to privacy" (or more accurately, that laws forbidding sodomy are "unconstitutional" in general)...it seems to me that this is exactly the sort of thing that should be legislated at state or even local levels, since as you point out:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

It seems to me the Supremes should indeed have ruled the Texas law unconstitutional, but, on the basis of "equal protection", since sodomy was only forbidden for gays, and not for anyone else. The law in fact created a "minority group", whereas overturning it "equalized" the status of all Texans. However, instead of simply ruling on the constitutionality of the law as written, the Supremes decided to rule on the actual legality of the act being regulated by the law (in this case, sodomy). In short, by ruling that any laws forbidding sodomy are unconstitutional, they're in effect creating a "law" that says "sodomy is legal".

Once they start with these "arbitrary value judgements" based on the "changing culture", you have your "living, breathing constitution" since when you think about it, you could make a case under the broad freedoms for a "right" to almost anything short of outright criminal behaviour! (why is it illegal to have sex with a sheep? really? obviously no sane person would, but sheep are really just "property", despite animal welfare laws, and why should I care if someone wants to do that in the privacy of their own home? **sigh** speaking of, I'm going out in my back yard to drink a 12-pack of my favorite brew, LOL!)

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