Posted on 04/14/2003 8:26:43 PM PDT by Hobsonphile
That leaves me out then. I have nothing nice to say about their "practices", their "lifestyle" or their "agenda." I believe they are immoral, psychologically disturbed, and ultimately, in this politically correct society, dangerous to moral fabric, children, and to the status of public health.
But at least I didn't call them names.
Which, as I said in my reply to nmh, is all I ask.
I'm a little bemused to find I'm a woman without a country, so to speak, on this issue. In other circles, I've had the fire of hell rained down on me for daring to mention that giant elephant in the living room of gay culture- sexual promiscuity and its threat to the health of gays, particularly gays my age. Yet here, if I express any sympathy whatsoever towards gays, I am branded by some of you as a full-on apologist. This is not so. I have always stepped forward to protect a person's right to criticize the gay agenda- I embrace people, not lifestyles.
I suppose most of the negativity I feel about the subject of homosexuality is directly attributed to the in-your-face advocacy from that 'community'. There are also the promiscuous aspects of the primarily male homosexuals that I find to be indicative of a psychological element that is very unhealthy. I, and I suppose most heterosexuals, will never accept homosexuality as normal, because we know fundamentally that it is not. Combine that with the politically correct manner in which no discussion into the more unhealthy aspects can occur in the public forum and the manner in which homosexuality it "taught" to school children, and the negative feelings increases.
On the other hand, I have an aunt that has lived with the same woman for 40 years. I love them both and think of both of them as my aunts. Whatever their 'lifestyle' may be doesn't matter to me at all ... they do not promote anything other than 2 people living life and seeing the world. They are not intent on indoctrinating anyone into any 'understanding' except by the example they lead in living healthy happy lives.
If they were the prototypes for 'gay activism' then there would be no issues whatsoever for me.
Center for the Original Intent of the ConstitutionIt is a settled constitutional principle within our federal republic that states possess general police powers. Inherent within these powers lies the duty to regulate the "health, safety, and morals" of their members. Barnes v. Glen Theater, 501 U. S. 560, 569 (1991) (referencing public indecency statutes which were designed to protect morals and public order). States have used this police power to promote marriage and direct the sexual activities of their citizens into marriage by criminalizing a wide variety of nonmarital sex acts, such as polygamy, rape, fornication, adultery, prostitution and incest. While crimes such as rape and incest are not consensual, adultery, prostitution, polygamy and fornication are private acts between consenting adults that have been regulated throughout our nation's history. As we shall demonstrate, states have possessed and properly exercised the authority to regulate deviate sexual conduct including sodomy at all relevant times in our nation's history.
American Center for Law and Justice This Court should affirm the judgment rejecting petitioners' equal protection claim. This case has been litigated under the rational basis standard; hence, as this Court explained in Heller v. Doe, 509 U. S. 312, 319 (1993), it would be wholly improper and unfair to inject a new standard here. Moreover, because there is no fundamental right at issue and because the record does not even identify what supposed suspect or quasi-suspect class petitioners belong to, heightened scrutiny is in any event unjustified. Under rational scrutiny, the ban on same-sex sodomy clearly passes constitutional muster. There are at least three, independently adequate, rational bases for the statute. First, a ban on same-sex sodomy permissibly furthers public morality. Second, the extensively documented health risks of same-sex sodomy supply a strong public health rationale for the statute. Third, based upon the view of all nine Justices in Bowers, as well as this Court's other "privacy" decisions, a state could reasonably conclude that, to minimize the likelihood of constitutional attack and invalidity, a ban on sodomy needed to exclude heterosexual acts. Importantly, the distinction between heterosexual and homosexual unions is the hallmark of marriage law. To invalidate that distinction here would be tantamount to holding marriage unconstitutional.
II. PETITIONERS' SUBSTANTIVE DUE PROCESS CHALLENGE FAILS.
As Justice Stevens wrote for a unanimous Court, As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. . . . The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. Collins, 503 U. S. at 125 (citation omitted).
Alabama, South Carolina, and Utah (State Attorneys General)
Presently, some fourteen States, including amici, have criminal statutes prohibiting either homosexual sodomy alone or all extramarital sodomy. Many States also discourage homosexual activity through policies regarding, for example, same-sex marriage, child custody, adoption, and foster parenting. And many States have laws that regulate other kinds of private consensual adult sexual activity, such as polygamy, incest, pedophilia, prostitution, and adultery.
Amici are concerned that, if this Court should adopt petitioners' expansive and undisciplined interpretation of the Constitution, many if not all of these laws will be invalidated. Petitioners' interpretation of the Constitution would limit the ability of the States to express and preserve the moral standards of their communities. Under the Constitution, the States should be free to legislate in such sensitive areas as family definition, child-rearing, and sexual conduct. Absent a mandate in the text or history of the Constitution, it is not for the federal courts to decide what is right and what is wrong for all 50 States in the Union. The people, not the courts, should decide such fundamental issues for themselves.
A. Guiding Citizens to Good Morals is a Cen-tral Purpose of the Law…. the Western legal tradition has long recognized that one of the primary purposes of the law is to steer the people to good morals.
Over 2300 years ago, Aristotle opined that "virtue must be the care of a state which is truly so called. . . ." ARISTOTLE, POLITICS Bk. 3, Pt. IX (Benjamin Jowett, trans. in 2 THE COMPLETE WORKS OF ARISTOTLE, Princeton, 1984) This concept of the purpose of government is central to the Western tradition: "It is, above all, the belief that law and politics are rightly concerned with the moral well-being of members of political communities that distinguishes the central [Western] tradition from its principal rivals." GEORGE, supra 20.
C. Any interest in personal autonomy does not extend so far as to invalidate a long-standing criminal prohibition. 1. Glucksberg recognized the limits of personal autonomy.
In Glucksberg, as here, the Court was confronted with private, consensual conduct between adults. Relying on this Court's decisions in Planned Parenthood v. Casey 19 , and Cruzan v. Director, Missouri Dept. of Health 20 , as do Petitioners here, the physicians in Glucksberg asserted a fundamental liberty interest in "personal autonomy" and "self-sovereignty." 21 The Court refused to transform the limited protections afforded such interests into an absolute and unlimited right: "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." 521 U. S. at 727 (emphasis added).
The Court further held that the Washington statute easily met the low bar of the rational basis test. It noted, too, that "[ t] o hold for respondents, we would have to reverse centuries of legal doctrine and practice." Id. at 723. 22
2. Personal autonomy should not intrude on the broad discretion accorded the states to enact morals legislation. As a matter of sound policy, imposition of a limit on the reach of morals laws on the basis urged by Petitioners must be rejected. That there are limits to a state's police power is certain. But the discretion afforded the states in the exercise of that power to protect the health, safety and morals of its citizens is, and of necessity must be, exceed-ingly broad. While "the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion 'is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests. ' " Holden v. Hardy, 169 U. S. 366, 392, 18 S. Ct. 383, 42 L. Ed. 780 (1897) (quoting Lawton v. Steele, 152 U. S. 133, 136, 14 S. Ct. 499, 38 L. Ed. 385 (1894)); see also Barbier v. Connolly, 113 U. S. 27, 31, 5 S. Ct. 357, 28 L. Ed. 923 (1885) (" neither the [14th] amend-ment – broad and comprehensive as it is – nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, educa-tion, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity").
IV. STRIKING THE STATUTE WOULD DESTROY THE ONGOING POLITICAL DEBATE ON HOMOSEXUAL RIGHTS AND UNDERMINE THIS COURT'S OWN MORAL AUTHORITY.
Center for Arizona Policy Laumann's research also reveals that heterosexuals engage in anal sex even less than oral sex: "anal sex has not entered into the repertoire of regular sexual practices of most women and men in the United States." Laumann, supra, at 107. This study found that only one-quarter of men and one-fifth of women have experienced anal sex over a lifetime, and is far less frequent than that in any given year of life. Id. Heterosexuals were also 79% less likely to find anal intercourse as "very appealing" compared to vaginal intercourse. Laumann et al., supra, at 152-155, Table 4.2.
Because oral and anal sex are primary means of sexual activity between individuals of the same sex (APA Br. at 22-23), and such is not the case with heterosexual couples, it should be considered that the Texas law has reasonably and narrowly drawn their prohibition of "deviate sexual intercourse" to those couples where it is most likely to take place. The Texas law may also contemplate the higher rates of sexually transmitted diseases which are related to certain sexual behaviors, and seeks to prohibit behavior associated with a higher prevalence of sexually transmitted infections (not only HIV/ AIDS) and sexually associated infections and other illnesses. Laumann et al., supra, at 396.
It is well-documented that as the number of sexual partners rise, the likelihood of having a partner with a sexually transmitted infection also rises. Laumann et al., supra, at 403; see generally Hickson et al., supra. As has been noted, homosexuals have a much greater number of sexual partners, 23 as compared to heterosexuals, and engage in sexually riskier activity, 24 therefore, there are serious health considerations implicated in same-sex sexual activity which should be taken into account when a legislature proscribes certain sexual activities.
Center for Law and Justice International The Center for Law and Justice International (CLJI) is a project of Catholics United for Life, a lay Catholic 501 C (3) organization. The CLJI seeks to advance the Catholic perspective on human life and human sexuality issues through litigation, education, and similar activities in accordance with the Magisterium of the Catholic Church.
Finally, and most importantly, overruling Bowers v. Hardwick and holding that a right of intimate association including all sexual activities between consenting adults is a fundamental right will eventually wreak havoc on many of the Nation's laws governing marriage. All such laws, including laws against adultery, polygamy, polyandry, and incest become susceptible to the claim that they burden the right to intimate association and thus deserve strict scrutiny. As this Court well knows, very few laws survive strict scrutiny.
If society is in fact moving toward a national consensus about sexual morality, then the foundational principle of collective self-government requires this Court to permit the States to follow their chosen courses. Forcing the States' hands without any basis in Constitutional text or legal history will threaten the Court's legitimacy and undoubtedly cause the same national discord occasioned the last time this Court found a new substantive due process right that was untethered to Constitutional text or national history. See Roe v. Wade, 410 U. S. (1973).
For at least two decades now, this Court has been leery of "turning any fresh furrows in the 'treacherous field' of substantive due process." Troxel v. Granville, 539 U. S. 57, 76 (2000) (Souter, J., concurring). As Justice Powell explained in Moore v. City of East Cleveland, 431 U. S. 494 (1977):
[W] e "have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court.
Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. That history counsels caution and restraint.
Concerned Women for America
D. Protecting Public Morals, Health and Safety Is A Rational, If Not Compelling Reason, To Prohibit "Deviate Sexual Intercourse"
The Court's decisions in Griswold establishing a fundamental privacy protecting marital intimacy and its holding in Eisenstadt v. Baird, 93 that there was no rational reason for the dissimilar treatment of married and unmarried persons who were similarly situated, should not be extended to same-sex sodomy. The fact that Texas does not criminalize opposite sex sodomy should not be construed as bias or animus toward homosexuals. It is entirely rational to presume that the Texas Legislature's decision to decriminalize opposite sex sodomy in 1973 was a response to this Court's rulings in Griswold and Eisenstadt, and to protect marital intimacy and opposite sex relationships that are likely to result in marriage. The Legislature's decision is certainly rational in light of Justice Stevens' dissent in Bowers: Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within 'the sacred precincts of marital bedrooms, ' Griswold, 381 U. S., at 485, or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U. S., at 453. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code. 94
The fact that the prohibited conduct is called "deviate" should not be construed as evidence of legislative animus or bias toward homosexuals. Historically and currently, juries are instructed that in judging obscenity they may find that the prurient appeal requirement is met if the material is designed for and primarily disseminated to a clearly defined deviant sexual group including homosexual conduct. Justice Brennan writing for the Court in Mishkin v. New York 95 referred to material "depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, …." 96 Whenever the state regulates conduct for the sake of public morality, it is a policy-based determination made by the legislature that the conduct in question addresses, thereby affecting the morality of the citizens of that state. It is perfectly valid for the state to make a legislative decision that reflects a deeper moral choice. Thus, the concern for the public morality is not limited to nonconsensual conduct or conduct that occurs in public. "Public morality" should be construed to mean the morality of the public, not merely morality in public. As noted above, unless the conduct is protected by some constitutional right, it may be validly proscribed by the state's police power.
Family Research Council & Focus on the Family
II. SEXUAL INTIMACIES WITHIN MARRIAGE ARE CONSTITUTIONALLY PROTECTED; NON- AND EXTRA-MARITAL SEXUAL ACTS ARE NOT AND MAY BE DISCOURAGED.
V. STRICT SCRUTINY IS NOT REQUIRED BE-CAUSE THE LAW NEITHER DISCRIMINATES AGAINST A SUSPECT CLASS NOR BURDENS A FUNDAMENTAL RIGHT.
Is constitutional scrutiny more rigorous than the "rational basis" test required in this case? It is, if the legislation discriminates against a suspect class, or if the law burdens a fundamental right.
No suspect class is involved. Neither homosexuality nor the inclination (whatever exactly it might be called) which leads one to violate the Texas statute is constitu-tionally suspect. The challenged law, in fact, disturbs no one for possessing any particular affection or sexual orientation: neither homosexuality nor any other affection or taste is the line drawn by the law. Those who commit acts forbidden by the law constitute the class of persons who are not married and can never be married – but who nevertheless seek sexual satisfaction with another by the proscribed means. A plausible argument for special – indeed, the highest – constitutional protection of this class of persons is hard to imagine. Poe, Griswold and many other cases falsify any such argument. 29
A. States Have the Right to Promote the Institution of Heterosexual Marriage
Petitioners invite this Court to view the Texas sodomy statute in a vacuum, ignoring the right of states to promote the institution of heterosexual marriage and how the statute falls within that legislative preference.
[N] o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilizations.
B. States Have the Right to Regulate Consensual Sexual Conduct
The law "is constantly based on notions of morality, and if all laws representing moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Bowers, 478 U. S. at 196. While governments are "obliged to show equal respect to persons qua persons" they are not obliged to show equal respect "to all of the persons' acts and choices." Robert P. George, MAKING MEN MORAL 102 (1993); see also Dent, supra, at 586 (government may promote or discourage conduct because it believes that the conduct benefits or harms the individual, even if the individual does not agree). Prohibiting behavior deemed unacceptable or immoral is precisely what law does: it limits one's freedom to act in ways that cause harm to the individual or to society.
States are justified in enforcing a societal morality as a means of self-preservation because "social bonds constituted by shared moral beliefs are placed in peril when the law tolerates actions that are generally considered to be wicked." George, supra, at 51-52, 73; see also Barnes v. Glen Theatre, Inc., 501 U. S. 560, 575 (1991) (" all human societies have prohibited certain activities not because they harm others but because they are considered immoral"). "Without morality, the foundations of our liberty will crumble, because there will be no moral compass differentiating between right and wrong." Stephen Daniels, Intolerant Tolerance: The Weapon of Moral Relativism at 4 (available at www. ncfpc. org/ policypapers. html); see also George, supra, at 36-37 (" Perhaps every generation must learn for itself that 'private' immoralities have public consequences. . . . It is plain that moral decay has profoundly damaged the morally valuable institutions of marriage and the family, and has, indeed, largely undercut the understandings of the human person, marriage, and the family"). 6
III. DEREGULATING HUMAN SEXUAL RELATIONS WILL ERODE THE INSTITUTION OF MARRIAGE
B. Current Strategies to Redefine Sexuality and Marriage
The core purpose of the Equal Protection Clause "is to prevent the States from purposefully discriminating between individuals on the basis of race." Shaw v. Reno, 509 U. S. 630, 642, 113 S. Ct. 2816 (1993). It was not intended "to interfere with the power of the state . . . to prescribe regulations to promote the health, peace, morals, education, and good order of the people." Barbier v. Connolly, 113 U. S. 27, 3, 5 S. Ct. 357 (1884). In fact, it has been recognized that a State can rarely legislate without discriminating against one group or another. Sullivan v. U. I. L., 616 S. W. 2d 170, 172 (Tex. 1981). By definition, the prohibition of one form of conduct over another results in discrimination against those who may or may not participate in the conduct so legislated.
The Court has at no time recognized homosexuals or other participants in sexually-defined conduct as protected classes for Equal Protection purposes. In Board of Education of Oklahoma City v. National Gay Task Force, 729 F. 2d 1270, 1273, aff'd. 470 U. S. 903 (1985), the court affirmed the ruling of the 10th Circuit Court on this point, saying "We cannot find that a classification based upon the choice of sexual partners is suspect." It has also addressed the issue in the negative by denying review of lower decisions finding no such protection, see, Rowland v. Mad River Local School District, 730 F. 2d 444 (6th Cir. 1984), rehearing denied 470 U. S. 1009 (1985). A denial of review is no less appropriate in this case. There is no confusion in the laws as suggested by Petitioners. (Petitioners' Brief at p. 9).
II. HOMOSEXUALS ARE NOT A DISADVANT-AGED CLASS FOR PURPOSES OF EQUAL PROTECTION ANALYSIS
Petitioners argue that many lesbians, gays, and bisexuals have suffered longstanding social and economic discrimin-ation. These groups of persons are portrayed as dis-advantaged groups. This is misleading and contrary to established law.
III. REGULATING SAME-SEX AND OPPOSITE-SEX CONDUCT DIFFERENTLY IS PERMIS-SIBLE DUE TO GREATER PUBLIC HEALTH RISK OF SAME-SEX CONDUCT
Petitioners assert that "As a matter of equal protection, bare condemnation of one group of people— whether termed a moral judgment, a value judgment, or simple dislike— cannot sustain a classification like the Homosexual Conduct Law under any level of scrutiny." [Petitioners' Brief at p. 9]. This is a strawman argument.
IV. RECENT SOCIAL TRENDS ARE NOT A SUFFICIENT BASIS FOR OVERRULING BOWERS V. HARDWICK
INTEREST OF AMICI CURIAE 1 Amici are Texas Senators and Representatives who represent the people of Texas. Amici believe this case is about the right of the people and their duly elected repre-sentatives to determine State policy regarding marriage, the family and sexual conduct outside of marriage. The variety of State laws and policies on this contentious issue, and the changing nature of these laws within the States is a sign of the health of our democratic republic.
Petitioners ask the Court to take this issue out of the public debate and discussion and determine for all States a deeply controversial public policy issue found nowhere in the Constitution. Amici believe this would be a serious mistake and would have implications far broader than the statute in this case. Because of Amici's more complete understanding of the Texas laws and legislative history and Amici's understanding of additional State interests to support the challenged law, Amici believe their brief will be of assistance to the Court.
A. The record and law do not support a right of privacy claim.
2. Section 21.06 is part of a myriad of state laws promoting marriage and discourag-ing sexual activity outside of it. In evaluating whether § 21.06 is rational, the Court should consider that the provision is one part of a larger network of laws designed to further the legitimate State interest of promoting traditional marriage of one man and one woman.
The laws regarding marriage which provide both when the sexual powers may be used and the le-gal
and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.
III. JUDICIAL INTERVENTION INTO CONTESTED POLITICAL QUESTIONS DISRUPTS THE PRO-PER POLITICAL STRUCTURE AND HARMS THE NATION.
The Constitution embodies a delicately balanced power structure, both horizontally and vertically. Horizon-tally, the separation of powers confers on each branch the means "to resist encroachments of the others." THE FED-ERALIST NO. 51, at 349 (J. Madison) (J. Cooke ed., 1961). Vertically, principles of federalism require special atten-tion when the Court is put in the position of piercing the silence of the record with its own "findings of fact," espe-cially when those "facts" can be based only on the bare assertions of petitioners and their amici without support in the record. A factual record, missing in this case, is essential.
Petitioners rely heavily on the fact that many States have repealed their sodomy and fornication laws. See Petitioners' Brief at 24, Lawrence (No. 02-102). According to petitioners, the Texas legislature is out of step with the legislatures of other States and must be forced by this Court to bend to the will of the majority of States. This is akin to asking the Court to control the conduct of one State at the behest of another. See New York v. New Jersey, 256 U. S. 296 (1921) (the Court at least required clear and convincing evidence before exercising its power to control the conduct of one State at the behest of another in an effort to promote federalism); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594 (1952) (Frankfurter, J., concurring) (" The Framers, however, did not make the judiciary the overseer of our government").
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