'Scalia Constitution' is scary

"The Bill of Rights was part of the agreement and includes (to this day) the power for states to legislate in areas not delegated to the Federal gov't (Amendment X)."

That power is reserved to the states OR "THE PEOPLE." (My emphasis.) In other words, Amendment X does not give even ONE power to the states...because ALL of the powers denied to the federal government may be retained by THE PEOPLE. So under the 10th Amendment, MAYBE states could legislate against sodomy...but MAYBE the power to address sodomy is retained by THE PEOPLE (such as church groups speaking out against sodomy).

"The Constitution does not delegate the power to legislate in the arena of sexual relations to the Federal gov't."

I agree, that's absolutely correct.

"Therefore, the states retain that power."

The states OR "The People." There's a huge difference. The Tenth Amendment doesn't reserve any powers for the states, because of the "or The People" clause.

"But now the Supreme Court has abridged that power, contrary, I believe, to the clear original intent of the Constitution."

Another issue arises here: the Fourteenth Amendment, passed after the Civil War. That amendment addressed, among other issues, the Black Codes of the post-Civil-War South, that attempted to write laws that only applied to blacks. The Fourteenth Amendment requires that all "persons" are given equal protection of the laws.

Since the Texas law legislated against homosexual sodomy, but NOT heterosexual sodomy, it was a pretty clear violation of the Fourteenth Amendment's "equal protection" clause.

"...but it now appears that an amendment giving the definition of marriage will be necessary to prevent the eventual Supreme Court ruling forcing all states to recognize gay marriage whether they want to or not. This should not be necessary."

I don't agree. Such an amendment IS necessary, under the Constitution, as currently written. Article IV, Section 1 of the Constitution requires that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

That is why every state must honor "quickie" marriages and divorces filed in Nevada. In a similar manner, if one state begins granting marriage licenses to same-sex couples, under the Constitution, such licenses must be given "full faith and credit" in all 50 states.

So under the Constitution, a constitutional amendment WILL be necessary, if some states want to avoid honoring marriage licenses to same-sex couples given by other states.

Personally, I think such a Constitutional amendment probably won't pass. It will be close, but I don't think the votes are there.

"So "being homosexual" does not mean "living the homosexual lifestyle" or "engaging in homosexual sodomy"."

Homosexuals engaging in "homosexual sodomy" is redundant. Sodomy is the only sex that two homosexuals can engage in.

To have a law against homosexuals engaging in sodomy is essentially saying, "Homosexuals must be celibate." I don't think any heterosexual would accept a law requiring that heterosexuals remain celibate, so it's pretty hypocritical for heterosexuals to support laws against sodomy. It's especially hypocritical if heterosexuals only support laws against homosexuals engaging in sodomy. In fact, it's not only hypocritical, it's advocating that government violate the 14th Amendment's "equal protection" clause.

The states OR "The People." There's a huge difference. The Tenth Amendment doesn't reserve any powers for the states, because of the "or The People" clause.

Oh. So the writers and ratifiers of the tenth amendment included the phrase "are reserved to the States respectively" for no good reason. If, as you say, "The Tenth Amendment doesn't reserve any powers for the states, because of the 'or The People' clause", then are all state laws unconstitutional? You are the first person I know to suggest that all state laws are unconstitutional because the Tenth amendment reserves powers to the people, to the exclusion of the States.

Another issue arises here: the Fourteenth Amendment

No, it doesn't arise here. The Fourteeneth Amendment was not a deciding factor in Justice Kennedy's majority decision.

Addressing your comments, but not in the order you gave them:

1) "I suppose it's pretty hypocritical for 'adultophiles' to outlaw sex with minors, for according to your logic, that's 'the only sex a pedophile can engage in'."

No, the situation isn't analogous. Laws against sex with minors are based on the concept that minors cannot consent to sex. That's why there are separate "statutory" rape laws, as opposed to rape of a person over the age of consent. So I don't agree that there is a parallel between laws against sex with minors, and laws against sex between consenting adults. The first situation doesn't involve both people consenting, the second situation does.

2) "Outlawing homosexual sex, however, is something that societies have been doing for thousands of years."

Yes, and slavery has existed for thousands of years...the vast majority of man's recorded history, in fact. That doesn't make slavery morally right. (Except maybe to a conservative.)

More relevantly, Southern states passed and enforced segregation laws for a majority of the years since the passage of the 14th amendment to the present. But that does NOT make "separate but equal" morally right. Even more important, it does NOT make "separate but equal" OK under the 14th Amendment's Equal Protection Clause.

So the fact that Texas has gotten away with violating the 14th Amendment's Equal Protection Clause against homosexuals for over many years, doesn't mean that Texas is morally OR legally right. It just means that there haven't been enough judges on the Supreme Court willing to enforce the 14th Amendment's protections for homosexuals. Whereas they have been willing to do so for blacks, at least since 1954's Brown vs. Board of Education...or perhaps since 1967's Loving vs. Virginia. (Loving vs. Virginia being the Supreme Court ruling that struck down anti-miscegenation laws.)

3) "The reverse of this logic, that homosexuals should have a right to homosexual sodomy and heterosexuals should have a right to heterosexual sodomy, would break the 14th Amendment."

It doesn't violate the 14th Amendment to have both acts be LEGAL! The 14th amendment doesn't RESTRICT individual rights, it increases them.

4) "In Texas, heterosexuals are also forbidden from engaging in homosexual sodomy."

Yes, just as Whites were forbidden from drinking from Colored fountains. Just as, under the Black Codes (and miscegenation laws), Whites were also forbidden from marrying Blacks, just like Blacks were forbidden from marrying Whites.

If Whites are also forbidden to marry Blacks, isn't it OK under the Fourteenth Amendment's Equal Protection clause, for Blacks to be forbidden to marry Whites?

The answer is, according to both logic and the Supreme Court (not that I have any respect for the Supreme Court!), "no." It's not OK, under the Fourteenth Amendment's Equal Protection clause, because, among other things, there are typically many more Whites than Blacks in various parts of the United States.

So the majority (Whites) are writing laws that restrict the options of the minority more than they restrict the options of the majority. That's EXACTLY the type of law that the 14th Amendment's Equal Protection Clause was attempting to address.

And that's exactly why a law that prevents sodomy among two people of the same sex--a small minority desiring such sex--is a violation of the 14th Amendment's Equal Protection clause.

"Oh. So the writers and ratifiers of the tenth amendment included the phrase "are reserved to the States respectively" for no good reason."

No, the writers and ratifiers of the tenth amendment had a very good reason for including BOTH "reserved to the States"..."or The People." They included BOTH because they wanted to show that the Tenth Amemdment was designed to:

1) Restrict power of the federal government to what is enumerated in the Constitution, but

2) Nneither increase NOR decrease the powers of the State governments, beyond what already existed.

"If, as you say, "The Tenth Amendment doesn't reserve any powers for the states, because of the 'or The People' clause", then are all state laws unconstitutional?"

No, obviously not. Re-read the Tenth Amendment. It does not take any power AWAY from the states...but it also does not give any power TO the states. The only thing it does is clearly RESTRICT the federal government to the powers "enumerated" (listed) in the Constitution.

"You are the first person I know to suggest that all state laws are unconstitutional because the Tenth amendment reserves powers to the people, to the exclusion of the States."

Geez, you're dense. I suggested no such thing. Look up the word "or" in the dictionary. The Tenth Amendment reserves powers not given to the federal government to the states OR The People. The Tenth Amendment doesn't give any powers TO the states, but it also doesn't take any powers AWAY from the states.

The Founding Fathers were frickin' geniuses. It's a shame that so many people can't follow their very simple language. (And it's a disgrace that judges can't...or won't.)

I wrote, "Another issue arises here: the Fourteenth Amendment."

You replied, "No, it doesn't arise here. The Fourteeneth Amendment was not a deciding factor in Justice Kennedy's majority decision."

That means nothing to me. I have nothing but contempt for every single one of the 9 judges on the U.S. Supreme Court. They take an OATH to follow the Constitution, but they are either incompetent or dishonest, or both...because they don't even come close to following the simple language of the Constitution.

P.S. Sandra Day O'Connor was at least able to pick up on the fact that the Texas sodomy law violated the 14th Amendment's Equal Protection clause. So I have slightly more respect for her than before. But I had zero respect for her to start with, so that isn't saying much:

http://wikipedia.com/wiki/Lawrence_v._Texas

"But do you not contend that states DO NOT have the power to legislate against sodomy under the US Constitution?"

I do indeed contend that the Texas statute against homosexual sodomy is a violation of the 14th Amendment's "Equal Protection" clause.

The 14th Amendment's "Equal Protection" clause was passed after the post-Civil-War Southern states enacted various "Black Codes"; laws targeted against blacks.

For example, Southern states had laws where it was a crime for a black to insult a white...but not any other combination (i.e., white insult a black, or black insult a black, or white insult a white).

Southern states also passed anti-misegenation laws, forbidden blacks and whites from marrying.

The basic idea of the "Equal Protection" clause is to eliminate laws where the majority deliberate targets the minority with a law, where the majority aren't affected by the law.

So, I think that a law that specifically targets homosexual sodomy, without also criminalizing heterosexual sodomy, is exactly the type of law the 14th Amendment was intended to address.

So, the short answer is that I think the 14th Amendment's "equal protection" clause the part of the Constitution that prohibits states like Texas from specifically criminalizing only homosexual sodomy.

I don't really have a firm opinion on the Constitutionality of laws, like the one in North Carolina, that criminalize both homosexual and heterosexual sodomy. I do know that, as a resident of North Carolina, I won't ever obey that law (other than the homosexual part ;-)).

And as a juror, I would never vote to convict either a heterosexual or homosexual charged under the statute.

P.S. There was a move, a few years ago, to repeal the North Carolina law. I don't think it got voted on, though:

http://www.sodomylaws.org/usa/north_carolina/north_carolina.htm

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